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No party has requested oral argument on these APA-related motions

and the Court concludes that oral argument would not aid the decisional process.

The Court notes that it discusses herein only those arguments raised

(continued...)

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Laura Burnside; Polly Semallie; and

Pauline White,

 Plaintiffs,

vs.

Office of Navajo and Hopi Indian

Relocation,

 Defendant.

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No. CV-15-08233-PCT-PGR 

 ORDER 

 

Among the motions pending before the Court are Plaintiffs’ Motion for

Summary Judgment (Doc. 48) and Defendant’s Cross-Motion for Judgment (Doc.

53), both of which pertain solely to the plaintiffs’ First Claim for Relief, entitled “APA

Violations,” in their Second Amended Complaint for Judicial Review (“SAC”) (Doc.

19). Having considered the parties’ memoranda in light of the Certified

Administrative Record (“CAR”), the Court finds that the defendant’s APA crossmotion should be granted and that the plaintiffs’ APA motion should be denied.1

 
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(...continued)

by the parties that the Court deems necessary for the resolution of the pending

motions.

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ONHIR was originally named the Navajo Hopi Indian Relocation

Commission (“NHIRC”). For the sake of simplicity, the Court will refer to the federal

agency as ONHIR even if NHIRC was the name of the agency on the date being

referred to.

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The regulation states in its totality:

(a) Any time limit specified for the filing of a claim or an appeal under the

regulations in this part may, on a case by case basis, be extended by the

Commission.

(b) The Commission may waive any requirement of these regulations in this

part if such requirement is not required by law and the Commission finds such

waiver or exception to be in the best interest of individual Indian applicants,

the Commission, and the United States. Any request for a Commission

waiver shall be submitted in writing to the Commission and shall be justified

(continued...)

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Background

 The plaintiffs in this action, Laura Burnside, Polly Semallie, and Pauline White,

all of whom are members of the Navajo Nation, are seeking review under the

Administrative Procedure Act (“APA”) of the final administrative decisions of the

Office of Navajo and Hopi Indian Relocation (“ONHIR”) denying their requests to

waive the deadline for filing appeals of ONHIR’s notices denying their claims for

relocation benefits.2

The administrative appeals of all of the plaintiffs were initially denied because

they were not timely filed. Pursuant to 25 C.F.R. § 700.13, ONHIR has the

discretion to waive the time limit for filing an appeal if it determines, on a case by

case basis, that the waiver is “in the best interest of individual Indian applicants, the

Commission [ONHIR], and the United States.”3

 Under ONHIR’s original Policy
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on a case by case basis.

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Paragraph 3 of the Revised Policy 9 states in its totality:

In determining whether a time limit for filing a claim or appeal under 25 CFR

§ 700.13, (a) (b), Policy, and the O.N.H.I.R. Management Manual, should be

extended under a reasonable good cause standard, the Office will consider the

following factors:

a. What circumstances kept applicant from making a timely request.

b. Applicant’s age and education.

c. Whether applicant had a physical, mental, educational, or linguistic

limitation (including no or little facility with the English language) which prevented

(continued...)

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Memorandum No. 9, ONHIR refused to consider any applicant’s request for a waiver

of the appeal time limit if that applicant had personally signed a return receipt for

ONHIR’s eligibility denial notice but failed to timely file an appeal; none of the

plaintiffs in this action qualified for a waiver under this original policy. 

Effective February 7, 2005, ONHIR issued its Policy Memorandum No. 9

(Revised) (“Revised Policy 9"), wherein it provided that it “may consider requests for

waiver of the time limit for filing an appeal of the Notice of Denial of Relocation

Benefits pursuant to 25 C.F.R. § 700.13(a) from those applicants from whom the

Office received personally signed return receipts but who did not timely file an

appeal.” The revised policy states that waiver requests will be “considered on a

case by case basis to determine whether good cause exists for missing a deadline.”

It also states that applicants are required to demonstrate reasonable good cause

explaining the circumstances which caused their failure to take timely action. It

further states, in its Paragraph 3, that ONHIR will consider seven factors in

determining whether an appeal time limit should be extended under the reasonable

good cause standard.4
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applicant from filing a timely request or from understanding or knowing about the

need to file a timely request for review.

d. Whether applicant received a Notice of Determination.

e. The length of time between applicant’s receipt of Notice of Determination

and the time applicant requested review.

f. Whether O.N.H.I.R. gave applicant incorrect, incomplete, or confusing

information about when and how to request administrative review.

g. Such other circumstances as may be determined in the discretion of the

O.N.H.I.R. which justify the extension of time.

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At some point, apparently sometime in 1985, ONHIR’s appeal deadline

was changed from 30 days to 60 days.

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A. Laura Burnside

Laura Burnside submitted her application for relocation assistance benefits on

March 17, 1982. ONHIR denied her application in a letter dated July 6, 1982; the

SAC alleges that Burnside received the denial letter on July 13, 1982. The denial

letter listed four reasons why Burnside was not eligible for relocation benefits, and

advised her that she had 30 days to file a written appeal or request a hearing. It

further advised her that the Navajo Tribe had made arrangements for her to be

represented by attorney Michael Stuhff in Flagstaff at no cost to her, and listed the

contact information for that attorney. 

 The Navajo-Hopi Legal Services Program (“NHLSP”) filed an appeal on

Burnside’s behalf on March 19, 1990, which was nearly eight years after she

received her denial letter. ONHIR rejected her appeal in a letter dated May 11, 1990

on the ground that the appeal was not filed within 60 days from the date Burnside

received the denial of her application.5

NHLSP submitted Burnside’s first request for a waiver of the appeal time limit

pursuant to Revised Policy 9 on June 29, 2010, along with an affidavit from Burnside
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and a letter from her son’s school, both for the purpose of explaining the

circumstances as to why she did not file a timely appeal. NHLSP’s waiver request

letter, based on Burnside’s affidavit, stated that her “good cause” for her untimely

appeal included the following: that at the time of the appeal, Burnside was 59 years

old; she had only attended school through the third grade, she understood limited

English and never learned to read or write English, and she did not know what to do

with the denial letter because she could not read it; her son, who was a high school

sophomore at that time, attempted to interpret the letter for her but because of his

dyslexia and unfamiliarity with legal terms he did not fully understand the letter,

particularly the appeal deadline; she and her daughter went to ONHIR’s Flagstaff

office several times in 1981 and 1982 to inquire about the status of both of their

applications, and that at one of those ONHIR visits in 1982, she was told by Joseph

Shelton, who never advised her to appeal, that “the horses have run off without you,”

which she understood to mean that ONHIR was not going to help her and there was

nothing more she could do.

ONHIR, through Christopher Bavasi, its Executive Director, replied to

NHLSP’s waiver request in a letter to NHLSP dated September 9, 2010. Bavasi’s

letter noted in part that while there may have been some basis for NHLSP arguing

that Burnside was not able to meet the time limit for appeals in the summer of 1982,

no justification was provided as to why the appeal was not filed until almost eight

years later; he also noted that no explanation was provided as to why NHLSP

delayed more than five years after Policy 9 was revised to submit Burnside’s waiver

request. Bavasi further noted that the case file did not contain anything suggesting

that Joseph Shelton had ever met with Burnside, and that Shelton had informed him

that he had never used the expression “the horses had run off” in either English or
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Navajo. Bavasi additionally noted that he needed more information regarding

Burnside’s eligibility for benefits. Bavasi concluded the letter by stating that “I will

provide NHLSP and Ms. Burnside with the opportunity to provide the information

referred to in this letter and not yet provided, and if you and she decide to provide

it, I will make a formal decision on the waiver request.”

NHLSP then waited until May 7, 2014 to submit a second request for a

Revised Policy 9 waiver on Burnside’s behalf. That request contained a

supplemental affidavit from Burnside, as well as affidavits from two of her children,

which addressed both the reasons for her delay in appealing and her eligibility for

relocation benefits. Regarding the “good cause” element for a waiver, NHLSP’s

second waiver request included, in part, the following supplemental information:

sometime in the summer of 1982, Burnside made her brother Eugene Lewis aware

of the denial letter and the two of them went to ONHIR’s office in Flagstaff in the first

half of August 1982; during that visit, Burnside spoke to three Navajo-speaking

ONHIR employees about her denial letter, one of whom advised her that she had

been denied and it was too late and another told her in Navajo that “the horse has

already gone,” and none of them told her she had the right to appeal even though

she was still within her appeal time; in December 1982, Burnside visited ONHIR’s

office with her son and they were told that her file could not be found, and her son

heard an ONHIR employee tell his mother at that visit that “the horses had already

left,” and that during another ONHIR visit by Burnside and her daughter, her

daughter heard Joseph Shelton tell her mother in Navajo that “the horses have run

off without you.”

ONHIR, through Director Bavasi, denied the waiver request in a letter dated

July 24, 2014. Bavasi stated in the denial letter that “given the provisions of ONHIR
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Policy Memorandum No. 9 (Revised) of February 7, 2005 and the extensive delay

in seeking and pursuing such a waiver, the waiver request is denied.” At the

conclusion of the letter, he summarized that the waiver request was being denied

because “[t]aken as a whole, there are insufficient grounds to grant the requested

relief.” 

In discussing the reasons for the denial, Bavasi noted in the denial letter that

Burnside’s first waiver request was filed more than twenty years after her benefits

application was denied. Bavasi further stated in the denial letter as follows:

The [first waiver] request was supported by documents attesting to the

fact that the Burnside household had limited English fluency. The 2010

letter also suggested that Ms. Burnside’s brother Eugene Lewis was not

available the day the denial letter was received to interpret it for her and

further suggested that at some time in 1982 Ms. Burnside had visited

NHIRC and been told by Joseph Shelton - with a Navajo expression

about the horses having run off - that it was then too late to file an

Appeal. 

On September 9, 2010 I responded to NHLSP and declined to

grant the requested waiver but offered NHLSP the opportunity to

provide additional information in several areas. Nothing was received

from NHLSP in response to my letter for more than 31⁄2 years. In my

letter I also explained that in discussions with Joseph Shelton he

denied ever using any expression about “horses having already run

off.”

Your May 2014 letter states that Ms. Burnside did consult with

her brother Eugene Lewis and he advised her to travel to Flagstaff to

meet with “ONHIR” (NHIRC) and that she and her brother did so. The

2010 NHSLP letter made no such claim. The 2014 letter refers to an

early August 1982 trip to NHIRC in Flagstaff, while the 2010 NHLSP

letter makes no such claim.

(I also note there is no document from Eugene Lewis supporting

his sister’s waiver request and there is no explanation of why Ms.
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Burnside and her brother did not meet with Michael Stuhff, Esq. [the

attorney named in the July 1982 denial letter as being the Flagstaff

attorney that the tribe had arranged to represent Burnside] while they

were in Flagstaff or why Ms. Burnside’s brother did not simply write an

Appeal letter for her to sign.)

While the 2010 NHLSP letter made no claim about Ms. Burnside

speaking with three male NHIRC employees, the 2014 letter and

affidavits make such a claim. There are credibility issues with

“additional information” which surfaces for the first time more than 31

years after the relevant time period and more than three years after

NHLSP’s 2010 letter.

NHLSP offers no reason why it waited more than five years to

seek a waiver after the 2005 revision in Policy Memorandum No. 9 or

why it took NHLSP more than 31⁄2 years to respond to my 2010 letter

and timeliness is one of the factors specified in the Policy Memorandum

to be considered when a decision is made to grant or not grant a

waiver.

NHLSP sent a letter to the ONHIR dated July 24, 2014, wherein it requested

that ONHIR issue a Final Agency Action (“FAA”) notice to Burnside. Someone

apparently with ONHIR sent Burnside’s NHLSP attorney an email on August 12,

2014, which stated that “[i]f neither you nor your client have any additional

information that you want Chris [Bavasi] to consider, please let me know and Chris

will issue the FAA letter you have requested.” ONHIR sent the requested FAA letter

regarding Burnside’s waiver request to NHLSP on August 14, 2014.

B. Polly Semallie

Polly Semallie submitted her application for relocation assistance benefits to

ONHIR on March 27, 1980. Between June 1982 and December 1984, ONHIR sent

four letters to Semallie requesting additional information regarding her eligibility for

benefits. ONHIR sent Semallie a letter in March 1985 stating that her application
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was being denied because she had not responded to ONHIR’s requests for

additional information. The letter advised Semallie that she had thirty days to

request an explanatory conference regarding the reasons for her application denial

or to request a hearing. She was further advised that the Navajo Tribe had arranged

for her to be represented by NHLSP and gave her the necessary contact

information. The SAC alleges that Semallie received the denial letter nine days after

it was dated. 

The Navajo-Hopi Development Office, part of the Navajo Nation government,

filed a written appeal to ONHIR for Semallie on May 14,1987, which was more than

two years after she received her denial letter. ONHIR rejected her appeal a few

days later as being untimely.

NHLSP filed a Revised Policy 9 request for a waiver of the appeal time limit

on Semallie’s behalf on March 25, 2015. The request contained information

concerning both why Semallie did not timely file an appeal and her eligibility for

relocation benefits, and included an affidavit from Semallie and documents from

ONHIR’s file of her grandmother who had been found eligible for relocation benefits.

Regarding Semallie’s “good cause” for requesting a waiver of the appeal deadline,

NHLSP’s request letter, based on Semallie’s affidavit, stated in part as follows: that

when Semallie received the appeal denial letter in March 1985, she had only five

years of schooling, she was living in a house with no telephone and no vehicle, she

was unable to read and understand written English and spoke only limited English

and her lack of English ability made it impossible for her to understand the denial

letter or any of the four previous letters ONHIR had sent her, and none of the family

members she then lived with could read or understand written English and were

unable to understand the denial letter. NHLSP’s waiver request letter argued that
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The CAR shows that the appeal was actually filed on Semallie’s behalf

by the Navajo-Hopi Development Office, not NHLSP. 

However, the CAR also shows that NHLSP was representing Semallie,

at the very latest, by the end of November 1988 when NHLSP sent ONHIR a signed

authorization for the disclosure of Semallie’s confidential information.

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Semallie met factor 3(c) of Revised Policy 9 because she had a “physical, mental,

educational, or linguistic limitation” that resulted in her inability to understand the

ONHIR’s communications.

Both Semallie’s affidavit and NHLSP’s request letter stated that Semallie did

not know about seeking legal assistance until the spring of 1987 when her niece told

her about NHLSP and she sought assistance from NHLSP in May 1987, and both

the affidavit and the request letter stated that NHLSP filed Semallie’s appeal for her.6

ONHIR, through Director Bavasi, denied Semallie’s waiver request on April 15,

2015. Bavasi’s denial letter, which acknowledged that the waiver request was made

pursuant to Revised Policy 9, stated in relevant part as follows:

I accept all the statements in your March 25, 2015 letter about

Ms. Semallie’s education and 1985 family situation as true, but, as your

letter makes clear, the [NHLSP] has been counsel for Ms. Semallie for

more than 27 years. Moreover, Policy Memorandum No. 9 (2005

revision) has been in effect for over 10 years and yet no such waiver

request was previously made.

With the passage of time, memories fade and witnesses die and

evidence that would have been available to Ms. Semallie, NHLSP and

ONHIR is no longer in existence.

Given the failure to submit a waiver request for many years after

such a request could have been submitted and the consequences of

that failure in terms of the ability for an accurate decision to be made on

such an appeal, I cannot grant the waiver request[.]

Pursuant to NHLSP’s request, the ONHIR sent a letter to NHLSP on April 29,
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2015, wherein it stated that Bavasi’s waiver denial letter constituted ONHIR’s final

agency action on Semallie’s waiver request.

C. Pauline White

Pauline White, who is Semallie’s sister, submitted her application for

relocation assistance benefits on September 9, 1981. Between mid-October and

late November 1984, ONHIR sent at least two letters to White seeking additional

information regarding her eligibility for benefits. ONHIR sent White a letter dated

March 12, 1985 stating that her application was being denied because she had not

responded to ONHIR’s letters seeking additional information; the SAC alleges that

White received the denial letter on March 18, 1985. The letter advised White that

she had thirty days to request an explanatory conference regarding the reasons for

her application denial or to request a hearing. She was further advised that the

Navajo Tribe had arranged for her to be represented by NHLSP and gave her the

necessary contact information.

NHLSP submitted a notice of appeal on White’s behalf on June 12, 1985,

which was three months after she received her denial letter. ONHIR sent NHLSP

a letter dated August 13, 1985 stating that White’s appeal was rejected because it

was not filed within 60 days from the date White received her notice of the denial of

her application for benefits.

White filed a second application for relocation benefits on April 6, 2009.

ONHIR denied the application in a letter dated April 14, 2009 stating that she had

failed to timely seek review of her initial denial and ONHIR had closed her case.

White did not appeal this second denial.

NHLSP filed a Revised Policy 9 request for waiver of the appeal time period

on White’s behalf on March 25, 2015. The request contained information concerning
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both the “good cause” for her untimely appeal and her eligibility for relocation

benefits, and included an affidavit from White. Regarding the waiver standard,

NHLSP’s letter, based on White’s affidavit, stated in part as follows: that White had

never attended school and had no formal education; she could not speak,

understand, read or write English aside from being able to sign her name; at the time

she received the denial letter, she was living in an isolated area with no telephone

and her family had no vehicle, none of the family members she lived with were able

to read or understand the denial letter as none could read English; her inability to

speak or read English made it impossible for her to understand the denial letter or

any of the previous letters sent to her by ONHIR seeking additional information

about her eligibility, and she did not know about seeking help with her application for

relocation benefits until she was told about NHLSP and she sought assistance from

NHLSP sometime in June 1985.

ONHIR, through Director Bavasi, sent NHLSP a letter dated April 17, 2015

which denied White’s request for a late appeal waiver. Bavasi’s letter, which noted

that the waiver request was made pursuant to Revised Policy 9, stated in part:

I accept all the statements in your March 25, 2015 letter about

Ms. White’s lack of a formal education and her 1985 family situation as

true, but, as your letter makes clear, the NHLSP has been counsel for

Ms. White for almost 30 years. Moreover, Policy Memorandum No. 9

(2005 revision) has been in effect for over 10 years and yet no such

waiver was previously made. (Even after Ms. White filed a “Herbert”

Application which was rejected on April 14, 2009 and NHLSP received

a copy of the rejection letter.)

With the passage of time, memories fade and witnesses die and

evidence that would have been available to Ms. White, NHLSP and

ONHIR is no longer in existence.

Given the failure to submit a waiver request for many years after
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such a request could have been submitted and the consequences of

that failure in terms of the ability for an accurate decision to be made on

such an appeal, I cannot grant the waiver request you submitted on

behalf of Pauline White.

Pursuant to NHLSP’s request, ONHIR sent a letter to NHLSP on April 29,

2015, wherein it stated that Bavasi’s waiver denial letter constituted ONHIR’s final

agency action on White’s waiver request.

Discussion

I. APA-Related Cross-Motions

The APA “sets forth the full extent of judicial authority to review executive

agency action for procedural correctness[.]” F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502, 513 (2009). The APA requires a reviewing court to uphold an

agency’s final action unless it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary and

capricious standard is “highly deferential, presuming the agency action to be valid[.]”

Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir.2006); accord, San

Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971, 994 (9th Cir.2014)

(“The arbitrary or capricious standard is a deferential standard of review under which

the agency’s action carries a presumption of regularity.”) Although the reviewing

court’s inquiry must be searching and careful in order to determine if the agency’s

decision was based on relevant factors and does not constitute a clear error of

judgment, the standard of review is ultimately a narrow one and the reviewing court

may not substitute its own judgment for that of the agency. Kern County Farm

Bureau, at 1076; San Luis & Delta-Mendota Water Authority, at 994; Fence Creek

Cattle Co. v. U.S. Forest Service, 602 F.3d 1125, 1132 (9th Cir.2010). Under this
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standard, the reviewing court is required to affirm the agency action “if a reasonable

basis exists for its decision.” Kern County Farm Bureau, at 1076; accord, San Luis

& Delta-Mendota Water Authority, at 994 (The reviewing court must sustain the

agency action under this standard “if the agency has articulated a rational

connection between the facts found and the conclusions made.”) An agency action

is arbitrary and capricious “if the agency has relied on factors which Congress has

not intended it to consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference

in view or the product of agency expertise.” Motor Vehicle Manufacturers Ass’n of

U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983).

In the APA context, summary judgment is the mechanism through which the

reviewing court determines as a matter of law whether the evidence in the

administrative record reasonably permitted the agency to make the decision it did.

Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir.1985). The Court

concludes that the plaintiffs have failed to create any question of fact that would cast

doubt upon the reasonableness of ONHIR’s waiver denials.

The plaintiffs allege in their APA claim in the SAC that ONHIR’s denials of

their waiver requests were “arbitrary, capricious, an abuse of discretion, not

supported by substantial evidence and ... not in accordance with applicable law”

because ONHIR inconsistently applied its Revised Policy 9. The plaintiffs raise two

basic, inter-related arguments in their APA-related memoranda: that ONHIR’s waiver

denials were arbitrary and capricious because ONHIR had previously granted waiver

requests from other applicants in factually similar cases, and because ONHIR

disregarded the plain language of Revised Rule 9 by not considering all of its seven
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factors and by relying on factors not included in the revised policy, i.e., the length of

time between when the revised policy went into effect in February 2005 and when

the waiver requests were filed, and whether the plaintiffs were represented by

counsel. 

As a general principle, an administrative agency must apply the same basic

standard of conduct to all parties before it and an agency’s decision may be

considered arbitrary if the decision is inconsistent with its other findings and it fails

to explain the discrepancy. Akee v. Office of Navajo & Hopi Relocation, 907 F.Supp.

315, 319 (D.Ariz.1995). In support of their disparate treatment argument, the

plaintiffs attached as exhibits to their summary judgment motion the waiver-related

documentation for nonparties Phillip and Jeanita Lane, Annie Clark, Duffy Jim

Bedonie, and Peter Furcap, all of whom had their Revised Policy 9 waiver requests

granted by ONHIR, as well as the waiver-related documentation for nonparties Ethel

Nez and Paul Jones, both of whom had their Revised Policy 9 waiver requests

denied. 

ONHIR objects to the admission of this submitted evidence since none of it is

part of the CAR, and argues that the Court has no jurisdiction to consider issues

pertaining to these other waiver applicants since it is undisputed that this extrarecord evidence and the plaintiffs’ disparate treatment arguments pertaining to that

evidence were not raised by the plaintiffs at the administrative level. ONHIR has

submitted its own extra-record evidence in the form of a declaration from Director

Bavasi which explains how ONHIR interprets its Revised Policy 9 and which

distinguishes the plaintiffs’ waiver decisions from those of the other non-party

applicants submitted by the plaintiffs; ONHIR requests the Court to consider Bavasi’s

declaration only if it considers the plaintiffs’ extra-record evidence.
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“Generally, judicial review of an agency decision is limited to the administrative

record on which the agency based the challenged decision.” Fence Creek Cattle

Co., 602 F.3d at 1131. The purpose of this rule is to ensure that the reviewing court

affords sufficient deference to the agency’s decision. San Luis & Delta-Mendota

Water Authority, 776 F.3d at 994. The Ninth Circuit allows expansion of the APA

administrative record by the reviewing court only in four narrowly construed

circumstances: (1) when the supplementation is necessary to allow the court to

determine if the agency considered all factors and explained its decision; (2) when

the agency relied on documents not in the record; (3) when the supplementation is

needed to explain technical terms or complex subjects; or (4) when the plaintiffs

have shown bad faith on the part of the agency. Fence Creek Cattle Co., 602 F.3d

at 1131. 

The plaintiffs contend that their additional evidence was not submitted as

extra-record evidence, but as support for their legal argument that the ONHIR failed

to follow its own Revised Policy 9, its prior interpretations of that policy, and its past

decisions under that policy. For purposes of resolving the parties’ APA-related

motions, the Court does not consider this to be a relevant distinction. The plaintiffs’

submitted evidence is extra-record evidence, and the Court deems that evidence to

be directed at the first exception, which is that supplementation of the record is

necessary to determine if ONHIR considered the relevant factors and explained its

decision. Although this exception permits a reviewing court to consider extra-record

evidence to “develop a background against which it can evaluate the integrity of the

agency’s analysis[,]” i.e., to help the court understand whether the agency’s decision

was arbitrary or capricious, the exception does not permit the court to use the extrarecord evidence to judge the correctness or wisdom of the agency’s decision. San
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Luis & Delta-Mendota Water Authority, 776 F.3d at 993.

The Court concludes both that the plaintiffs have not met their “heavy burden”

to show that the additional submitted documents are necessary for the Court to

adequately review ONHIR’s waiver denials, Fence Creek Cattle Co., 602 F.3d at

1131, and that the administrative record before it is sufficient to conduct its APA

review. Nevertheless, even if the Court were to consider the plaintiffs’ extra-record

evidence, the Court cannot conclude that this evidence is sufficient to show that

ONHIR’s denials of the plaintiffs’ waiver requests were patently inconsistent with

other ONHIR waiver-related decisions.

The plaintiffs contend that ONHIR’s resolution of the extra-record nonparty

waiver requests demonstrated how it interpreted and applied the factors listed in

Paragraph 3 of Revised Policy 9, and that ONHIR should have used the same

rationale for resolving the plaintiffs’ waiver requests; they further contend that two

of these other nonparty applicants, Annie Charley and Duffy Jim Bedonie, had

factually similar cases to the plaintiffs in that they, like the plaintiffs, had little or no

formal schooling and were traditional Navajo speakers who did not speak, read,

understand or write English, yet ONHIR granted their waiver requests.

The Court rejects the plaintiffs’ limitation on the scope of ONHIR’s discretion,

and concludes that ONHIR did not act arbitrarily or capriciously by evaluating the

plaintiffs’ waiver requests by focusing on Revised Policy 9-related factors it

considered, in the plaintiffs’ individual cases, to be relevant to the demonstration of

good cause for the extension of the appeal time limit. ONHIR’s authority to

determine whether a waiver should be granted is governed by 25 C.F.R. § 700.13,

which provides ONHIR with the broad discretion to waive the appeal time limit, on

a case by case basis, if it concludes that the waiver is “in the best interest of
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individual Indian applicants, the Commission, and the United States.” This governing

regulation places no other limitation on ONHIR’s discretion. Revised Policy 9 was

clearly not intended to be some new binding rule of substantive law narrowly limiting

ONHIR’s discretion, notwithstanding that it provides that ONHIR “will consider”

seven factors in exercising its discretion. That the intent of the revised rule is merely

to give guidance to ONHIR in the exercise of its regulatory discretion is made clear

given its statement that ONHIR “may consider” requests for waiver of the appeal

time limit “on a case by case basis” if it determines that the applicant has shown

“reasonable good cause.” Revised Policy 9 is simply a statement of agency policy.

See Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir.2010) (Court noted that an

agency directive that provides guidance to agency officials regarding their

discretionary power while preserving their flexibility and their opportunity to make

individualized determinations constitutes a general statement of policy.) As a

general rule, policy statements are not binding on an agency and “the agency retains

the discretion and the authority to change its position .. in any specific case.” Ass’n

of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 716 (D.C.Cir.2015). Because

ONHIR retains its broad discretion to resolve waiver requests on a case by case

basis using the factors provided by Revised Rule 9 as guidance, the Court agrees

with ONHIR that its informal, nonpublished decisions in other waiver cases do not

create binding precedent. See Laughter v. Office of Navajo and Hopi Indian

Relocation, 2017 WL 2806841, at *4 (D.Ariz. June 29, 2017) (Court rejected

NHLSP’s argument that agency decisions in other relocation benefits cases

constitute binding precedent).

In any case, the cases of the plaintiffs and those of the nonparties are at best

only partially factually similar, and ONHIR cannot be said to have disregarded its
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own precedents and policies in the plaintiffs’ cases by the manner in which it

resolved those other cases because the nonparty cases were not identically

resolved among themselves. This is evident from the following: ONHIR’s letter

accepting the late appeal of Philip and Jeanita Lane in November 2005 contained

no reasoning whatsoever, much less a discussion of any Revised Policy 9 factors;

ONHIR’s letter granting the waiver request of Annie Charley in February 2006 also

set forth no reason, although an ONHIR memo discussing the case noted that

“Policy No. 9 recognizes the applicant’s age, educational and linguistic limitations

among the factors to be considered in determining whether to grant a Waiver.”;

ONHIR’s letter granting the waiver request of Duffie Jim Bedonie in February 2006

stated that “this Waiver has been granted based solely upon your client’s inability to

read, write, or speak the English language as well as her lack of education, in

accordance with Items 3(b) and 3(c) of ... Revised Policy Memorandum No. 9[.] ...

No other factors alleged in your letter were considered in making this decision.”;

ONHIR’s letter denying Ethel Nez’s waiver request in June 2007, which noted that

she had not shown reasonable good cause for a waiver, did conclusorily go through

each Paragraph 3 factor, including noting as to factor 3(e), which considers the

“length of time between applicant’s receipt of Notice of Determination and the time

applicant requested review,” that “Applicant’s Petition for Waiver was received

approximately 30 months after the Denial.”; ONHIR’s letter denying the waiver

request of Paul Jones in September 2009, which assumed the truth of the factual

assertions presented in the waiver request, noted, without specifying any particular

Revised Policy 9 factor, that his failure to timely appeal was not excusable because

he had the intellectual capacity to understand the denial letter and had no illness or

other circumstances beyond his control that prevented him from taking timely action
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to appeal; and ONHIR’s letter granting Peter Furcap’s waiver request in July 2014

noted, without specifying any particular Revised Policy 9 factor, that an improper

delivery of his denial letter may have caused his late appeal.

The Court also rejects the plaintiffs’ assertion that ONHIR was obligated by

Revised Policy 9 to consider each of the Paragraph 3 factors and could not consider

any other factors in determining whether there was good cause to grant their waiver

requests. Nothing in 25 C.F.R. § 700.13, the governing regulation, or in Revised

Policy 9, mandates that the Paragraph 3 factors constitute an exhaustive list of

relevant factors, which is made clear by factor 3(g), which provides that ONHIR will

consider “[s]uch other circumstances as may be determined in the discretion of the

O.N.H.I.R. which justify the extension of time[,]” and neither requires that ONHIR

must assess each individual factor or must grant each factor identical weight, nor do

they direct that a waiver must be granted if an applicant meets one or more of the

listed factors. 

In any case, the plaintiffs’ argument that Revised Policy 9 does not permit

ONHIR to consider how long it took them to submit a waiver request after the

implementation of the revised rule or to consider that they had been represented by

counsel, or at least had access to counsel, for years prior to submitting their waiver

requests is simply unpersuasive. At the very least, factor 3(a), which looks to “[w]hat

circumstances kept applicant from making a timely request[,]” is broad enough to

reasonably permit ONHIR to focus on the timeliness of the waiver requests, which

is in effect an application of the equitable principle of laches. 

As the waiver denials point out, Burnside waited over five years after Revised

Policy 9 was implemented to request a waiver through NHLSP, notwithstanding that

NHLSP had first represented her before ONHIR fifteen years prior to the policy’s
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7

Peter Furcap, the other nonparty applicant whose waiver request was

granted, does not fit into this group because his appeal was denied more than eight

years after Revised Policy 9 went into effect and he filed his waiver request less than

eight months after his appeal was denied.

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revision date and twenty years prior to her waiver request. Semallie waited ten

years after the revised policy’s implementation notwithstanding that NHLSP had first

represented her some eighteen years before the revision date and some twentyeight years before her waiver request. White also waited ten years after the revised

policy’s implementation notwithstanding that NHLSP had first represented her over

nineteen years prior to the policy’s revision and almost thirty years before her waiver

request. 

These long delays alone distinguish the plaintiffs from the nonparty applicants

who were granted waivers, since the waiver requests of those applicants were made

in a considerably shorter period after the implementation of Revised Policy 9: the

Lanes filed their waiver request some six months after Revised Policy 9 went into

effect; Annie Clark filed her waiver request some eleven months after the revised

policy was implemented; and Duffy Jim Bedonie filed her waiver request one year

after the revised policy was implemented.7

Even if ONHIR solely relied on only one of the factors in Revised Policy 9, and

the plaintiffs’ denial decisions note that Director Bavasi considered other policy

factors such as the plaintiffs’ lack of knowledge of English, that does not make the

denials procedurally improper given ONHIR’s broad discretion. In light of the APA’s

highly deferential standard of review, the Court concludes that a reasonable basis

exists in the CAR for the denials of the plaintiffs’ waiver requests.
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8

ONHIR’s motion also sought summary judgment on the plaintiffs’ Third

Claim for Relief in the SAC, which alleged a violation of their equal protection rights,

but the parties subsequently jointly moved to dismiss this claim.

9

Although the plaintiffs have requested oral argument as to this motion,

the Court concludes that no oral argument is necessary because the parties have

had an adequate opportunity to provide the Court with the necessary evidence and

legal memoranda and oral argument would not aid the decisional process. Partridge

v. Reich, 141 F.3d 920, 926 (9th Cir.1988).

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II. ONHIR’s Due Process-Related Motion

Also pending before the Court is Defendant’s Motion for Summary Judgment

(Constitutional Claims) (Doc. 57), which pertains to the plaintiffs’ Second Claim for

Relief, entitled “Due Process,” in their SAC.8

 Having considered the parties’

memoranda in light of the relevant record, and the Court’s resolution of the plaintiffs’

APA claim, the Court finds that the motion should be granted because there is no

genuine issue of material fact and ONHIR is entitled to summary judgment on this

claim as a matter of law.9

The plaintiffs’ constitutional claim alleges that ONHIR violated their due

process rights “through its failure to follow its own regulations, guidelines, and/or

policies” inasmuch as it denied their waiver requests “without analyzing the seven

‘good cause’ factors of Policy 9, by adding factors not included in the revised Policy

9, by claiming evidence supporting Plaintiffs’ requests no longer exists or is

available, and without addressing the evidence attached to those Requests.”

ONHIR argues in part, and the Court agrees, that the due process claim fails as a

matter of law because the plaintiffs do not have a cognizable property interest in a

discretionary waiver of the appeal deadline.

The plaintiffs state that they are alleging a procedural due process claim.
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10

Because the Court is denying the plaintiffs’ due process claim as a

matter of law on the basis that they do not have a protected property interest, the

plaintiffs’ request for discovery on their due process claim pursuant to Fed.R.Civ.P.

56(d) is moot.

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Such a claim is analyzed under a two-step process: (1) whether the plaintiffs have

established the existence of a liberty or property interest which has been subject to

government interference; and (2) whether the plaintiffs have established that the

procedures attendant upon that deprivation were constitutionally insufficient. United

States v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir.2012). The Court does not

reach the second element because the plaintiffs have not made their threshold

showing that they were deprived of a constitutionally protected property interest.10

The plaintiffs argue that the property interest underlying their due process

claim is their right to the application of Revised Policy 9's good cause standard as

it is specifically defined by seven mandatory factors. The Court disagrees. A

constitutionally protected interest in a procedural requirement is created “only if the

procedural requirements are intended to be a significant substantive restriction on

decision making. If the procedures required pose no significant limitation on the

discretion of the decision maker, the expectation of a specific decision is not

enhanced enough to establish a constitutionally protected interest in the

procedures.” Clemente v. United States, 766 F.2d 1358, 1365 (9th Cir.1985)(internal

quotation marks and alteration omitted); accord, Town of Castle Rock, Colo. v.

Gonzales, 545 U.S. 748, 756 (2005) (Supreme Court noted that its cases “recognize

that a benefit is not a protected entitlement if government officials may grant or deny

it in their discretion.”); Gerhart v. Lake County, Mont., 637 F.3d 1013, 1019 (9th Cir.

2011) (In order to have a constitutionally protected property interest, the law or

regulation creating a legitimate claim of entitlement must impose significant
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limitations on the discretion of the decision maker, such as requiring that a benefit

be issued once certain requirements are satisfied.) As the Court has already

concluded, the regulation governing ONHIR’s authority to grant a waiver of the

appeal time limit, 25 C.F.R. §700.13, grants ONHIR broad discretion. Although

Revised Policy 9, the policy statement guiding ONHIR’s use of that broad discretion,

does state in its Paragraph 3 that ONHIR “will consider” seven factors, which the

Court has found to be a nonexhaustive list of factors, in determining whether a

waiver applicant has met the reasonable good cause standard, the phrase “will

consider” in and of itself does not impose any constitutionally significant restriction

on ONHIR’s discretionary authority to consider waiver requests since the revised

policy, read as a whole, simply does not mandate that a waiver must be granted

once certain requirements are met. See Doyle v. City of Medford, 606 F.3d 667, 672-

73 (9th Cir.2010) (Court stated that a “regulation granting broad discretion to a

decision-maker does not create a property interest[,]” and that while a statute “may

create a property interest if it mandates a benefit when specific non-discretionary

factual criteria are met[,]” it does so only if it imposes “particularized standards or

criteria that significantly constrain.”) (Emphasis in original). Therefore,

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 48) is

denied.

IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary

Judgment (Doc. 53) is granted and that the plaintiffs’ First Claim for Relief (APA

Violations) in their Second Amended Complaint for Judicial Review (Doc. 19) is

dismissed, and that the defendant’s administrative decisions denying the plaintiffs’

requests for waiver of the appeal time limit are affirmed.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment
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(Constitutional Claims) (Doc. 57) is granted and that the plaintiffs’ Second Claim for

Relief (Due Process) in their Second Amended Complaint for Judicial Review (Doc.

19) is dismissed.

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Stay the Constitutional

Claims Briefing Schedule and Defer Ruling on Such Claims (Doc. 61) is denied.

IT IS FURTHER ORDERED that the parties’ Stipulated Motion to Dismiss

Plaintiffs’ Third Claim for Relief (Equal Protection) (Doc. 72) is granted and that the

plaintiffs’ Third Claim for Relief (Equal Protection) in their Second Amended

Complaint for Judicial Review (Doc. 19) is dismissed.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

in favor of defendant Office of Navajo and Hopi Indian Relocation accordingly.

DATED this 27th day of September, 2017.