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Burnside v. Office of Navajo and Hopi Indian Relocation

United States District Court, D. Arizona

September 27, 2017

Laura Burnside; Polly Semallie; and Pauline White, Plaintiffs,
Office of Navajo and Hopi Indian Relocation, Defendant.



         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 cross-motion should be granted and that the plaintiffs' APA motion should be denied.[1]


         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 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]

         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 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 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 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 3½ 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. 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 3½ 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 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 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 ...

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