United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
issue is Defendant Office of Navajo and Hopi Indian
Relocation's (“ONHIR”) Rule 12(b)(1) Motion
to Dismiss Count II of the Complaint (Doc. 17, MTD), to which
Plaintiff has filed a Response (Doc. 20, Resp.), and
Defendant has filed a Reply (Doc. 23, Reply). No party
requested oral argument, and the Court finds the matter
appropriate for resolution without such argument.
See LRCiv 7.2(f). For the reasons set forth below,
the Court will grant Defendant's Motion and dismiss Count
II of the Complaint.
case stems from Plaintiff's challenge to ONHIR's
final agency decision on August 17, 2016, which denied
Plaintiff's application for relocation assistance
benefits pursuant to the Navajo-Hopi Land Settlement Act
(“Settlement Act”), Pub. L. No. 93-531, 88 Stat.
1712 (1974). Congress passed the Settlement Act in response
to a land dispute between the Navajo Nation and Hopi Indian
Tribes in Northern Arizona, where both tribes claimed
ownership over a large area of land. Settlement Act §
1(a); see Healing v. Jones, 210 F.Supp. 125, 192 (D.
Ariz. 1962). The Act created the Navajo and Hopi Indian
Relocation Commission (“the Commission”), and
charged it with splitting the disputed land fairly and evenly
between the Navajo Nation and Hopi Indian Tribe. Settlement
Act § 12. The Act further required that the Commission
relocate members of both tribes who, at the time, lived on
land partitioned to the tribe of which they were not a
member. Settlement Act § 14(a). Congress also made funds
available to those tribal members who were forced to
relocate, provided the relocated party met certain
qualifications. Settlement Act §§ 14-15. In 1988,
Congress restructured the Commission, renaming it as ONHIR.
Pub. L. No. 100-666, 102 Stat. 3929 (1988).
is an enrolled member of the Navajo Nation who submitted his
application for relocation benefits to ONHIR, pursuant to the
Settlement Act, on August 31, 2010. ONHIR later denied the
application, finding Plaintiff failed to satisfy the
requirements for eligibility. After appealing the denial of
benefits, Plaintiff was granted an administrative hearing
before an Independent Hearing Officer, who affirmed
Complaint, Plaintiff seeks review of ONHIR's decision
denying his application for relocation benefits, alleging
that the denial was “arbitrary and capricious”
and not supported by substantial evidence. Plaintiff
additionally alleges that ONHIR's “actions and
inactions” while reviewing and denying his application
for relocation benefits violate the APA and breach
ONHIR's fiduciary duty to Plaintiff. Defendant now moves
to dismiss Count II of Plaintiff's Complaint for lack of
subject matter jurisdiction.
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may attack either the allegations of the
complaint as insufficient to confer upon the court subject
matter jurisdiction, or the existence of subject matter
jurisdiction in fact.”Renteria v. United
States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing
Thornhill Publ'g Co. v. Gen. Tel. & Elecs.
Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where
the jurisdictional issue is separable from the merits of the
case, the [court] may consider the evidence presented with
respect to the jurisdictional issue and rule on that issue,
resolving factual disputes if necessary.”
Thornhill, 594 F.2d at 733; see also Autery v.
United States, 424 F.3d 944, 956 (9th Cir. 2005)
(“With a 12(b)(1) motion, a court may weigh the
evidence to determine whether it has jurisdiction.”).
The burden of proof is on the party asserting jurisdiction to
show that the court has subject matter jurisdiction. See
Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090,
1092 (9th Cir. 1990). “[B]ecause it involves a
court's power to hear a case, ” subject matter
jurisdiction “can never be forfeited or waived.”
United States v. Cotton, 535 U.S. 625, 630 (2002).
the Administrative Procedure Act (“APA”), a
district court may review agency action. 5 U.S.C. § 706.
If the court finds that that agency action was
“arbitrary, capricious, an abuse of discretion, not in
accordance with law, or unsupported by substantial evidence,
” the court may reverse or set aside the decision. 5
U.S.C. § 706(2)(a), (e). When reviewing an agency
action, “the focal point for judicial review should be
the administrative record already in existence.”
Camp v. Pitts, 411 U.S. 138, 142 (1973). “As a
general rule, if a petitioner fails to raise an issue before
an administrative tribunal, it cannot be raised on appeal
from that tribunal.” Reid v. Engen, 765 F.2d
1457, 1460 (9th Cir. 1985).
Count II of the Complaint, Plaintiff alleges that Defendant
breached its fiduciary duty to Plaintiff by failing to notify
Plaintiff of his purported eligibility for relocation
benefits under the Settlement Act. (Compl. ¶¶
38-47.) Thus, Plaintiff contends that Defendant's
“actions and inactions” violated the APA. (Compl.
the APA itself does not require a petitioner to exhaust his
administrative remedies, a petitioner may only seek relief
under the APA from final agency action on an issue.
See Darby v. Cisneros, 509 U.S. 137, 153 (1993).
This is, in part, because “the function of the district
court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.” Occidental Eng'g Co.
v. INS, 753 F.2d 766, 769 (9th Cir. 1985). It is only a
rare circumstance that permits a district court to engage in
de novo factfinding. Id. Thus, courts
routinely find jurisdiction lacking over claims that a
petitioner failed to raise at the administrative level and
over those challenges to agency action which is not yet
final. See, e.g., Reid, 765 F.2d at 1460; Bahe
v. Office of Navajo and Hopi Indian Relocation, No.
CV-17-08016-PCT-DLR, 2017 WL 6618872, at *6 (D. Ariz. Dec.
28, 2017) (“As an initial matter, Plaintiff's
[breach of fiduciary duty claim] is waived because she did
not raise it during the administrative proceedings.”),
appeal filed, No. 18-15271 (9th Cir. Feb. 20, 2018).
neither alleges in his Complaint, nor argues in his Response
that he raised the claims in Count II before ONHIR. And the
Court finds no evidence in the record to support such an
allegation or argument if one had been made. (Doc. 18, R.)
This Court lacks jurisdiction to adjudicate Plaintiff's
claim because ONHIR has not taken final agency action on the
issue. Moreover, to the extent that the Complaint
attempts to challenge ONHIR's “inactions”
under § 706(1), Plaintiff's claim fails as a matter
of law. Under § 706(1), a petitioner may “assert
that an agency failed to take a discrete agency action that
it is required to take.” Norton v. S. Utah
Wilderness All., 542 U.S. 55, 64 (2004). However, the
APA only authorizes that the Court “compel” that
“legally required” action. Id. at 63
(citing 5 U.S.C. § 706(1)). Here, Plaintiff is
undoubtedly aware of his potential eligibility for benefits
under the Settlement Act and ONHIR has adjudicated his
application. Accordingly, no such “legally
required” action remains for this Court to compel and
Plaintiff's claim thus fails.
IS THEREFORE ORDERED granting Defendant's Motion
to Dismiss Count II of ...