United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Alvin Whitehair, a member of the Navajo Nation, sought
judicial review of the administrative decision by the Office
of Navajo and Hopi Indian Relocation (“ONHIR”)
denying him relocation benefits under the Navajo-Hopi
Settlement Act. Doc. 1. The parties filed motions for summary
judgment, and the Court denied Plaintiff's motion in part
and granted it in part, remanding for further proceedings.
Doc. 20. Defendant filed a notice of appeal, but later
dismissed it. Docs. 22-24.
now moves for attorneys' fees of $15, 468.53 pursuant to
28 U.S.C. § 2412, the Equal Access to Justice Act
(“EAJA”). Doc. 25. The motion is fully briefed.
Docs. 28, 29. The Court will grant the motion.
the EAJA, a court shall award to a prevailing party the
attorneys' fees incurred by that party in any civil
action brought against the United States, unless the United
States' position was “substantially
justified.” 28 U.S.C. § 2412(d)(1)(A); see
also Decker v. Berryhill, 856 F.3d 659, 663-64 (9th Cir.
2017). The government has the burden of showing that its
position was substantially justified. Tobeler v.
Colvin, 749 F.3d 830, 832 (9th Cir. 2014).
“Substantially justified” means “justified
in substance or in the main - that is, justified to a degree
that could satisfy a reasonable person.” Id.
(quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)). In other words, the government's position must
have a “reasonable basis in both law and fact.”
Id. (quoting Pierce, 487 U.S. at 565).
“The ‘position of the United States' includes
both the government's litigation position and the
underlying agency action giving rise to the civil
action.” Id. (quoting Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013)).
full background and the parties' summary judgment
arguments are set out in the Court's December 6, 2018
summary judgment ruling. See Doc. 20. In sum,
Plaintiff, as a Navajo applicant for relocation benefits, had
the burden to prove that he was (1) a legal resident of the
Hopi Partitioned Lands on December 22, 1974, and (2) a head
of household on or before July 7, 1986. 25 C.F.R. §
700.147. Only the second element was in dispute - a status
which Plaintiff could prove by demonstrating that he
“actually maintained and supported” himself.
See Doc. 20 at 2, 7; see also 25 C.F.R.
argued before the Hearing Officer that he satisfied the
head-of-household element for several reasons, which the
Officer ultimately rejected. The Officer accepted
Plaintiff's testimony that he operated a vending machine
business in 1985 and 1986, but rejected Plaintiff's
purported income of $20, 000 as unsupported by the evidence.
The Hearing Officer stated specific and cogent reasons for
his credibility determinations as to Plaintiff and
Plaintiff's wife, and his findings were supported by the
evidence, save one. The Officer's decision was legally
flawed for failing to make specific findings about
Plaintiff's likely income during 1985 and 1986 and
whether Plaintiff actually maintained and supported himself
on less income than he claimed to have earned. Id.
contends that an award of attorneys' fees is appropriate
because the government's position was not substantially
justified. Docs. 25, 29. The government argues that its
position was substantially justified because the Court found
in favor of the Hearing Officer's decision in all
respects except one, citing the following findings from the
summary judgment ruling. Docs. 28 at 4; 20 at 8-9. The Court
found that the Hearing Officer provided specific, cogent
reasons for discrediting Plaintiff's testimony about his
income in 1985 and 1986; the determination that Plaintiff
failed to corroborate or substantiate his income claims was
not arbitrary and capricious; and the Officer's
determination that Plaintiff's marriage after the
relevant period did not provide a basis for head of household
status was supported by the evidence. Doc. 20 at 5-7.
sole issue before the Hearing Officer was whether Plaintiff
qualified as a head of household on or before July 7, 1986.
The Officer credited Plaintiff's testimony that he
operated a vending machine business in 1985 and 1986, but
rejected his estimated income. Yet the Officer made no
findings about Plaintiff's likely income from that
business, and he did not address whether Plaintiff otherwise
maintained and supported himself with that income. The Court
found this deficiency to be arbitrary and capricious because
the Officer “entirely failed to consider an important
aspect of the problem.” Id. (quoting
O'Keeffe's, Inc. v. U.S. Consumer Prods. Safety
Comm'n, 92 F.3d 940, 942 (9th Cir. 1996)).
“arbitrary and capricious conduct is not per se
unreasonable, ” Andrew v. Bowen, 837 F.2d 875,
878 (9th Cir. 1988), the Ninth Circuit has repeatedly stated
that when an agency's decision is unsupported by
substantial evidence it is “a strong indication that
the ‘position of the United States' [is] not
substantially justified, ” Thangaraja v.
Gonzales, 428 F.3d 870, 874 (9th Cir. 2005); see
Meier, 727 F.3d at 872. Indeed, the Ninth Circuit has
stated that “it will be only a decidedly unusual case
in which there is substantial justification under the EAJA
even though the agency's decision was reversed as lacking
in reasonable, substantial and probative evidence in the
record.” Thangaraja, 428 F.3d at 874 (internal
quotations omitted). While the government is correct that the
Court found in favor of the Hearing Officer's decision in
all respects except one, the Officer's decision was
clearly legally flawed for failing to address the principal
issue before him - whether Plaintiff maintained and supported
himself with income from his vending machine business. The
Court remanded for additional proceedings rather than simply
reversing, but cannot conclude that the Hearing Officer's
position had a “reasonable basis both in law and
fact” when he determined, based on no factual findings,
that Plaintiff failed to make a prima facie showing of
self-support. See Tobeler, 749 F.3d at 832; Doc. 20
government urges the Court to find its position substantially
justified because the Court “found multiple instances
where the Agency's determination was appropriate, and the
remand, in essence, addressed a singular insufficiency in the
administrative order itself, not the substance of the
decision.” Doc. 28 at 5. This characterization is not
accurate. While the Court disposed of all but one of
Plaintiffs arguments on review, the Court remanded for
additional proceedings on the dispositive issue - the amount
of Plaintiff s earned income in 1985 and 1986, and whether
Plaintiff actually maintained and supported himself as a head
of household. See 25 C.F.R. §§ 700.147,
700.69(a)(2). This singular insufficiency went to the heart
of Plaintiff s claim for benefits. The Court cannot conclude
that the Hearing Officer's position was “justified
to a degree that could satisfy a reasonable person”
when he failed to make the necessary findings to assess
Plaintiffs entitlement. See Meier, 727 F.3d at 872
(quoting Pierce, 487 U.S. at 565). Because
“the government's underlying position was not
substantially justified, [the Court] need not address whether
the government's litigation position was
government does not argue that the amount of fees Plaintiff
seeks is inappropriate. Doc. 28.
IS ORDERED that Plaintiffs motion for attorneys'
fees (Doc. 25) is granted. Plaintiff is