Annabelle Begay v. Office of Navajo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNABELLE BEGAY,
Plaintiff-Appellant,
v.
OFFICE OF NAVAJO AND HOPI INDIAN
RELOCATION, an Administrative Agency
of the United States,
Defendant-Appellee.
No. 21-16349
D.C. No. 3:20-cv-08057-DJH
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted November 15, 2022**
Phoenix, Arizona
Before: BYBEE and OWENS, Circuit Judges, and RAKOFF,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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This case arises from Annabelle Begay’s claim to receive relocation benefits
under the Navajo-Hopi Land Settlement Act of 1974 (“Settlement Act”), Pub. L. No.
93-531, 88 Stat. 1712. The Office of Navajo and Hopi Indian Relocation (“ONHIR”)
denied Ms. Begay’s claim. When Ms. Begay sought judicial review of ONHIR’s
decision, the United States District Court for the District of Arizona granted
summary judgment to ONHIR in an order which Ms. Begay now appeals. This court
has jurisdiction under 28 U.S.C. § 1291. Having reviewed the district court’s order
de novo, see Walker v. Navajo-Hopi Indian Relocation Comm’n, 728 F.2d 1276,
1278 (9th Cir. 1984), we affirm.
1. Ms. Begay argues that ONHIR’s decision was arbitrary and capricious
under the Administrative Procedure Act (“APA”) because ONHIR violated its own
procedures and relied on post-hearing evidence to reach it. The hearing officer
(“HO”) assigned to Ms. Begay’s case relied on affidavits and testimony from a prior
proceeding, in which Ms. Begay’s father, Roger Begay, claimed relocation benefits
under the Settlement Act. These materials, however, were not introduced into the
administrative record for Ms. Begay’s case. Instead, ONHIR put them before the HO
by quoting them in a post-hearing brief. Ms. Begay contends that ONHIR’s
procedures prohibit an HO from considering materials introduced in this way.
ONHIR responds that the HO was permitted to take administrative notice of the
materials in question.

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ONHIR is correct. As a general matter, an ONHIR HO is permitted to take
administrative notice of evidence that is not in the record. In other contexts, this
court has adopted a “rule of convenience” that permits an administrative law judge
to “take notice of adjudicative facts whenever the [administrative law judge] at the
hearing knows of information that will be useful in making the decision,” Banks v.
Schweiker, 654 F.2d 637, 640-41 (9th Cir. 1981) (alterations and internal quotations
omitted), so long as the applicant is provided with “notice and an opportunity to
respond to extra-record facts.” Getachew v. I.N.S., 25 F.3d 841, 845 (9th Cir. 1994).
The reasons for adopting this rule of convenience—that administrative law judges
must handle “a huge volume of cases,” and that they have an “affirmative duty . . .
for developing the facts fairly”—apply to hearings before an ONHIR HO. See Banks,
654 F.2d at 640-41 (providing these reasons); 25 C.F.R. § 700.313 (allowing HOs
to develop facts fairly).
In this particular case, the HO was permitted to take administrative notice of
the materials quoted in ONHIR’s brief but not placed into the record. Those
materials were useful to the HO’s decision because they bore on a key issue in
dispute, namely, whether Ms. Begay resided on Hopi Partitioned Land at the time
that was required for her to be eligible for relocation benefits under the Settlement
Act. The HO notified Ms. Begay that his decision relied on them. And Ms. Begay
had an opportunity to respond—an opportunity that she exercised—by filing a

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motion for reconsideration that objected to the use of the materials from Mr. Begay’s
proceeding. In this particular context, a motion for reconsideration is an adequate
opportunity to respond. Since the HO was permitted to take administrative notice of
the materials quoted in ONHIR’s brief, the HO’s reliance on them was not arbitrary
or capricious.
2. Ms. Begay also argues that ONHIR erred by misapplying the concept
of residence under the Settlement Act. First, Ms. Begay argues that the HO applied
the wrong definition of residence by failing to consider where she intended to reside.
Second, Ms. Begay argues that the HO’s residence determination was not supported
by substantial evidence.
Ms. Begay’s argument fails in both respects. To the extent that Ms. Begay
argues that the HO applied the wrong legal standard, she has forfeited that argument
by not raising it before the agency or the district court. See In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 922 (9th Cir. 2010). And substantial evidence
supports the HO’s determination that Ms. Begay did not reside on Hopi Partitioned
Land as of 1982. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). It is “a highly deferential standard of review.” Valentine v. Comm’r
Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). In this case, sworn affidavits

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and testimony from Mr. Begay’s proceedings, which occurred over twenty-five
years closer to the events in question than Ms. Begay’s hearing, indicated that she
resided and intended to reside outside of Hopi Partitioned Land starting in 1979.
While other evidence—chiefly, testimony at Ms. Begay’s hearing—pointed to a
contrary conclusion, the HO chose to discredit that testimony because it was
contradicted by sworn statements from Mr. Begay’s proceedings. That decision was
supported by substantial evidence.
3. Ms. Begay’s other arguments are without merit. Ms. Begay argues that
ONHIR’s decision was arbitrary and capricious because ONHIR granted relocation
benefits to her sister, Annette Begay, whose case was similar to Ms. Begay’s. But
there is a meaningful distinction between the two cases: the HO in Annette Begay’s
case did not receive the pertinent materials from Mr. Begay’s proceeding, while the
HO in Annabelle Begay’s case did. Ms. Begay also argues that ONHIR violated the
APA by submitting materials from Mr. Begay’s proceeding to the HO ex parte—
that is, without copying Ms. Begay or her counsel. But the record does not show that
ONHIR made such a submission; it shows only that ONHIR quoted those materials
in a brief, which itself was not submitted ex parte.
For the foregoing reasons, the order of the district court is AFFIRMED.

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