Shawnee Tribe v. Yellen

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
THE SHAWNEE TRIBE, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1999 (APM)
)
JANET L. YELLEN, 1 in her official capacity as )
Secretary of the Treasury, et al., )
)
Defendants. )
_________________________________________ )
)
THE MICCOSUKEE TRIBE OF INDIANS )
OF FLORIDA, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-2792 (APM)
)
UNITED STATES DEPARTMENT )
OF THE TREASURY, et al., )
)
Defendants. )
_________________________________________ )
)
PRAIRIE BAND POTAWATOMI NATION, )
)
Plaintiff, )
)
v. ) Case No. 21-cv-0012 (APM)
)
JANET L. YELLEN, in her official capacity as )
Secretary of the Treasury, et al., )
)
Defendants. )
_________________________________________ )

1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes the current Secretary of the
Treasury as the defendant in this case.
 MEMORANDUM OPINION AND ORDER

The Plaintiff Tribes in this consolidated action seek a preliminary injunction directing the

Secretary of the Treasury to make an immediate interim payment of undistributed funds under

Title V of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. 2 This is the

second preliminary injunction sought by Plaintiffs. They first individually requested orders

enjoining the Secretary from distributing Title V funds 3 to which they claim entitlement. 4 Pursuant

to the D.C. Circuit’s decision and instruction in Shawnee Tribe v. Mnuchin, 984 F.3d 94 (D.C. Cir.

2021), the court entered an injunction in favor of Plaintiff Shawnee Tribe on January 14, 2021,

that requires Treasury to withhold $12 million in Title V funds from further disbursement pending

resolution of the Shawnee Tribe’s claims on the merits. See Order, ECF No. 55. The motions

filed by Plaintiffs Miccosukee Tribe and Prairie Band Potawatomi Nation remain pending before

the court.

Plaintiffs now jointly request an order requiring the Secretary to make an immediate

interim payment to each Plaintiff from the remaining Title V funds and mandating that the amount

of those interim payments be (1) based upon a rational consideration of the Tribes’ population and

(2) in line with the amount previously distributed to other Tribes similar in size. See Pls.’ Joint

Mot. for Prelim. Inj., ECF No. 65 [hereinafter Pls.’ Mot.], at 8. Plaintiffs rest their demand for

injunctive relief on two claims under the Administrative Procedure Act (“APA”): (1) that

Treasury’s population-based methodology for determining the allocation of Title V funds was

2
Title V of the CARES Act appropriated $8 billion “for making payments to . . . Tribal governments,” 42 U.S.C.
§ 801(a)(1); id. § 801(a)(2)(B), for “necessary expenditures incurred due to the public health emergency with respect
to [COVID-19],” id. § 801(d)(1).
3
The bulk of the approximately $535 million in remaining funds were previously allocated to Alaska Native
Corporations (“ANCs”). The ANCs’ eligibility to receive Title V funds is dependent on a forthcoming decision by
the Supreme Court. See Yellen v. Confederated Tribes of the Chehalis Rsrv., Nos. 20-543 & 20-544.
4
See Ex Parte Mot. for TRO, ECF No. 3; Pl.’s Expedited Mot. for Prelim. Inj. & Incorporated Mem. of Law,
Miccosukee Tribe of Indians of Fla. v. U.S. Dep’t of Treasury, No. 20-cv-2792 (APM) (D.D.C.), ECF No. 5; Mot. for
Prelim. Inj., Prairie Band Potawatomi Nation v. Yellen, No. 21-cv-012 (APM) (D.D.C.), ECF No. 4.

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arbitrary and capricious, see 5 U.S.C. § 706(2)(A), and (2) that Treasury’s nonpayment of the full

Title V funds to which the Tribes claim entitlement constitutes agency action “unlawfully withheld

or unreasonably delayed,” id. § 706(1). See Pls.’ Mot. at 1–3.

As explained more fully below, the court denies Plaintiffs’ motion without prejudice.

Although the D.C. Circuit held in Shawnee Tribe that Plaintiffs were likely to succeed on the merits

of their arbitrary and capricious claim, see 984 F.3d at 102–03, the injunctive relief they presently

seek is greater than the APA permits. And as for their unreasonable delay claim, Plaintiffs have

not established a substantial likelihood of success at the present time. The agency has said that it

will announce a revised methodology for allocating the remaining Title V funds within a matter of

days—by April 30, 2021—and will disburse funds to Plaintiffs shortly thereafter. See Hr’g Tr.

(draft), Apr. 22, 2021 [hereinafter Hr’g Tr.], at 3–4; see also Status Report, ECF No. 62. Although

the court is sympathetic to the urgency of the matter, Treasury is making significant progress on a

solution, which weighs against judicial intervention at this time.

The court will, however, grant the Miccosukee Tribe’s and Prairie Band Potawatomi

Nation’s pending motions to enjoin Treasury’s distribution of a combined $9,647,063 in remaining

Title V funds pending resolution of this litigation or further order of the court. Those injunctions

will preserve the status quo and ensure that the disputed funds are not dissipated.

I. 5

The court begins its discussion with the specific terms of the injunction Plaintiffs seek.

Plaintiffs do not simply ask the court to force Treasury to make an interim payment, but direct the

agency to determine a payment amount consistent with two guiding principles: (1) that “Treasury

must determine the Plaintiff Tribes’ populations based upon a rational consideration of the

5
The court presumes the parties’ familiarity with the facts and procedural background and therefore does not
extensively recite them here.

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population information available to the agency (other than the [Indian Housing Block Grant

(‘IHBG’)] data [previously used]),” and (2) that “the interim distributions [] be the amounts

previously distributed to other tribes with equivalent populations[,] minus an amount necessary to

protect the interests of the other tribes and ANCs currently litigating CARES Act cases.” Pls.’

Mot. at 8. Plaintiffs argue that the court’s “broad equitable authority” allows it to impose these

“general legal boundaries” within which Treasury must act. Id. The court disagrees.

When an agency acts arbitrarily and capriciously, as Treasury is accused of doing here, the

APA authorizes courts to “hold unlawful and set aside [the] agency action.” 5 U.S.C. § 706(2)(A).

Thus, “[u]nder settled principles of administrative law, when a court reviewing agency action

determines that an agency made an error of law, the court’s inquiry is at an end: the case must be

remanded to the agency for further action consistent with the corrected legal standards.” PPG

Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995).

Plaintiffs rely on a narrow exception to this rule. The D.C. Circuit has held that

“extraordinary circumstances” could justify a “detailed remedial order[].” N.C. Fisheries Ass’n,

Inc. v. Gutierrez, 550 F.3d 16, 20 (D.C. Cir. 2008). Plaintiffs argue that such circumstances exist

here due to the COVID-19 pandemic. See Pls.’ Mot. at 5. But the D.C. Circuit has strongly implied

that “extraordinary circumstances” are not “extraordinary” in the equitable sense urged by

Plaintiffs, but rather they exist only when courts are permitted to “compel agency action” under

section 706(1) of the APA. See In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 751

F.3d 629, 634 (D.C. Cir. 2014). That is, the court’s authority to issue a detailed remedial order

“applies only to ‘discrete action’ that is ‘legally required . . . about which an official had no

discretion whatever.’” Id. (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 63–64 (2004));

see also Pub. Citizen, Inc. v. Fed. Energy Regul. Comm’n, 839 F.3d 1165, 1172 (D.C. Cir. 2016)

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(“Action is ‘legally required’ if the statute provides a specific, unequivocal command to an agency

or a precise, definite act . . . about which [an official has] no discretion whatever.” (internal

quotation marks omitted)).

That stringent standard is not satisfied here. The statutory provision that directs

disbursement of CARES Act funds to Tribal governments, section 801(c)(7) of Title V, does not

“specific[ally], unequivocal[ly] command” Treasury to adopt a methodology to allocate funds

under any criteria other than (1) the “amount paid . . . to a Tribal government” must be “based on

increased expenditures” and (2) “all amounts available . . . [must be] distributed to Tribal

governments.” 42 U.S.C. § 801(c)(7); see Shawnee Tribe, 984 F.3d at 100. Thus, as the

D.C. Circuit observed, section 801(c)(7) “gives the Secretary some discretion” in carrying out

Congress’s directive. Shawnee Tribe, 984 F.3d at 100. Such “discretion forecloses the detailed

order plaintiffs seek.” In re Long-Distance Tel. Serv., 751 F.3d at 634 (holding that it would have

been inappropriate for the trial court to issue an order of compulsion where the statute at issue

“afford[ed] the Secretary of Treasury great discretion to design the details”).

At oral argument, Plaintiffs pointed to Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001),

as the best case for their position, see Hr’g Tr. at 16, but Cobell does not help their cause.

Cobell was a case involving the federal government’s trust responsibilities toward Native

Americans. 240 F.3d at 1097. After finding that the defendant agencies had breached their

fiduciary duties, “the district court issued an order to compel . . . actions . . . unlawfully withheld

or unreasonably delayed.” Id. at 1107. As is relevant for our purposes, that order went beyond a

simple remand. See id. Specifically, the district court retained jurisdiction over the matter to

ensure the agency complied with its obligations on remand and also ordered the agency to revise

its policy and file “quarterly status reports setting forth and explaining the steps” it was taking “to

5
rectify the breaches of trust declared by the court.” Id. (internal quotation marks omitted).

On appeal, the government argued that because it had “no clear, specific ‘ministerial’ duties,” it

was “excessive interference” for the district court to issue such mandatory injunctive relief. Id. at

1109. The Circuit affirmed. In doing so, the court made clear that its decision turned on the fact

that the relief ordered by the district court was “relatively modest,” and although it forced the

government to “develop written policies and procedures,” it did “not tell the government what

th[o]se procedures must entail.” Id. (emphasis added). Plaintiffs here urge the court to do just the

opposite. They ask the court to tell Treasury what its interim payment methodology “must entail.”

Id. Cobell is thus not helpful to Plaintiffs.

In sum, although “mandatory as to the object to be achieved,” section 801(c)(7) of Title V

“leaves [Treasury] . . . discretion in deciding how to achieve it.” Norton, 542 U.S. at 66; see

Shawnee Tribe, 984 F.3d at 100. “It assuredly does not mandate, with the clarity necessary to

support judicial action,” that Treasury distribute funds within the confines of Plaintiffs’ requested

guardrails. Norton, 542 U.S. at 66. Accordingly, the court cannot grant the extraordinary remedy

that Plaintiffs demand.

II.

The CARES Act does mandate action in one respect: it directs Treasury to disburse Title V

funds within 30 days of March 27, 2020. 42 U.S.C. § 801(b)(1). Therefore, in theory, the court

could issue a narrower injunction compelling Treasury to make some payment by a date certain.

See Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-cv-1136 (APM), 2020 WL

3250701, at *4 (D.D.C. June 15, 2020) (compelling immediate payment of withheld Title V funds);

Hr’g Tr. at 39 (Defendants agreeing that section 706(1) gives the court the authority to compel

6
“quicker agency action”). But such judicial intervention is not warranted in the present

circumstances.

The court’s analysis is governed by the D.C. Circuit’s decision in Telecommunications

Research & Action Center v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984). See Agua Caliente

Band of Cahuilla Indians v. Mnuchin (Agua Caliente I), No. 20-cv-1136 (APM), 2020 WL

2331774, at *5–8 (D.D.C. May 11, 2020) (applying TRAC factors to an undue delay claim

involving a different tranche of Title V funds). Although some of the so-called TRAC factors tilt

in Plaintiffs’ favor, particularly the length of delay, see In re Pub. Emps. for Env’t Resp., 957 F.3d

267, 273–74 (D.C. Cir. 2020), “there is reason for the court to stay its hand for the time being,”

In re Ctr. for Auto Safety, 793 F.2d 1346, 1354 (D.C. Cir. 1986). The D.C. Circuit has refrained

from interceding in cases where the agency has demonstrated progress in carrying out its

responsibilities. See id. (rejecting mandamus relief where the agency had prescribed certain

overdue fuel economy standards and had “made some progress” on another); TRAC, 750 F.2d at 72

(declining to grant mandamus relief “because the agency has assured us that it is now moving

expeditiously”); cf. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 193 (D.C. Cir. 2016) (observing

that, on remand, the district court might conclude that a writ of mandamus is “premature” if

“Congress and the Secretary are making significant progress toward a solution”). Here, Treasury

has said that it “is poised to finalize its new methodology by April 30 (at the latest), and will

promptly make payments thereafter.” Opp’n to Pls.’ Second Mot. for Prelim. Inj., ECF No. 71,

at 17; Hr’g Tr. at 3–4. Because Treasury has committed to making payment in the coming weeks,

it makes little sense for the court to exercise its equitable authority and instruct the agency to make

payment by a date certain.

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 As this court admonished in Agua Caliente I, however, the court’s hesitancy to interfere

with the agency’s progress at this time does not mean Treasury “enjoys an indefinite period to

carry out Congress’s command.” 2020 WL 2331774, at *8. Plaintiffs may renew their motion

should Treasury fail to make good on its promise to distribute the Title V funds soon after

finalizing the revised methodology.

III.
The court will grant the limited injunctions sought by the Miccosukee Tribe and the Prairie

Band Potawatomi Nation, as injunctive relief is needed to maintain the status quo. In Shawnee

Tribe, the D.C. Circuit made clear that the Miccosukee Tribe—also assessed by Treasury as having

zero population—is similarly situated to the Shawnee Tribe. See 984 F.3d at 102. The Miccosukee

Tribe is therefore entitled to the same injunction as the Shawnee Tribe. And because Prairie Band

Potawatomi Nation claims that Treasury’s original methodology vastly undercounted its

population, see Prairie Band Potawatomi Nation’s First Am. Compl., ECF No. 67, ¶ 12, its legal

claim is substantially similar, and thus warrants the same injunctive relief.

IV.
For the foregoing reasons, the court denies, without prejudice, Plaintiffs’ Joint Motion for

Preliminary Injunction Directing Immediate Interim Distribution of CARES Act Funds,

ECF No. 65.

The court grants the Miccosukee Tribe’s and Prairie Band Potawatomi Nation’s motions

for injunctive relief. The court hereby preliminarily enjoins Defendant Janet L. Yellen, in her

official capacity as Secretary of the Treasury, from distributing an additional $9,647,063 of the

remaining funds available under Title V of the CARES Act for “Tribal governments,” 42 U.S.C.

§ 801, except to the Miccosukee Tribe and Prairie Band Potawatomi Nation themselves, until a

final judgment is entered in this matter, or upon an earlier order entered by the court.

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 Treasury shall file a Status Report on or before May 3, 2021, notifying the court of its

revised methodology for distributing remaining Title V funds and its timeline for distributing funds

to Plaintiffs under the revised methodology.

Dated: April 26, 2021 Amit P. Mehta
United States District Court Judge

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