United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 2022 Decided March 24, 2023
No. 22-5089
PRAIRIE BAND POTAWATOMI NATION AND MICCOSUKEE TRIBE
OF INDIANS OF FLORIDA,
APPELLANTS
SHAWNEE TRIBE,
APPELLEE
v.
JANET L. YELLEN, IN HER OFFICIAL CAPACITY AS SECRETARY
OF THE UNITED STATES DEPARTMENT OF THE TREASURY, ET
AL.,
APPELLEES
Consolidated with 22-5090
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cv-01999)
(No. 1:20-cv-02792)
(No. 1:21-cv-00012)
2
James P. Blenk and George B. Abney argued the causes for
appellants. With them on the briefs were Daniel G. Jarcho,
Jean E. Richmann, Carol E. Heckman, and Michael G.
Rossetti.
Adam C. Jed, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Daniel Tenny, Attorney.
Before: CHILDS, Circuit Judge, and ROGERS, Senior
Circuit Judge. *
Opinion for the Court by Senior Circuit Judge Rogers.
ROGERS, Senior Circuit Judge: Two American Indian
tribes – Miccosukee Tribe of Indians of Florida and Prairie
Band Potawatomi Nation – challenged as arbitrary and
capricious the Secretary of the Treasury’s 2020 and 2021
Distributions of appropriations for relief from the COVID-19
pandemic. The district court granted summary judgment to the
Secretary. The Tribes appeal only the 2021 Distribution.
I.
The Coronavirus Aid, Relief, and Economic Security Act
(“the Act”), effective March 27, 2020, directed the Secretary of
the Treasury to allocate COVID-19 relief funds to tribal
governments “based on increased expenditures.” 42 U.S.C. §
801(c)(7). The Secretary was to make payments within 30 days
of enactment, id. § 801(b)(1), and therefore needed to devise a
*
Senior Circuit Judge Silberman was a member of the panel before
his death on October 2, 2022. Judges Rogers and Childs have acted
as a quorum in this opinion. See 28 U.S.C. § 46(d).
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method that would approximate future expenditures, id. §§
801(b)(1), 801(c)(7). Where Congress directs an agency to act
“based on” an identified factor, that factor must be a “starting
point” and “primary basis” but it need not be the “sole basis”
for action. United Mine Workers v. Mine Safety & Health
Admin., 626 F.3d 84, 92 (D.C. Cir. 2010).
In May 2020, the Secretary announced that sixty percent
of the funds would be distributed according to tribal
population, using HUD data. U.S. Dep’t of Treasury,
Coronavirus Relief Fund Allocations to Tribal Governments 2
(May 5, 2020) (“2020 Announcement”). Although various
Tribes challenged the distribution unsuccessfully, on appeal
this court determined that the Secretary’s discretion is “limited
to ‘determin[ing]’ a method for allocating funds that is ‘based
on increased expenditures’ and that is ‘appropriate to ensure
that all amounts available . . . are distributed.’” Shawnee Tribe
v. Mnuchin, 984 F.3d 94, 100 (D.C. Cir. 2021) (“Shawnee I”)
(alteration in original) (quoting 42 U.S.C. § 801 (c)(7)).
Concluding that the Shawnee Tribe was likely to succeed on its
challenge to the HUD data as arbitrary and capricious, the court
remanded to the district court. That court thereafter issued a
preliminary injunction barring the Secretary from distributing
$12 million of the remaining COVID-19 funds appropriated to
tribal governments. Order (Jan. 14, 2021).
The Secretary proposed an additional allocation in 2021
from approximately $530 million designated for Alaska Native
Corporations (“ANCs”) that had not been distributed pending
litigation regarding the ANCs’ eligibility. U.S. Dep’t of
Treasury, Coronavirus Relief Fund Allocations to Tribal
Governments 2 (Apr. 30, 2021) (“2021 Announcement”).
Only those Tribes most undercounted in the 2020 Distribution
would receive additional funds. Id. The Secretary ranked each
Tribe by the percentage the HUD data underestimated its
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enrolled population, not by the number of uncounted enrolled
members. Id. at 3. The Secretary used enrollment data
collected by the Bureau of Indian Affairs and otherwise
solicited enrollment data and, in the absence of either source,
the Secretary used enrollment data based on the HUD data. Id.
Allocations of the remaining undistributed funds were to be
limited to the fifteen percent of Tribes with the greatest
percentage of uncounted enrolled population. Id. The amount
those Tribes received was determined by a “Phaseout”: the
greater the percentage undercounted, the greater percentage
awarded of their “shortfall,” i.e., the difference between the
amount a Tribe would have received had enrollment data been
used and the amount a Tribe received in the 2020 Distribution.
Id.
Miccosukee and Prairie Band filed amended complaints
challenging the 2020 and 2021 Distributions, while Shawnee
abandoned its legal challenges. Shawnee Tribe v. Yellen, 583
F. Supp. 3d 36, 40-41 (D.D.C. 2022). The district court granted
summary judgment to the Secretary. Id. at 41. Miccosukee
and Prairie Band now challenge only the Secretary’s “decision
to implement the Phaseout” instead of awarding each Tribe
receiving a 2021 Distribution the entirety of its shortfall.
II.
Miccosukee and Prairie Band contend that the 2021
Distribution was arbitrary and capricious because it was
unsupported by the administrative record, inconsistent with the
Act and with the Secretary’s earlier approach, and treated
similarly situated parties dissimilarly. As explained in Part A,
Miccosukee’s claim is moot. As explained in Part B, Prairie
Band’s claim must be remanded to the Secretary for further
explanation before the court could conclude the choice was a
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reasonable exercise of broad discretionary authority supported
by the record.
A.
The doctrine of mootness “addresses whether ‘an
intervening circumstance [has] deprive[d] the plaintiff of a
personal stake in the outcome of the lawsuit.’” West Virginia
v. EPA, 142 S. Ct. 2587, 2607 (2022) (alteration in original)
(quoting Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66,
72 (2013)). That “occurs when . . . the court can provide no
effective remedy because a party has already ‘obtained all the
relief that [it] sought.’” Conservation Force, Inc. v. Jewell, 733
F.3d 1200, 1204 (D.C. Cir. 2013) (alteration in original)
(quoting Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir.
1984)).
In 2022, the Secretary offered additional funding to Tribes
affected by the error in the 2021 Distribution. Miccosukee was
affected by that error while Prairie Band was not. Appellee’s
Suppl. Br. 3 n* (Sept. 12, 2022). Some Tribes assigned HUD
populations of zero received the entirety of their shortfall in the
2021 Distribution while others did not. The 2022 Distribution
corrected that error. See id. The Secretary explained that
Miccosukee “has been offered and has accepted an additional
payment such that Miccosukee has been given funds as if the
methodology had used enrollment as the sole measure of
population for all federally recognized tribes.” Id. at 3.
Miccosukee does not contest this representation. Its
counsel acknowledged that Miccosukee had received the 2022
Distribution. Oral Arg. Rec. 31:15-23. Instead Miccosukee
maintains its claim is not moot because it still seeks to be
treated on par with Tribes that received approximately $3,000
per member in the 2020 Distribution (as reflected in the amount
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of the Shawnee I injunction). Id. 31:01-33:46. But Miccosukee
stated that “[t]he instant appeal solely addresses Treasury’s
decision to implement the Phaseout.” Appellants’ Br. 15. In
that regard it sought the difference between what it received
and what it would have received had tribal enrollment been
used as the measure of population. Id. at 32. That amount it
has now received. Miccosukee still maintains that its claim is
not moot because it has been unable to verify that it has been
treated on par with other Tribes assigned HUD populations of
zero. Appellants’ Reply Br. 4-5. These representations are
inconsistent with its position that the court can direct an award
of the entirety of each Tribe’s shortfall because the Secretary
has all of the relevant data to do so. Appellants’ Br. 32.
Although Miccosukee notes the 2022 Distribution is absent
from the administrative record, Appellants’ Reply Br. 7-8 n.5,
“evidence demonstrating mootness will almost necessarily
post-date the administrative record in any given case,” Pub.
Emps. for Env’t Resp. v. Nat’l Park Serv., 2022 WL 1657013
at *4 (D.D.C. May 24, 2022). Miccosukee, in seeking more
than it re quested to be made whole as a result of undercounting
by HUD data, fails to show factual error therein.
B.
A reviewing court is “to assess only whether the
[challenged agency] decision was ‘based on a consideration of
the relevant factors and whether there has been a clear error of
judgment.’” Dep’t of Homeland Sec. v. Regents of the Univ. of
Cal., 140 S. Ct. 1891, 1905 (2020) (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971)). Because agencies generally have “wide discretion to
determine where to draw administrative lines,” ExxonMobil
Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1085 (D.C. Cir. 2002)
(internal quotation marks and citation omitted), courts are
especially deferential where agencies must make predictive
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judgments with limited information, FCC v. Prometheus Radio
Project, 141 S. Ct. 1150, 1160 (2021). Still, the Secretary
“must cogently explain why . . . discretion [was exercised] in a
given manner,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983), such
that the chosen “path may reasonably be discerned,” Alaska
Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)
(quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974)). As a general matter the
explanation must be based on the administrative record and not
provided as a post-hoc rationalization. See Overton Park, 401
U.S. at 419.
The requirement that the Secretary allocate funds “based
on increased expenditures,” 42 U.S.C. § 801(c)(7), does not
require a population-based allocation or a per capita rate, as
Prairie Band maintains, Appellants’ Br. 24. Indeed, Prairie
Band acknowledges that the Secretary acted within the broad
discretion delegated by Congress in allocating additional
COVID-19 funds only to the fifteen percent of Tribes with the
greatest share of enrolled population undercounted by HUD’s
data. See id.
The Secretary used HUD population data as one way to
approximate increased expenditures. Shawnee I, 984 F.3d at
97. It is uncontested that some stand-in for increased
expenditures was necessary as the Secretary explained in the
2020 Announcement. It is also uncontested that population is
a reasonable stand-in for increased expenditures. Failures of
the stand-in due to undercounting population are failures to
allocate based on increased expenditures and redressing those
failures is to allocate based on increased expenditures. HUD
data significantly undercounted some Tribes. Shawnee I, 984
F.3d at 97. The 2021 Distribution was designed to compensate
Tribes based how much their members had been undercounted
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so that the Secretary’s total allocations would more closely
approximate increased expenditures. 2021 Announcement 2.
The Secretary acknowledged two limitations on designing
the methodology: (1) The tight statutory time limit, 42 U.S.C.
§ 801(b)(1), meant the methodology could at best only estimate
Tribes’ funding needs because the “funding needs of Tribes
cannot be determined with precision” when making a
prediction about future expenditures, 2021 Announcement 3,
and (2) Only limited COVID-19 funds remained undistributed.
The undistributed funds had been allocated to ANCs in view of
the great need identified during agency consultations, see id.
The Secretary explained why limited funds required
prioritization of “additional payments when there is a
substantial disparity between the Tribe’s [HUD] count and its
tribal enrollment.” Id. at 2.
Even so, the Secretary has not explained why “substantial
disparity” was measured by the degree the HUD data
underestimated enrollment rather than number of uncounted
enrolled members, nor the Distribution methodology in
relation to the statutory mandate to allocate funds “based on
increased expenditures,” 42 U.S.C. § 801(c)(7). Across the
2020 and 2021 Distributions, a total of $5.3 million was
allocated to Shawnee for its 3,021 enrolled members. Shawnee
Tribe, 583 F. Supp. 3d at 53. Prairie Band, by contrast, was
allocated approximately $3.3 million across the 2020 and 2021
Distributions for its 4,561 enrolled members. Id. The district
court observed: “Shawnee received around $2 million more
with around 1,500 fewer enrolled members: ‘40% more funds
to Shawnee [than Prairie Band] for an enrolled population that
is 33% lower.’” Id. (quoting Pls.’ Second Mot. Summ. J. at 15)
(alteration in original). This resulted in a per enrolled member
distribution of approximately $1,754 for Shawnee and
approximately $724 for Prairie Band. See id. Absent further
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explanation, this “treat[s] similar situations in dissimilar ways”
contrary to the principles of reasoned decisionmaking. Garrett
v. FCC, 513 F.2d 1056, 1060 (D.C. Cir. 1975) (internal
citations omitted). An “agency must treat similar cases in a
similar manner unless it can provide a legitimate reason for
failing to do so.” Kreis v. Sec’y of the Air Force, 406 F.3d 684,
687 (D.C. Cir. 2005). “It is clear . . . not only that more than
enumeration of factual differences between cases is required,
but also that the [Secretary] must explain their relevance to the
purposes of the legislation it administers.” Garrett, 513 F.2d
at 1060 (alteration and internal citation omitted).
On remand, the Secretary must explain the decision
decided. To the extent the 2021 Distribution would treat some
Tribes assigned HUD populations of zero differently, the
Secretary corrected the error. Only Miccosukee had standing
to challenge the error and its claim is moot. To the extent
Prairie Band’s objection to the Secretary’s explanation is that
the administrative record would also support awarding Tribes
the entirety of the shortfall, the court has no occasion to
“substitute its judgment for that of the [Secretary],” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting
State Farm, 463 U.S. at 43). Congress assigned “that difficult
decision” to the Secretary. Regents of the Univ. of Cal., 140 S.
Ct. at 1914. The Secretary must sufficiently explain the choice
made. Although the court does “not conclude that the agency
is incapable of adducing sufficient evidence reasonably to
support its decision,” the court “cannot, consistently with [its]
limited role in reviewing agency decisions . . . reach the
reasoned decision [itself]; that task remains to be done by the
agency.” Am. Min. Cong. v. EPA, 907 F.2d 1179, 1191 (D.C.
Cir. 1990).
Accordingly, the court dismisses Miccosukee’s challenge
as moot and reverses the district court’s grant of summary
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judgment to the Secretary with instructions to remand Prairie
Band’s challenge to the 2021 Distribution to the Secretary for
further explanation.