UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) AGUA CALIENTE BAND OF ) CAHUILLA INDIANS, et al., ) ) Plaintiffs, ) ) v. ) Case No. 20-cv-01136 (APM) ) STEVEN MNUCHIN, in his official capacity ) as Secretary of the Treasury, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION

I.

This matter is once again before the court on a motion for preliminary injunction. Plaintiffs

are Indian tribes that seek, for a second time, to compel Secretary of the Treasury Steven Mnuchin

to allocate undistributed funds appropriated by Congress under the Coronavirus Aid, Relief, and

Economic Security Act,

Stat 281 (2020) (“CARES Act”), to aid Tribal

governments in combating the devastating impacts of the COVID-19 pandemic. Under Title V of

the CARES Act, Congress set aside $8 billion for Tribal governments,

(a)(2), and

directed the Secretary to distribute such funds “not later than 30 days after March 27, 2020,” that

is, by April 26, 2020,

§ 801(b)(1). On May 11, 2020—16 days after the CARES Act’s statutory

deadline—the court denied Plaintiffs’ first request for injunctive relief. See Agua Caliente Band

of Cahuilla Indians v. Mnuchin, Case No. 20-cv-01136 (APM),

(D.D.C. May

11, 2020). The court found that “Plaintiffs . . . [had] not carried their burden to show that the

Secretary’s delay thus far is so egregious as to warrant mandamus relief today.”

. The

court so held, in part, because only six days earlier—May 5, 2020—the Secretary had begun to distribute 60% of the $8 billion and had announced steps to gather information and determine a

formula for distributing the remaining 40% of funds. See

at *2–3. The court warned, however,

that the denial of Plaintiffs’ motion “does not mean the Secretary enjoys an indefinite period to

carry out Congress’ command. . . . [S]hould the Secretary’s delay verge on doubling the time

Congress mandated to fully disburse Title V funds to Tribal governments, then the question of

egregiousness becomes a closer one than it is today.”

.

On June 5, 2020—39 days after the congressional deadline lapsed—Plaintiffs filed the

motion that is now before the court. See Pls.’ Renewed Mot. for Prelim. Inj., ECF No. 37. Seven

days later—on June 12, 2020—the Secretary began to distribute the remaining 40% of emergency

relief, but withheld $679 million, or roughly 8.5% of Title V funds, due to a recently filed litigation,

Prairie Band Potawatomi Nation v. Mnuchin, 20-cv-1491 (APM), which challenges the

methodology used by the Secretary to distribute the first tranche of Title V funds, see Def.’s

6/12/2020 Status Report, ECF No. 39. The Secretary withheld the $679 million “‘to resolve any

potentially adverse decision in litigation’ over Defendant’s methodology for calculating

disbursements from CARES Act appropriation for Tribal governments.”

. The Secretary

did so even though the court had ruled the prior day, June 11, 2020, that the Prairie Band Plaintiffs

were not entitled to enjoin the Secretary’s final emergency relief payments, because his first-

tranche allocation determination was a discretionary act that is not judicially reviewable under the

Administrative Procedure Act. See Mem. Op. and Order, Prairie Band Potawatomi Nation v.

Mnuchin, 20-cv-1491 (APM), ECF No. 22 [hereinafter Prairie Band Mem. Op.], at 2–3. Thus, at

present, there is no court order that prevents the Secretary from releasing the remaining $679

2 million in Title V funds to Tribal governments. 1 That amount is being withheld of the Secretary’s

own accord.

II.

In assessing Plaintiffs’ initial motion, the court considered the six-factor test for resolving

claims of unreasonable agency delay set forth in Telecommunications Research & Action Center

v. FCC (TRAC),

(D.C. Cir. 1984), and concluded that, despite missing the

congressionally imposed 30-day deadline, the Secretary’s delay in making Title V payments was

not egregious and therefore did not warrant court intervention, see Agua Caliente Band,

, at *5–8. Plaintiffs therefore had not demonstrated a likelihood of success on the merits.

See

Since that initial motion, three relevant facts have changed. First, more time has passed.

The Secretary has now taken more than twice as much time as Congress directed to distribute all

CARES Act funds. Congress instructed the Secretary to make payments within 30 days; as of

today, the Secretary is at 80 days and counting. Second, the Secretary has distributed most of the

emergency relief but not all of it. He continues to withhold $679 million “to resolve any potentially

adverse decision” in the Prairie Band matter. Def.’s 6/12/2020 Status Report at 1. And, third,

Plaintiffs in this case have received (or soon will receive) most of the money to which they are

entitled, but again not all, because of the Secretary’s withholding.

These new facts alter the court’s balancing of the TRAC factors. The passage of now

50 days beyond the congressional deadline—marking over twice as long as Congress intended for

distribution of all CARES Act funds—weighs in favor of finding unreasonable delay. As the court

previously observed, the length of the agency’s delay is the most important of the TRAC factors,

1 The Secretary has properly withheld payments designated for Alaska village and regional corporations consistent with the court’s preliminary injunction issued in Confederated Tribes of the Chehalis Reservation v. Mnuchin, Case No. 20-cv-1136 (APM),

(D.D.C. Cir. April 27, 2020).

3 see

, at *6, see also In re People’s Mojahedin Org. of Iran,

(D.C. Cir. 2012), and longer delays are less tolerable when public health considerations are at

stake, see

(citing Pub. Citizen Health Research Grp. v. Comm’r, FDA,

(D.C. Cir. 1984)). Here, public health considerations are at their zenith. As the

court previously observed, “the COVID-19 pandemic presents a national health emergency that is

without precedent in modern times.”

. Continued delay in the face of

an exceptional public health crisis is no longer acceptable.

The court acknowledges the Secretary’s efforts to date to distribute more than 90% of the

$8 billion appropriated by Congress, and to do so in a fair and equitable manner. But the

Secretary’s withholding of $679 million “to resolve any potentially adverse decision in litigation,”

Def.’s 6/12/2020 Status Report at 1, simply cannot be justified. For one, it is not clear what

authority under the CARES Act the Secretary possesses to make such a withholding. The CARES

Act directs the Secretary to determine amounts to be paid to Tribal governments “in such manner

as the Secretary determines appropriate to ensure that all amounts available under subsection

(a)(2)(B) for fiscal year 2020 are distributed to Tribal governments.”

(c)(7). The

Secretary already has “determined” the amounts that should be paid to each Tribal government.

See U.S. DEP’T OF TREASURY, Coronavirus Relief Fund Allocations to Tribal Governments (June

12, 2020). 2 His obligation now is to distribute those funds. See

(b)(1) (“[N]ot

later than 30 days after March 27, 2020, the Secretary shall pay each . . . Tribal government . . .

the amount determined . . . .”). The CARES Act does not grant him the discretion to do otherwise.

Nor is the Secretary’s initial allocation at genuine risk of being overturned or modified

through litigation. The court already has held that the Supreme Court and Circuit precedent

2 Available at https://home.treasury.gov/system/files/136/Tribal-Allocation-Methodology-for-Second- Distribution.pdf.

4 squarely foreclose judicial review of the Prairie Band Potawatomi Nation’s challenge to the

Secretary’s discretionary choice of the population data he used to allocate the first tranche of

CARES Act funds. See Prairie Band Mem. Op. at 2–3 (citing Lincoln v. Vigil,

(1993), Milk Train, Inc. v. Veneman,

(2002), and Physicians for Social Responsibility

v. Wheeler,

(D.C. Cir. 2020)). Further litigation in that matter is highly unlikely

to cause the Secretary to revisit his first-tranche allocation methodology. Moreover, the amount

withheld by the Secretary far exceeds the amount at stake in the Prairie Band matter. The plaintiff

in that case claims underpayment of $7.65 million, see Prairie Band Mem. Op. at 1–2, and has not

moved for class certification, yet the Secretary has held in reserve nearly 90 times the amount in

dispute. The Secretary’s injection of further delay into processing the remaining Title V payments

is grossly disproportionate to the litigation exposure he fears.

Finally, the Secretary’s unilateral withholding will result in even more delay, and for an

unknown period of time. The Secretary intends to withhold funds until final resolution of the

Prairie Band matter, including on appellate review. See Draft 6/15/2020 Status Conf. Tr. at 10.3

Such resolution easily could add months to the timetable for a final distribution. Additionally, the

Secretary’s withholding only invites other dissatisfied Indian tribes to bring their own challenges

to the Secretary’s allocation decisions. More litigation will only lead to more delay—a result that

the court cannot countenance in the face of a pandemic.

Accordingly, the court now finds that Plaintiffs have demonstrated a likelihood of success

on the merits of their Administrative Procedure Act unreasonable-delay claim.

3 The Prairie Band Potawatomi Nation appealed the court’s denial of its motion for preliminary relief in the afternoon of June 15, 2020, after the hearing held on Plaintiffs’ motion in this case. See Notice of Appeal, Prairie Band Potawatomi Nation v. Mnuchin, 20-cv-1491 (APM), ECF No. 26. As the Order accompanying this Memorandum Opinion reflects, the Secretary in his discretion may withhold $7.65 million, if the Prairie Band Potawatomi Nation seek expedited review before the D.C. Circuit.

5 III.

The remaining equitable relief factors favor an order compelling the Secretary to distribute

the remaining Title V funds. Plaintiffs will suffer irreparable harm in the absence of an injunction.

As noted, the Secretary’s present intention is to withhold $679 million in Title V funds until the

Prairie Band matter is finally resolved. Def.’s 6/12/2020 Status Report at 1. Such an indefinite

wait will result in irreparable harm. Congress plainly recognized the immediate need for

emergency funds to assist Tribal governments in addressing the COVID-19 pandemic, as

evidenced by the remarkably short 30-day deadline to distribute the aid. See

(b)(1).

Each day that passes in which Plaintiffs have not received their full allotment of funds impairs

their capacity to respond to the crisis. See Agua Caliente Band,

, at *7 (citing

Plaintiffs’ affidavits).

The Secretary faults Plaintiffs for not providing current information about how their

portion of the withheld monies will adversely impact them, but that criticism is misplaced in two

respects. First, the Secretary announced that he would be withholding the $679 million after

Plaintiffs filed the present motion, so Plaintiffs have not had a genuine opportunity to respond to

this new information. See Def.’s 6/12/2020 Status Report. And, second, the Secretary demands

too much in the present health crisis. Congress made a policy judgment that Tribal governments

are in dire need of emergency relief to aid in their public health efforts and imposed an incredibly

short time limit to distribute those dollars. Tribal governments therefore are presumed already to

be suffering great harm, as confirmed by Plaintiffs’ affiants, who have explained that they have

been forced to shut down revenue-producing operations while also incurring new costs to respond

to the pandemic, with the resulting reduction of “government services putting the health and safety

of tribal members at substantial risk.” Affidavit of Ryan Ortiz, ECF No. 20, ¶ 11. Considering

6 the public health challenges presented by the COVID-19 pandemic, the damage done by further

delay cannot be fully cured by later remedial action, rendering Plaintiffs’ harm irreparable. Cf.

Harris v. Bd. of Supervisors, Los Angeles Cty.,

(9th Cir. 2004) (finding

irreparable harm from risk of infection and possible death due to delayed treatment from the

reduction of hospital beds); Kildare v. Saenz,

(9th Cir. 2003) (explaining that

“back payments cannot erase either the experience or the entire effect of several months” of

deprivation of necessary resources (internal quotations marks and citation omitted)). “The risk to

human life need not be a certainty to justify expedition,” particularly where the “very purpose of

the governing Act is to protect those lives.” Public Health Citizen Research Group v. Auchter,

702 F.2d at 1160, 1157–58 & n.26 (D.C. Cir. 1983).

Finally, the balance of equities and the public interest favor injunctive relief. The court

reiterates what it said in denying the Prairie Band Plaintiff’s motion for injunctive relief:

“[I]t would be patently unfair to make Tribal governments wait any longer to receive the remaining

CARES Act funds.” Prairie Band Mem. Op. at 4. The 80 days they have waited, when Congress

intended receipt of emergency funds in less than half that time, is long enough. The equities and

the public interest favor immediate disbursement of the remaining Title V funds.

IV.

For the foregoing reasons, Plaintiffs’ Renewed Motion for Preliminary Injunction,

ECF No. 37, is granted. A separate Order accompanies this Memorandum Opinion.

Dated: June 15, 2020 Amit P. Mehta United States District Court Judge

7