UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) CONFEDERATED TRIBES OF THE ) CHEHALIS RESERVATION, et al., ) ) Plaintiffs, ) ) v. ) Case No. 20-cv-01002 (APM) ) STEVEN MNUCHIN, in his official capacity ) as Secretary of the Treasury, ) ) Defendant. ) _________________________________________ ) CHEYENNE RIVER SIOUX TRIBE, et al. ) ) Plaintiffs, ) ) v. ) Case No. 20-cv-01059 (APM) ) STEVEN MNUCHIN, in his official capacity ) as Secretary of the Treasury, ) ) Defendant. ) _________________________________________ ) UTE TRIBE OF THE UINTAH AND ) OURAY RESERVATION, ) ) Plaintiff, ) ) v. ) Case No. 20-cv-01070 (APM) ) STEVEN MNUCHIN, in his official capacity ) as Secretary of the Treasury, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER I.

On June 26, 2020, the court ruled that Alaska Native regional and village corporations

(“ANCs”) are eligible to receive emergency relief funds appropriated by Congress under Title V

of the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act. See Confederated

Tribes of Chehalis Reservation v. Mnuchin, No. 20-cv-01002 (APM),

(D.D.C.

June 26, 2020). The court accordingly entered judgment in favor of Defendant Secretary of the

U.S. Department of the Treasury and the ANC Defendant-Intervenors, and dissolved the

preliminary injunction that, until then, had prevented the Secretary from disbursing Title V funds

to ANCs. See Order, ECF No. 98. The Confederated Tribes of the Chehalis Reservation Plaintiffs

now ask the court to stay its judgment pending appeal. Pls.’ Mot. for Injunction Pending Appeal

and Mem. of P. & A., ECF No. 99 [hereinafter Pls.’ Mot.].1 Specifically, they seek an injunction

that prohibits the Secretary from “disbursing or otherwise paying Title V funds to any [ANC], until

further order of this Court or by order of the Court of Appeals for the District of Columbia Circuit.”

Proposed Order, ECF No. 99-1, at 2. For the reasons that follow, the requested injunctive relief is

granted, subject to the condition that Plaintiffs file a notice of appeal and a motion for expedited

review by July 14, 2020.

II.

This court set forth the standard governing a motion for injunction pending appeal in

Cigar Association of America v. FDA,

, 560–61 (D.D.C. 2018). The court

need not repeat that discussion here but incorporates it by reference, and proceeds directly to the

four injunction factors it must consider on a sliding scale.

1 Plaintiff Ute Indian Tribe of the Uintah and Ouray Reservation join in the Confederated Tribes Plaintiffs’ motion. See Ute Indian Tribe’s Joinder in “Mot. for Leave to File Injunction Pending Appeal,” ECF No. 100.

2 First, Plaintiffs have presented “serious legal questions going to the merits, so serious,

substantial, difficult as to make them a fair ground of litigation and thus for more deliberative

investigation.” Population Inst. v. McPherson,

, 1078 (D.C. Cir. 1986) (quoting

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,

(D.C. Cir. 1977)).

Although the court ultimately ruled in Defendants’ favor, it observed that “this case does not

present easy, straightforward questions of statutory interpretation,” and it “wrestled” with the

decision it made. Confederated Tribes,

, at *6. The proper application of the

competing canons of interpretation to Title V’s relevant statutory terms alone warrants additional

scrutiny, and the “impressive array of textual, historical, and practical evidence” amassed by the

parties, “all of which must be viewed against the unique treatment of Native Alaskans by Congress

and Executive Branch agencies,” only counsels in favor of further review.

Because the

question of statutory interpretation presented in this case is as complicated as it is consequential,

it deserves an audience before a higher court while maintaining the status quo. 2

Second, Plaintiffs would suffer irreparable harm if the court denied injunctive relief and

the Secretary then distributed the withheld Title V funds to ANCs. Such payments could result in

this case becoming moot before receiving a full hearing before the D.C. Circuit. See City of

Houston. v. Dep’t of Hous. & Urban Dev.,

(D.C. Cir. 1994) (“It is a well-

settled matter of constitutional law that when an appropriation has lapsed or has been fully

obligated, federal courts cannot order the expenditure of funds that were covered by that

appropriation.”); Ambach v. Bell,

(D.C. Cir. 1982) (holding that “interim relief”

was proper where plaintiff States challenged the agency’s formula for distributing education

2 To varying degrees, the parties have sought to revisit the merits of the court’s decision. See, e.g., Pls.’ Mot. at 6–12; Def,’s Opp’n to Pls.’ Mot. for Inj. Pending Appeal, ECF No. 103, at 5–13. Wading into those thorny issues once more is neither desirable nor necessary. It suffices to say that the questions Plaintiffs have raised are sufficiently “substantial” to warrant an injunction pending appeal.

3 funding, because, “[o]nce the . . . funds are distributed to the States and obligated, they cannot be

recouped”). Given the complexity and significance of the questions presented, this court should

not have the last say on this matter. Defendants respond that the harm Plaintiffs faced at the

preliminary injunction stage is now greatly diminished because they have received approximately

90% of the CARES Act funding to which they are entitled. Opp’n to Pls.’ Mot. for Inj. Pending

Appeal of Intervenor-Defendants Alaska Native Village Corp. Assoc., Inc., and Assoc. of ANCSA

Regional Corp. Presidents/CEO’s, Inc., ECF No. 104, at 8. Yet, there remains hundreds of millions

of dollars in dispute. And, although not all of those funds would go to these Plaintiffs if they were

to prevail, the lesser amount at stake would not make the lost chance at appellate review sting any

less.

Third, the final two factors taken together—the balance of equities and the public interest—

cannot overcome the reasons favoring injunctive relief. See Nken v. Holder,

(2009) (“The first two factors of the traditional standard are the most critical.”);

(observing that the third and fourth factors “merge” when the government is the opposing party).

To be sure, the ANCs and, more importantly, the constituencies they serve will suffer some injury

from additional delay in receiving Title V funds. However, the public interest also rests in carrying

out Congress’s will, and that interest is not served if ANCs receive and spend tens of millions of

dollars of emergency relief to which they are not entitled. See League of Women Voters of United

States v. Newby,

(D.C. Cir. 2016) (stating that “there is a substantial public interest

in having governmental agencies abide by the federal laws that govern their existence and

operations” (internal quotation marks and citation omitted)). Although this court has concluded

that ANCs are eligible for those funds, the public interest rests with the D.C. Circuit deciding

whether this court got it right.

4 In summary, the injunction factors, applied on a sliding scale, favor granting Plaintiffs’

request for an injunction pending appeal.

III.

The Calista ANC-Intervenor Defendants urge the court, in effect, to punt Plaintiffs’ request

for injunctive relief to the D.C. Circuit. See Opp’n to Pls.’ Mot. to Stay Judgment Pending Appeal,

ECF No. 102 [hereinafter Calista Mot.] at 2 (“In all events, this Court is the wrong court to grant

the relief that plaintiffs seek.”). The court declines to do so. This court has an independent

obligation to consider Plaintiffs’ motion, see Fed. R. Civ. P. 62(d); Fed. R. App. P. 8(a)(1), and it

must discharge that responsibility. That said, the Calista ANC-Intervenor Defendants are right to

be concerned that a delayed appeal would defeat the very purposes for which Congress

appropriated CARES Act funds on an emergency basis. See Calista Mot. at 2–3. The

Confederated Tribes Plaintiffs have not suggested that they intend to delay prosecuting an appeal;

to the contrary, they have said they will pursue expedited review. See Pls.’ Mot. at 2 n.1.

Nevertheless, to ensure prompt appellate consideration, the court will condition the requested stay

on Plaintiffs’ filing both a notice of appeal and a motion for expedited review before the

D.C. Circuit by no later than July 14, 2020. See Ctr. for Int’l Envtl. Law v. Office of the U.S. Trade

Representative,

, 23 & n.1 (D.D.C. 2003) (granting injunction pending appeal

conditioned on seeking expedited review); accord Charles v. Office of the Armed Forces Medical

Examiner, Civil Action No. 1:09-cv-0199 (KBJ),

, at *2 (D.D.C. May 9, 2013).

If Plaintiffs fail to move on an expedited basis, the stay will expire.

5 IV.

For the foregoing reasons, the Confederated Tribes Plaintiffs’ Motion for Injunction

Pending Appeal, ECF No. 99, is hereby granted, subject to one condition.

The court’s Order of June 26, 2020, ECF No. 98, is hereby stayed until the earlier of

September 15, 2020, or resolution of this matter by a three-judge panel of the D.C. Circuit, so long

as Plaintiffs file a notice of appeal and seek expedited review by July 14, 2020. If Plaintiffs do not

timely satisfy this condition, the injunction pending appeal shall expire on July 15, 2020. If the

D.C. Circuit has not resolved this case by September 15, 2020, this order may be extended upon

motion by a party or by the D.C. Circuit. Any motion filed before this court shall address whether

Title V funds will expire if the D.C. Circuit does not issue a decision by September 30, 2020.

Dated: July 7, 2020 Amit P. Mehta United States District Court Judge

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