UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) THE SHAWNEE TRIBE, ) ) Plaintiff, ) ) v. ) Case No. 20-cv-1999 (APM) ) STEVEN T. MNUCHIN, in his official capacity ) as Secretary of Treasury, et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

Plaintiff Shawnee Tribe asks the court for an order preliminarily enjoining the Secretary of

the Department of Treasury (“Secretary”) from distributing not less than $12 million in funds

remaining of the $8 billion that Congress allocated under Title V of the Coronavirus Aid, Relief,

and Economic Security Act (“CARES Act”) to assist Tribal governments with expenditures

incurred due to the COVID-19 pandemic. See Pl.’s Ex Parte Mot. for TRO, ECF No. 3 [hereinafter

Pl.’s Mot.].1 Plaintiff challenges the manner in which the Secretary allocated a portion of the

$8 billion. Specifically, on May 5, 2020, the Department of Treasury announced that the first

tranche of CARES Act funds disbursement would rely on “Tribal population data used by the

Department of Housing and Urban Development (HUD) in connection with the Indian Housing

Block Grant (IHBG) Program.” See U.S. DEP’T OF TREASURY, Coronavirus Relief Fund

1 Plaintiff originally brought this action in the Northern District of Oklahoma, where this motion was styled as an “Ex Parte Motion for Temporary Restraining Order” (“TRO”), despite also seeking a preliminary injunction. Shawnee Tribe v. Mnuchin, et al., No. 20-cv-1491, ECF No. 3. On July 28, 2020, the Northern District of Oklahoma denied Plaintiff’s request for a TRO and ordered the case transferred to this court under the first-to-file rule. See Opinion and Order, Shawnee Tribe v. Mnuchin, et al., No. 20-cv-1491 (N.D. Okl. July 28, 2020), ECF No. 27. Thus, the only issue remaining for this court’s consideration is Plaintiff’s request for a preliminary injunction. Allocations to Tribal Governments (May 5, 2020) [hereinafter Allocation Mem.], at 2, available

at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-

Methodology.pdf (last accessed on August 18, 2020). Plaintiff contests the Secretary’s selection

of the HUD tribal population data as arbitrary and capricious in violation of the Administrative

Procedure Act (“APA”).

This is the second case to come before this court challenging the Secretary’s use of the

HUD tribal population data. In the first case, the Prairie Band Potawatomi Nation argued that the

Secretary’s decision to rely on the HUD tribal population data was arbitrary and capricious because

it undercounted the tribe’s actual population. See Prairie Band Potawatomi Nation v. Mnuchin,

No. 20-cv-1491 (APM),

(D.D.C. June 11, 2020). The court denied the Prairie

Band plaintiff’s motion, in part, on the ground that the manner in which the Secretary allocated

the lump-sum CARES Act appropriation was not a reviewable agency action under the APA. Id.

at *1. Plaintiff Shawnee Tribe now attempts to avoid that conclusion, arguing not just that the

HUD tribal population data was flawed, but that it was “objectively false” because it counts the

Shawnee Tribe as having zero enrolled members when, in fact, the Tribe has more than 2,113 tribal

citizens. See Pl.’s Mot. at 1–2.

The Shawnee Tribe’s argument fares no better than the one asserted in Prairie Band. The

Secretary’s selection of the HUD tribal population data set, however imperfect it may be, is a

discretionary agency action that is not subject to judicial review. For the reasons stated below,

Plaintiff’s motion for injunctive relief is denied. 2

2 As in Prairie Band, the court incorporates by reference the factual background and the injunction standard set forth in Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-cv-01136 (APM),

(D.D.C. May 11, 2020), and Confederated Tribes of Chehalis Reservation v. Mnuchin, No. 20-cv-01002 (APM),

(D.D.C. Apr. 27, 2020).

2 I.

In Prairie Band, this court held that the plaintiff had failed to demonstrate a likelihood of

success on the merits because, under the Supreme Court’s decision in Lincoln v. Vigil, “as long as

an agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives,

§ 701(a)(2) of the APA gives the courts no leave to intrude. To that extent, the decision to allocate

funds is committed to agency discretion by law.” Prairie Band,

, at *1 (cleaned

up) (quoting Lincoln v. Vigil,

(1993)). Because the plaintiff in Prairie Band

had made no allegation that “the Secretary [had] allocated CARES Act funds for anything other

than their stated statutory purpose,” the court found that the population-based allocation was not

subject to judicial review. Id. at *2.

Notwithstanding Prairie Band, Plaintiff Shawnee Tribe insists that the Secretary’s

selection of the HUD tribal population data is reviewable. It so argues for multiple reasons. First,

it contends that this court in Prairie Band made a threshold error because it “failed to consider that

the APA presumes review, even where lump sum appropriations are at issue.” Pl.’s Reply in Supp.

of Pl.’s Mot., ECF No. 23 [hereinafter Pl.’s Reply], at 5. That argument misstates the law. In this

Circuit, a “presumption of non-reviewability” attaches to an agency’s “allocation of funds from a

lump-sum appropriation.” See Physicians for Soc. Resp. v. Wheeler,

(D.C. Cir.

2020) (internal quotation marks omitted) (emphasis added). The court applies this presumption of

non-reviewability here, just as it did in Prairie Band.

Next, Plaintiff maintains that this court’s reliance on Vigil was misplaced. See Pl.’s Reply

at 4. Plaintiff argues that, “[u]nlike in Vigil where there was no statutory language on the proper

use or administration of the appropriated funds, Title V’s statutory scheme does contain limitations

on the allocation and use of funds, such that a reviewing court can discern the intent of Congress.”

3

(citation omitted). But the CARES Act evinces no greater congressional intent to constrain

agency action than the statutes at issue in Vigil. See Policy & Research, LLC v. Dep’t of Health

& Human Servs.,

(D.D.C. 2018) (stating that where “an agency’s action is

presumptively unreviewable, [ ] the [c]ourt can only review the agency’s decision if the ‘operative’

statute or regulations provide ‘clear guidelines by which to do so, or otherwise evince[s] an intent

to constrain the [agency’s] discretion.’” (third and fourth alterations in original) (quoting Drake v.

FAA,

(D.C. Cir. 2002))). In Vigil, the statutes at issue concerned the delivery of

health services to Indian tribes. One statute, the Snyder Act, authorized the Indian Health Service

to “‘expend such moneys as Congress from time to time [finds] appropriate, for the benefit, care,

and assistances of the Indians,’ for the ‘relief of distress and conservation of health.’”

(quoting

). The other statute, the Improvement Act, authorized expenditures

for, among other things, Indian mental-health care and, specifically, for “therapeutic and

residential treatment centers.”

(quoting

(a)(4)(D)). The CARES Act’s broad

purpose is comparable to the breadth of the statues in Vigil, and its text is no more limiting.

Congress appropriated a lump sum of $8 billion to assist Indian tribes with “necessary

expenditures” associated with the coronavirus pandemic,

(d)(1), and directed that

“the Secretary shall determine, in consultation with the Secretary of the Interior and Indian Tribes,”

the amounts to be paid to Tribal governments “based on increased expenditures of each such Tribal

government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government . .

. and determined in such manner as the Secretary determines appropriate” as to ensure full

distribution of the appropriated sum,

§ 801(c)(7) (emphasis added). Congress’s general

instruction to allocate funds based on “increased expenditures” “in such manner as the Secretary

determines appropriate” is no more restrictive than the statutory directives at issue in Vigil. As this

4 court stated in Prairie Band, “Congress gave the Secretary no further guidance on how to allocate

the emergency relief funds”; thus, the CARES Act “contains no ‘statutory reference point’ by

which to judge the Secretary’s decision to use HUD’s population data set, as opposed to some

other.”

, at *1 (quoting Drake,

). That conclusion applies equally

here.

At oral argument, Plaintiff for the first time urged the court to take a “bifurcated” review

of the Secretary’s allocation determination. See Hr’g Tr. (draft), Aug. 12, 2020, at 37–38. Plaintiff

asserted that, even if the Secretary’s top-level decision to use population data as a proxy for

increased expenditures is not reviewable, then its secondary decision to select the HUD tribal

population set is reviewable. Id.; see also Pl.’s Suppl. Br. on Reviewability, ECF No. 40

[hereinafter Pl.’s Suppl. Br.], at 4. But that argument fails for at least two reasons.

First, it is not clear, as a factual matter, that the Secretary’s decision-making was

“bifurcated” in the way Plaintiff suggests. The Secretary, on May 5, 2020, announced both that

he had used tribal population as the metric by which to make the first-tranche allocation of Title

V funds and that he had relied on the HUD data set to supply the population figures. See Allocation

Mem. at 2 (“Treasury has determined to distribute 60 percent of the $8 billion reserved for Tribal

governments immediately based on population. . . . For purposes of the payments based on Tribal

population, Treasury will refer to the Tribal population data used by [HUD] in connection with the

[IHBG] program.”). Thus, Plaintiff’s proposition that the Secretary engaged in a divisible,

“bifurcated” decision-making process, the first half of which is reviewable and second half is not,

is not borne out by the record.

Second, even if the Secretary’s decision could be bifurcated in the manner Plaintiff

suggests, the selection of the HUD tribal population data set is no more reviewable than the initial

5 decision to use population as a proxy for increased expenditures. Congress provided that the

allocation of Title V funds to Tribal governments would be “determined in such manner as the

Secretary determines appropriate.”

(c)(7). Far from cabining the Secretary’s

discretion, Congress codified it. So, the Secretary’s choice of the HUD data over perhaps more

comprehensive, and even more accurate, tribal population statistics is not subject to judicial

review. Nor did the Secretary limit his own discretion by selecting population as a metric for

allocating Title V funds. The Secretary issued no regulations, policy statements, or guidance in

connection with that choice. See Physicians for Soc. Resp.,

(“[J]udicially

manageable standards may be found in formal and informal policy statements and regulations as

well as in statutes.” (internal quotation marks omitted) (quoting Steenholdt v. FAA,

(D.C. Cir. 2003))). Such action, if it had occurred, might have signaled an intent to cabin his

discretion. See, e.g.,

(holding that General Services Administration regulations implementing

the Federal Advisory Committee Act provided judicially manageable standards). But the mere

selection of population as a measure of how to allocate a lump-sum appropriation evinces no such

intent. The Secretary’s choice of a particular tribal population data set therefore is not judicially

reviewable.

The cases Plaintiff cites in support of its position are inapposite. Plaintiff cites Milk Train,

Inc. v. Veneman,

(D.C. Cir. 2002), for the proposition that the “unreviewability” of

one agency decision does not preclude the court from reviewing a separate but related decision,

Pl.’s Suppl. Br. at 4. But nothing in Milk Train changes the fact that the court needs a statutory or

regulatory reference point by which to judge each agency decision. Nor does Milk Train otherwise

weigh in Plaintiff’s favor. As the court explained in Prairie Band, the relevant portion of Milk

Train involved a dispute over whether the Secretary of Agriculture’s disbursement of funds

6 complied with its statutory purpose—to cover milk producers’ “economic losses incurred during

1999”—where the plaintiff claimed that the Secretary was using 1997 and 1998 data to calculate

1999 losses. See Prairie Band,

at *1 (quoting Milk Train, 310 F.3d at 752).

“Plaintiff makes no comparable allegation here,” where it “does not allege that the Secretary

allocated CARES Act funds for anything other than their stated statutory purpose—to assist Tribal

governments to combat the COVID-19 pandemic during the year in which those expenses

incurred.” Id. at 1–2.

Center for Biological Diversity v. Trump, Case No. 19-cv-00408 (TNM),

(D.D.C. Apr. 2, 2020), is likewise inapplicable. There, the court examined whether it

had authority to review the Secretary of Treasury’s expenditure of funds to pay for a border wall

between the United States and Mexico. Id. at *16. Because the relevant statute “allow[ed] the

Treasury Secretary to expend [the] funds [at issue] ‘in connection with the law enforcement

activities of any Federal Agency,’” id. (quoting

(g)(4)(B)), the court found that

the statute had cabined the Secretary’s discretion to use the funds “for any purpose he chooses,”

Specifically, the requirement that the funds had to be spent for “law enforcement activities,”

provided a “statutory reference point by which the court [was] able to review the Secretary’s

decision.”

(cleaned up). In this case, on the other hand, the only conceivable statutory reference

point is Title V’s requirement that the funds be used to cover “necessary expenditures incurred due

to the public health emergency with respect to the Coronavirus Disease 2019 (COVID-19),”

42 U.S.C. 801(d)(1), which, as discussed, neither provides “clear guidelines” by which to evaluate

the Secretary’s selection of the HUD tribal population data nor otherwise “evince[s] an intent to

constrain the agency’s discretion,” Drake,

. Finally, Plaintiff cites to Policy &

Research, LLC v. U.S. Department of Health and Human Services, see Pl.’s Suppl. Br. at 2, where

7 the court found that a decision by HHS to cut funding for various teen pregnancy prevention

programs was reviewable, 313 F. Supp. 3d at 76–78. But that case is distinguishable because HHS

was bound by regulations that “expressly” limited its discretion to “terminate” grant funding

without cause.

. As explained above, no similar agency regulation or policy limits the

Secretary’s discretion to allocate funds under Title V.

In sum, Plaintiff points to nothing in either the text of the CARES Act or any associated

agency action that overcomes the presumption of non-reviewability that attaches to the Secretary’s

discretion over how to allocate the $8 billion lump-sum appropriation under Title V. The

Secretary’s choice of the HUD tribal population data to make the first tranche of Title V payments

is therefore unreviewable. Accordingly, Plaintiff has not demonstrated a likelihood of success on

its APA claim.

II.

Other preliminary injunction factors also counsel in favor of denying Plaintiff’s request. 3

Where, as here, “the Government is the opposing party,” the balance of equities and public interest

factors “merge.” Nken v. Holder,

(2009). Plaintiff in this case fairs slightly

better on the equities than the plaintiff in Prairie Band, where the court found the plaintiff had

unjustifiably delayed bringing suit. See

, at *2. Here, Plaintiff has shown that

it made a concerted effort to resolve the dispute informally before bringing this action, including

outreach to the Secretary’s office as early as May 13, 2020. See Pl.’s Mot. at 6–7 (showing that

Plaintiff was actively engaged in discussions with the Secretary’s staff regarding a resolution of

Plaintiff’s complaint, and that Plaintiff also engaged White House and Department of Interior staff

and congressional representatives on the issue). Still, the equities favor denying relief. As of

3 The court accepts that Plaintiff would suffer irreparable harm absent injunctive relief.

8 today, the Secretary has distributed nearly all Title V funds to Tribal governments, and except for

a negligible portion, what remains are funds slated for Alaska Native Corporations (“ANCs”) that

are tied up in litigation before the D.C. Circuit. 4 The monetary burden of Plaintiff’s claim would

therefore fall almost exclusively on the ANCs, whose share of CARES Act funds, through no fault

of their own, has already been delayed far beyond the statutory deadline, see

(b)(1)

(requiring the Secretary to disburse the allocated funds “not later than 30 days after March 27,

2020”). The ANCs’ interest in the designated Title V funds weighs against the requested injunctive

relief, particularly given the weakness of Plaintiff’s claim on the merits.

Plaintiff asserts that granting relief would not harm the ANCs because “tribes receiving

[Title V] funds based on false data have no legitimate basis to claim those funds.” Pl.’s Mot. at

13. But as noted by the court in the Northern District of Oklahoma in denying Plaintiff’s motion

for temporary restraining order, that argument “presumes . . . that the Department’s formula

overpaid [the ANCs].” See Shawnee Tribe v. Mnuchin, 20-cv-290, ECF No. 19, at 3 (N.D. Okl.

June 29, 2020). “It is possible that [the ANCs’] enrollment numbers were understated too, and

that they were shorted in the same way that [Plaintiff] claims that it was.”

Plaintiff has made

no showing to the contrary. Granting Plaintiff’s request for relief would amount to a judicial

rebalancing of the allocation decisions made by the Secretary, which the court is in no position to

do.

4 The final disposition of the funds slated for ANCs is dependent on the outcome of the D.C. Circuit’s review of this court’s Order granting summary judgment for the Secretary in Confederated Tribes of the Chehalis Reservation v. Mnuchin, 20-cv-1002, ECF No. 112 (D.D.C. July 14, 2020). The other nominal amount that remains undistributed is due to administrative difficulties in paying grantee Tribal governments. See Def.’s Suppl. Mem., ECF No. 34, at 1 n.1.

9 III.

For the foregoing reasons, Plaintiff’s motion for a preliminary injunction, ECF No. 3, is

denied. The parties shall file a Joint Status Report by August 26, 2020, which proposes a schedule

for further proceedings in this matter.

Dated: August 19, 2020 Amit P. Mehta United States District Court Judge

10