Amended Complaint, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 11 (May 3, 2020)

Summary

First Amended Complaint, Doc. 11 in Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136-APM, in the United States District Court for the District of Columbia, filed May 3, 2020. Tribal plaintiffs allege that the Secretary of the Treasury, Steven Mnuchin, has failed to disburse Title V funds to Tribal governments under the CARES Act by the April 26, 2020 date. Count I seeks declaratory, injunctive and mandamus relief under the Administrative Procedure Act and the Mandamus Act. The prayer asks the Court to order disbursement within 24 hours and to award attorney's fees and costs. The signature block names Keith M. Harper of Kilpatrick Townsend & Stockton LLP, attorneys for plaintiffs.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Amended Complaint, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 11 (May 3, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/amended-complaint-agua-caliente-band-of-cahuilla-indians-et-al-v-mnuch-08ade5e6d5/, SHA-256 96ba0acf4769a62e5c3cfd3571174e9b423a25a9bf1136f75cb3fe533dcd111a.

Full text

Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AGUA CALIENTE BAND OF )
CAHUILLA INDIANS, )
5401 Dinah Shore Drive, )
Palm Springs, CA 92264 )
)
AK-CHIN INDIAN COMMUNITY, )
42507 W. Peters and Nall Road )
Maricopa, AZ 85138-3940 )
)
ARAPAHO TRIBE OF THE WIND )
RIVER RESERVATION )
533 Ethete Road )
Ethete, WY 82520, )
)
CHEROKEE NATION )
P.O. Box 1533 )
Tahlequah, OK 74465, )
)
CHICKASAW NATION )
520 E. Arlington )
Ada, OK 74820, )
)
CHOCTAW NATION OF )
OKLAHOMA )
P.O. Box 1210 )
Durant, OK 74702 )
)
SNOQUALMIE INDIAN TRIBE, )
9571 Ethan Wade Way SE, )
Snoqualmie, WA 98065 )
)
YUROK TRIBE OF THE YUROK )
RESERVATION )
190 Klamath Boulevard )
Klamath, CA 95548, )
)
Plaintiffs, )
)
v. ) Case No. 1:20-cv-1136 (APM)
)
STEVEN MNUCHIN, in his official )
Capacity as the Secretary of the United )
States Department of the Treasury, )
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 2 of 12

1500 Pennsylvania Ave., N.W. )
Washington, D.C. 20220 )
) FIRST AMENDED COMPLAINT
)
Defendant. )

Plaintiffs the Agua Caliente Band of Cahuilla Indians, Ak-Chin Indian Community,

Arapaho Tribe of the Wind River Reservation, Cherokee Nation, Chickasaw Nation, Choctaw

Nation of Oklahoma, Snoqualmie Indian Tribe, and Yurok Tribe of the Yurok Reservation

(“Plaintiffs”) federally recognized Indian Tribal governments, by and through counsel, state and

allege as follows:

INTRODUCTION

1. Congress enacted the Coronavirus Aid, Relief, and Economic Security Act

(CARES Act), Pub. L. 116-136, which President Trump signed into law on March 27, 2020, to

respond to the devastating and ongoing impacts of the COVID-19 pandemic. Title V of the CARES

Act amends the Social Security Act (42 U.S.C. §§ 301, et seq.), and appropriates $150 billion for

fiscal year 2020 (Title V funds) for “payments to States, Tribal governments, and units of local

government.” 42 U.S.C. § 801(a)(1). Of that sum, $8 billion is “reserve[d] . . . for making payments

to Tribal governments.” Id. § 801(a)(1).

2. Congress, responding to the urgent situation throughout Indian Country and the

desperate need for these resources, mandated that the Secretary of the United States Department

of the Treasury (Secretary) disburse Title V funds to Tribal governments “not later than 30 days

after” March 27, 2020, the date of enactment of this section—in other words, by April 26, 2020.

Id. § 801(b)(1).

3. Plaintiffs are each federally recognized Indian tribes, acting through their Tribal

governments, who qualify to receive Title V funds and have submitted the requisite certifications

2
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 3 of 12

and information to the Secretary as requested by the Secretary to effectuate timely distribution of

such funds.

4. As of today, May 3, 2020, the Secretary has violated his clear non-discretionary

duty to act in accordance with the CARES Act mandate by failing to disburse Title V funds to

Tribal governments, including the Plaintiffs, within the timeframe Congress determined. Plaintiffs

are in dire need of the Title V funds, as Congress recognized, to support the necessary and

increased expenditures caused by the COVID-19 pandemic. Plaintiffs’ injuries are ongoing,

worsening, and irreparable such that if the Secretary does not immediately disburse the emergency

relief funds, Plaintiffs will be forced to curtail essential governmental services and furlough or lay

off a substantial number of employees. Plaintiffs request that the Court order the Secretary to

immediately disburse Title V funds as directed by the CARES Act and this Court’s Order, issued

on April 27, 2020 in Confederated Tribes of the Chehalis Reservation, et al v. Mnuchin, Case No.

1:20-cv-01002-APM (Doc. 36) (“April 27, 2020 Order”).

JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1361,

and 1362.

6. Plaintiffs Agua Caliente Band of Cahuilla Indians, Ak-Chin Indian Community,

Arapaho Tribe of the Wind River Reservation, Cherokee Nation, Snoqualmie Indian Tribe, and

Yurok Tribe of the Yurok Reservation have governing bodies duly recognized by the Secretary of

the U.S. Department of the Interior. The Plaintiffs assert claims arising under the Constitution and

laws of the United States, including the Administrative Procedures Act, 5 U.S.C. §§ 701-706 and

the Mandamus Act, 28 U.S.C. § 1361.

3
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 4 of 12

7. This suit alleges that the Secretary is failing to act in accordance with a mandatory,

non-discretionary duty imposed by the CARES Act. Accordingly, Defendant has consented to suit

under the Administrative Procedure Act, 5 U.S.C. § 702.

8. The allegations of the Complaint give rise to an actual controversy within the

meaning of 28 U.S.C. § 2201.

9. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because the

Defendant, the Secretary of the U.S. Department of the Treasury, is an officer of the United States

and because a substantial part of the actions or omissions giving rise to the claims occurred in this

District, a substantial part of the property that is the subject of the action is situated in this District,

and the Defendant maintains his principal place of business in this District.

THE PARTIES

10. Plaintiff tribes are federally recognized Indian tribal government whose governing

bodies are recognized by the Secretary of the Interior. See Indian Entities Recognized by and

Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462-

01, 5463 (Jan. 30, 2020).

11. The Agua Caliente Band of Cahuilla Indians exercises sovereign powers of self-

governance and jurisdiction over the Agua Caliente Reservation, which was set aside by Executive

Orders in 1876 and 1877 and is located within the exterior boundaries of the State of California.

Agua Caliente brings this action through its Tribal government on its own behalf and on behalf of

its members.

12. The Ak-Chin Indian Community exercises sovereign powers of self-governance

and jurisdiction over the Ak-Chin Indian Community Reservation, which was set aside by

Executive Order in 1912 and is located within the exterior boundaries of the State of Arizona. Ak-

4
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 5 of 12

Chin brings this action through its Tribal government on its own behalf and on behalf of its

members.

13. The Arapaho Tribe of the Wind River Reservation exercises powers of self-

governance and jurisdiction. The Arapaho Tribe of the Wind River Reservation is a signatory to

the Fort Laramie Treaties of 1851 and 1868, their Reservation is shared with the Eastern Shoshone

Tribe of the Wind River Reservation and is located within the exterior boundaries of Wyoming.

The Arapaho Tribe of the Wind River Reservation brings this action through its Tribal government

on its own behalf and on behalf of its members.

14. The Cherokee Nation is a federally recognized Indian tribe located in Oklahoma,

and with over 383,000 citizens is the largest Indian tribe in the United States. In the 1830s, the

United States forced the Nation to remove from its Georgia homeland to present-day Oklahoma.

By the mid-19th century, most members of the Cherokee Nation had been forcibly moved to the

Indian Territory in what is today eastern Oklahoma. Treaties between the United States and the

Nation entered in 1835, 1846 and 1866 defined the boundaries of the Nation’s territory and

guaranteed the Nation’s sovereign powers of self-governance and jurisdiction over those lands.

Cherokee Nation brings this action through its Tribal government on its own behalf and on behalf

of its members.

15. The Chickasaw Nation, a federally recognized Indian tribe of 70,934 citizens, is

signatory to numerous treaties with the United States, including the Treaty of Hopewell, 7 Stat. 24

(Jan. 10, 1786); the Treaty of Doaksville, 11 Stat. 573 (Mar. 24, 1837); the Treaty of Washington,

11 Stat. 611 (Feb. 21, 1856); and the Treaty of Washington, 14 Stat. 769 (Jun. 28, 1866). Since its

forced removal from its aboriginal homeland in the 1830s and 40s, the Chickasaw Nation occupies

a treaty homeland in present-day Oklahoma and operates pursuant to its Constitution, first ratified

5
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 6 of 12

by its citizens in 1850 and reformed and re-ratified in 1983. The Chickasaw Nation brings this

action through its Tribal government on its own behalf and on behalf of its members.

16. The Choctaw Nation of Oklahoma is a federally recognized tribe located in

Oklahoma with 198,358 tribal members and a Reservation comprised of 6,952,960 acres of land.

It exercises sovereign powers of self-governance and jurisdiction over the Choctaw Nation of

Oklahoma Reservation pursuant to the Constitution of the Choctaw Nation of Oklahoma of 1983.

Choctaw Nation brings this action through its Tribal government on its own behalf and on behalf

of its members.

17. The Snoqualmie Indian Tribe (sdukwalbixw in the Lushootseed language),

exercises sovereign powers of self-governance and jurisdiction over the Snoqualmie

Reservation. The Snoqualmie Indian Tribe is a signatory to the Treaty of Point Elliott of

1855. The Snoqualmie Indian Reservation was proclaimed on October 20, 2006, and is located

within the exterior boundaries of the State of Washington. The Snoqualmie Indian Tribe brings

this action through its Tribal government on its own behalf and on behalf of its members.

18. The Yurok Tribe of Yurok Reservation exercises powers of self-governance and

jurisdiction. The present day Yurok Reservation was established by partition pursuant to the

Hoopa-Yurok Settlement Act of 1988 and is located in the exterior boundaries of California. The

Yurok Tribe of the Yurok Reservation brings this action through its Tribal government on its own

behalf and on behalf of its members.

19. Defendant Steven Mnuchin, sued in his official capacity as the Secretary of the U.S.

Department of the Treasury, is charged by Congress with distributing Title V funds to Tribal

governments no later than April 26, 2020. Defendant’s failure to distribute Title V funds by the

6
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 7 of 12

date mandated in the CARES Act violates the plain language of the Act and threatens the Plaintiffs

with imminent irreparable injury, as set forth in greater detail below.

FACTUAL BACKGROUND

20. Plaintiff Tribes each provide a wide array of governmental services throughout their

Reservations and for the benefit of their Tribes. Some of the services the Plaintiff Tribes provide

include, but are not limited to, healthcare, food distribution, heating assistance, education, planning

and development services, environmental regulatory services, building inspection services, food

and safety regulatory services, power services, water and water treatment, police, fire, social

services, housing, judicial services, health and welfare services, educational programs, and social

and cultural preservation facilities and programs.

21. Plaintiffs have each declared Tribal States of Emergency and responsibly have

closed their tribal enterprises in response to the COVID-19 pandemic. The closing of these

enterprises has eliminated the Tribes’ sources of governmental revenue that permit each ordinarily

to provide essential government services and employee salaries and benefits.

22. Tribal Plaintiffs have taken emergency protective measures and incurred

substantial unbudgeted expenses to address the COVID-19 crises. For example, Plaintiff Tribes

have procured additional personal protective equipment (PPE) for distribution to Tribal members

and Tribal staff; procured and distributed water, toilet paper and food to Tribal members; increased

spending on cleaning and sanitation supplies, including washing stations and thermometers, tents

for testing facilities, medical equipment, testing supplies, public communication materials;

services to tribal elders and food distribution programs; incurred additional IT and professional

services related expenses; and incurred additional security expenses to secure closed facilities.

These emergency services are unbudgeted expenses. Congress understood that tribes would incur

these COVID-19 related expenditures and enacted Title V of the CARES Act precisely to provide
7
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 8 of 12

additional resources to tribes, including Plaintiff Tribes, so as to ensure that they had the resources

for such expenditures.

23. If the Plaintiff Tribes do not receive Title V funds immediately, Plaintiffs will be

forced to take additional measures such as reducing and curtailing additional essential

governmental services or laying off or furloughing their employees.

24. The increased and necessary unbudgeted expenditures by the Plaintiff Tribes

resulting from the devastating impacts of the COVID-19 pandemic are exactly the costs that

Congress intended the Title V funds to cover. See 42 U.S.C. § 801(d).

25. This Court recently held, consistent with the plain statutory language, that the

CARES Act “requires the Secretary [] to disburse the Title V funds to the Tribal governments ‘not

later than 30 days after’ March 26, 2020, the date of enactment of this section – that is, by April

26, 2020.” (Court’s April 27, 2020 Order, citing 42 U.S.C. § 801(b)(1).)

26. On April 13, 2020, the Secretary published on the Treasury Department’s website

a form titled “Certification for Requested Tribal Data” (“Certification”), which requested certain

data to effectuate disbursement of the CARES Act funds.

27. Plaintiffs each submitted the requisite Certification and other information before

the Secretary’s April 17, 2020 deadline. The Defendant possesses all of the requisite information

needed to disburse the funds to the Plaintiffs, and has had such information for nearly two weeks.

Nevertheless, as of the date of this filing, May 3, 2020, Defendant has failed to disburse the funds.

Defendant’s delay and inaction is in violation of a mandatory, non-discretionary duty imposed by

the CARES Act.

28. Any further delay in funding will force Plaintiffs to curtail essential governmental

services and furlough or lay off a substantial number of employees.

8
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 9 of 12

29. This Court can redress the Plaintiffs’ injuries by awarding declaratory, injunctive,

and mandamus relief requiring Defendant to disburse the Title V funds within 24 hours in a manner

consistent with the CARES Act and this Court’s April 27, 2020 Order.

Count I – Declaratory, Injunctive, and Mandamus Relief under 28 U.S.C. § 2201-
2202, 5 U.S.C. § 706, and 28 U.S.C. § 1361

30. The Plaintiffs reallege and incorporate by reference all preceding paragraphs and

allegations.

31. The APA authorizes judicial review of agency actions, including actions

unlawfully withheld or unreasonably delayed. 5 U.S.C. § 702.

32. The APA provides that the reviewing Court shall compel agency action unlawfully

withheld or unreasonably delayed. 5 U.S.C. § 706(1).

33. Under the Mandamus Act, a federal court may “compel an officer or employee of

the United States or any agency thereof to perform a duty owed to the Plaintiff.” 28 U.S.C. § 1361.

34. The CARES Act requires the Secretary to disburse Title V funds to Tribal

governments “not later than 30 days after” March 27, 2020, the date of its enactment—in other

words, by April 26, 2020. Id. § 801(b)(1). Plaintiffs are entitled to an order declaring the same and

compelling Defendant through a mandatory injunction to disburse funds without further delay.

35. By failing to disburse the funds, Defendant is violating a clear, non-discretionary

and mandatory duty to act as mandated by Congress through the CARES Act.

36. The Defendant’s duty to disburse the funds within 30 days of enactment of the

CARES Act is a plainly defined and peremptory duty.

37. In light of the clear statutory mandate, Defendant’s inaction in failing to disburse

the Title V funds amounts to inaction unlawfully withheld or unreasonable delayed.

9
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 10 of 12

38. The Plaintiffs are entitled to a preliminary injunction and mandamus relief requiring

the Secretary to immediately disburse the Title V funds to the Plaintiffs in a manner consistent

with the CARES Act and the Court’s April 27, 2020 Order.

39. The Plaintiffs will suffer irreparable harm and have no other adequate remedy if

Defendant continues to delay in disbursing the Title V funds.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs respectfully request that this Court:

1. Enter a judgment pursuant to 28 U.S.C. § 2201 declaring that Defendant’s failure

to disburse Title V funds violates the CARES Act and amounts to agency action unlawfully

withheld or unreasonably delayed under 25 U.S.C. § 706(1)(a).

2. Preliminarily order Defendant to disperse Title V funds to the Plaintiffs within 24

hours in a manner consistent with the CARES Act and this Court’s April 27, 2020 Order.

3. Issue a writ of mandamus requiring Defendant to disperse the Title V emergency

relief funds to the Plaintiffs within 24 hours in a manner consistent with the CARES Act and this

Court’s April 27, 2020 Order.

4. Award the Plaintiffs their reasonable attorney’s fees, costs, and other such relief

as the Court deems just and appropriate.

Dated this 3rd day of May, 2020.

Respectfully submitted,

_/s/ Keith M. Harper___________
Keith M. Harper, DC Bar No. 451956
Catherine F. Munson, DC Bar No. 985717
Mark H. Reeves, DC Bar No. 1030782

10
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 11 of 12

KILPATRICK TOWNSEND & STOCKTON LLP
607 14th Street, N.W.
Suite 1100
Washington, D.C. 20006
Tel: 202-508-5800
Fax: 202-508-5858

Rob Roy Smith (pro hac vice motion
forthcoming)
WSBA No. 33798
KILPATRICK TOWNSEND & STOCKTON LLP
1420 Fifth Avenue, Suite 3700
Seattle, Washington 98101
Tel: (206) 467-9600
Fax: (206) 623-6793

Attorneys for Plaintiffs

11
Case 1:20-cv-01136-APM Document 11 Filed 05/03/20 Page 12 of 12

CERTIFICATE OF SERVICE

I hereby certify that on May 3, 2020, I electronically filed the foregoing First Amended

Complaint with the clerk of the Court using the CM/ECF system which will send notification of

such filing to the parties registered in the Court’s CM/ECF system.

In addition, a true and correct copy of the First Amended Complaint will be sent tomorrow

by UPS overnight mail to the following:

Steven Mnuchin, Secretary
Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220

I also emailed a copy of Plaintiffs’ First Amended Complain to Jason Lynch,

Jason.Lynch@usdoj.gov, based on the understanding that Mr. Lynch represents the United States

in this matter.

/s/ Keith Harper

File and source

File: 11-amended-complaint.pdf
Size: 57,523 bytes
SHA-256: 96ba0acf4769a62e5c3cfd3571174e9b423a25a9bf1136f75cb3fe533dcd111a
Our copy: 11-amended-complaint.pdf
Original: storage.courtlistener.com