Complaint, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 1 (April 30, 2020)
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Complaint in Case No. 1:20-cv-01136, Document 1, filed April 30, 2020, in the U.S. District Court for the District of Columbia by the Agua Caliente Band of Cahuilla Indians and five other tribal plaintiffs against Steven Mnuchin, sued in his official capacity as Secretary of the Treasury. The plaintiffs allege that the Secretary failed to disburse Title V funds to Tribal governments by April 26, 2020, as 42 U.S.C. § 801(b)(1) requires. Count I seeks declaratory, injunctive and mandamus relief, and the prayer asks the court to order disbursement within 24 hours consistent with the April 27, 2020 Order in Confederated Tribes of the Chehalis Reservation, et al v. Mnuchin. The signature block names Keith M. Harper, Catherine F. Munson and Mark H. Reeves.
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“Complaint, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 1 (April 30, 2020).”
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Case 1:20-cv-01136 Document 1 Filed 04/30/20 Page 1 of 10
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, )
)
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
)
STEVEN MNUCHIN, in his official )
Capacity as the Secretary of the United )
States Department of the Treasury, )
1500 Pennsylvania Ave., N.W. )
Washington, D.C. 20220 )
) COMPLAINT
)
Defendant. )
Case 1:20-cv-01136 Document 1 Filed 04/30/20 Page 2 of 10
Plaintiffs the 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 (“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
and information to the Secretary as requested by the Secretary to effectuate timely distribution of
such funds.
4. As of today, April 30, 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
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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.
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.
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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-
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
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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 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.
16. 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.
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17. 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
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
18. 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.
19. 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.
20. 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
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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
additional resources to tribes, including Plaintiff Tribes, so as to ensure that they had the resources
for such expenditures.
21. 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.
22. 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).
23. 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).)
24. 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.
25. 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, April 30, 2020, Defendant has failed to disburse the
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funds. Defendant’s delay and inaction is in violation of a mandatory, non-discretionary duty
imposed by the CARES Act.
26. Any further delay in funding will force Plaintiffs to curtail essential governmental
services and furlough or lay off a substantial number of employees.
27. 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
28. The Plaintiffs reallege and incorporate by reference all preceding paragraphs and
allegations.
29. The APA authorizes judicial review of agency actions, including actions
unlawfully withheld or unreasonably delayed. 5 U.S.C. § 702.
30. The APA provides that the reviewing Court shall compel agency action unlawfully
withheld or unreasonably delayed. 5 U.S.C. § 706(1).
31. 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.
32. 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.
33. 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.
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34. The Defendant’s duty to disburse the funds within 30 days of enactment of the
CARES Act is a plainly defined and peremptory duty.
35. 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.
36. 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.
37. 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 30th day of April, 2020.
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Respectfully submitted,
_/s/ Keith M. Harper___________
Keith M. Harper, DC Bar No. 451956
_/s/ Catherine F. Munson_______
Catherine F. Munson, DC Bar No. 985717
_/s/ Mark H. Reeves___________
Mark H. Reeves, DC Bar No. 1030782
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
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