Expedited Motion for Preliminary Injunction — Miccosukee Tribe v. Treasury (Doc. 5, September 18, 2020)

Summary

Plaintiff's Expedited Motion for Preliminary Injunction and Incorporated Memorandum of Law by the Miccosukee Tribe of Indians of Florida, Document 5, filed 09/18/20 under page-header Case 1:20-cv-02792-APM; the caption names the U.S. District Court for the Southern District of Florida and Case No. 1:20-cv-23182-KMW. The Tribe moves under Federal Rule of Civil Procedure 65(a) for an order preventing the Department of the Treasury from disbursing $2 million of the remaining "hundreds of millions" of CARES Act funds designated for Tribal governments. It asks for a ruling on or before October 9, 2020. The motion states that on September 14, 2020, the D.C. Circuit issued an order enjoining Treasury from disbursing the remaining funds pending appeal.

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

“Expedited Motion for Preliminary Injunction — Miccosukee Tribe v. Treasury (Doc. 5, September 18, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/document-miccosukee-tribe-of-indians-of-florida-v-u-s-department-of-th-81f334a45e/, SHA-256 65879f54e5bb0e36d9a6b89311d7e714fef5655c9e5361b59ab06aee609e68ca.

Full text

Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 1 of 22

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

THE MICCOSUKEE TRIBE
OF INDIANS OF FLORIDA,

Plaintiff,

v. Case No. 1:20-cv-23182-KMW

UNITED STATES DEPARTMENT OF THE
TREASURY and UNITED STATES OF
AMERICA,

Defendants.

PLAINTIFF’S EXPEDITED MOTION FOR PRELIMINARY INJUNCTION

AND INCORPORATED MEMORANDUM OF LAW

Plaintiff, the Miccosukee Tribe of Indians of Florida (“Miccosukee Tribe” or “Tribe”),

pursuant to Federal Rule of Civil Procedure 65(a), moves the Court for a preliminary injunction

preventing Defendant, the United States Department of the Treasury (“Treasury”), from disbursing

$2 million of the remaining “hundreds of millions” of CARES Act funds specifically designated

for Tribal governments. Congress appropriated the funds at issue to ameliorate the harms Native

American tribes have suffered due to the COVID-19 pandemic, and tasked Treasury with

distributing such funds “based on increased expenditures” of tribal government. In distributing

CARES Act funds, however, Treasury arbitrarily and capriciously determined that the Miccosukee

Tribe had zero members, resulting in a drastically reduced distribution to the Tribe.

If the remaining CARES Act funds are disbursed before this Court rules on the merits of

this case, the Miccosukee Tribe will be irreparably harmed because it will be effectively barred

from obtaining a full and fair remedy for its claims, even if the Court ultimately rules for the Tribe

on the merits. Because the Tribe is likely to succeed on the merits, and meets the other
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 2 of 22

requirements for a preliminary injunction, the Court should prohibit Treasury from disbursing $2

million of the remaining CARES Act funds, pending further proceedings in this case.

NEED FOR EXPEDITED CONSIDERATION BY OCTOBER 9, 2020

The remaining “hundreds of millions” of CARES Act funds are the only funds available to

satisfy the judgment that the Tribe seeks in this case. The matter is urgent, because the remaining

funds could be disbursed to other tribal governments or tribal entities—other than the Miccosukee

Tribe—at any point following the resolution of an expedited appeal pending before the U.S. Court

of Appeals for the D.C. Circuit. See Confederated Tribes of the Chehalis Reservation, et al., v.

Mnuchin, Case # 20-5204 (D.C. Cir.).

Treasury determined that approximately 130 Alaskan Native Corporations and Villages

(“ANCs”) were eligible to receive CARES Act funds specifically designated for Tribal

governments. Several Native American Tribes challenged Treasury’s determination. Whether

ANCs are eligible for CARES Act funds remains in dispute and is currently under expedited

consideration by the U.S. Court of Appeals for the D.C. Circuit. See Confederated Tribes of the

Chehalis Reservation, et al., v. Mnuchin, et al., Case No. 20-5204 (D.C. Cir.). On September 11,

2020, the D.C. Circuit Court heard oral arguments in the Confederated Tribes matter. On

September 14, 2020, the D.C. Circuit issued an order enjoining Treasury from disbursing the

remaining CARES Act funds pending resolution of the appeal. See Confederated Tribes, Case

No. 20-5204 (D.C. Cir.), Document #1861346 (order enjoining disbursement) (copy included as

Exhibit 1). The D.C. Circuit could issue a ruling and revoke its order enjoining Treasury at any

time.

The Miccosukee Tribe cannot determine when the D.C. Circuit will issue an opinion in the

expedited Confederated Tribes matter. The Tribe also cannot determine how long the D.C.

2
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 3 of 22

Circuit’s order enjoining Treasury will remain in effect. Thus, the Tribe cannot specify a specific

date by which it needs a ruling on its preliminary injunction request. The Tribe, however,

reasonably believes that this Court will need to rule on this motion within the next 21 days (on or

before October 9, 2020) in order to prevent Treasury from disbursing funds necessary to resolve

this matter. The Miccosukee Tribe intends to monitor the expedited appeal of the Confederated

Tribes matter and will promptly notify the Court of any change in status that might necessitate a

ruling on the Tribe’s Motion before October 9, 2020.

OVERVIEW

This case arises under the Coronavirus Aid, Relief, and Economic Security Act (“CARES

Act”), Pub. L. 116-136, 134 Stat. 281 (2020), which Congress enacted to provide economic relief

for American workers, families, small businesses, and Tribal, state, and local governments harmed

by the COVID-19 pandemic. The parties’ dispute concerns the portion of CARES Act funds that

Congress earmarked for Tribal governments. Title V of the CARES Act directs Treasury to

allocate $8 billion among the Tribal governments based on their increased expenditures arising

from the pandemic, relative to expenditures during 2019. Treasury decided to use each Tribe’s

population as a proxy for the increased relative expenditures that the statute specifies as the

yardstick for the amount each Tribe is entitled to receive.

Treasury acted arbitrarily and capriciously when it decided the amount allocated to the

Miccosukee Tribe through this population-based decision-making process. Treasury determined

that the Miccosukee Tribe had a population of zero, even though the agency knew that the Tribe’s

population was approximately 600. Treasury reached this incoherent conclusion without

addressing how a Tribe could even exist, much less form a government or be entitled to a

distribution, if it had no members at all. Treasury’s “zero-population” determination resulted in a

3
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 4 of 22

$100,000 distribution to the Tribe (the amount sent to any Tribe with a population of less than 37),

instead of approximately $2 million (the amount the Tribe reasonably believes it should have

received had Treasury based its distribution on the Tribe’s actual population).

Due to the impending distribution of all remaining CARES Act Funds, the Miccosukee

Tribe faces irreparable harm. Once the remaining funds are distributed the Tribe will no longer

have an opportunity for a full and fair remedy in this case. To protect its ability to obtain such a

remedy, the Tribe now moves for entry of a preliminary injunction preventing Treasury from

distributing $2 million. That amount is a small fraction—likely 1% or less—of the “hundreds of

millions” of CARES Act Funds remaining to be distributed by Treasury. But that amount is

substantial for the Tribe, which faces continuing obligations to combat the pandemic. To prevent

the Tribe from irretrievably losing these funds, the Court should issue a preliminary injunction in

order to “protect the movant from irreparable injury and preserve the status quo” pending further

proceedings. Talib v. Skyway Commc’ns Holding Corp., No. 8:05-cv-282-T-17TBM, 2005 U.S.

Dist. LEXIS 61561, at *15 (M.D. Fla. Apr. 5, 2005) (citing United States v. DBB, Inc., 180 F.3d

1277 (11th Cir. 1999)).

STATEMENT OF THE CASE

A. Applicable Statute

On March 27, 2020, Congress enacted the CARES Act to provide economic relief for

Tribal, state, and local governments in connection with the COVID-19 pandemic. Congress set

aside $8 billion in direct aid for “Tribal governments” in Title V of the Act. 42 U.S.C.

§ 801(a)(2)(B).

4
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 5 of 22

In Title V, Congress directed Treasury to distribute relief funds “based on increased

expenditures” in fiscal year 2020 relative to expenditures in fiscal year 2019. Specifically, Title V

states:

From the amount set aside under subsection (a)(2)(B) for fiscal year 2020, the
amount paid under this section for fiscal year 2020 to a Tribal government shall
be the amount the Secretary shall determine, in consultation with the Secretary
of the Interior and Indian Tribes, that is 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 to ensure that all amounts available under subsection
(a)(2)(B) for fiscal year 2020 are distributed to Tribal governments.

Id. § 801(c)(7) (emphasis added). The CARES Act restricted Treasury’s discretion in effectuating

the Title V fund distributions by, among other restrictions, mandating that distributions must be

“based on” such “increased [relative] expenditures” of Tribal governments (as defined in the

statute). Id. §§ 801(c)(7), (g)(5).

B. Treasury’s Determination of the Miccosukee Tribe’s Distribution Based Upon
a Claimed Population of Zero

The Miccosukee Tribe is a federally recognized Tribal government. It therefore is

indisputably entitled to receive Title V funds based on its increased expenditures in fiscal year

2020 relative to fiscal year 2019.

On April 13, 2020, Treasury published a form on its website designed to collect evidence

pertinent to its decisions regarding distribution of the Title V funds. The form—entitled

“Certification for Requested Tribal Data”—sought enrollment data from all 574 federally-

recognized Tribal governments. On April 17, 2020, the Miccosukee Tribe submitted the requested

data to Treasury, certifying its enrollment of 605 members. See Exhibit 2. Treasury never

questioned the Miccosukee Tribe’s enrollment data.

5
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 6 of 22

Three weeks later, on May 5, 2020, Secretary Mnuchin and Department of the Interior

Secretary David Bernhardt issued a joint press release announcing their agreed-upon plan for

allocating the Title V funds. See Exhibit 3.1 According to the plan, Treasury would split the Title

V funds into two allocations. The first sixty percent of the Title V funds ($4.8 billion) would be

distributed based on tribal population (“Population Distribution”). That is the distribution at issue

in this case. Addressing this Population Distribution, the joint press announcement stated that

“Tribal population [was] expected to correlate reasonably well with the amount of increased

expenditures of Tribal governments related directly to the public health emergency, such as

increased costs to address medical and public health needs.” Exhibit 3, p. 2.

Under the plan, Population Distributions were based “on Tribal population data used by

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

Block Grant (IHBG) program” (“IHBG Data”). See Exhibit 4, p. 2 (U.S Dep’t of the Treasury,

Coronavirus Relief Fund, Allocations to Tribal Governments (May 5, 2020)).2 Treasury did not

provide any prior notice of this decision. According to Treasury, it used IHBG Data to determine

Population Distributions because it believed such data was a “reliable and consistently-prepared”

metric. See Exhibit 4, p. 2. The IHBG Data, however, provides inconsistent population counts for

the Tribes. See Exhibit 5.3 The Data includes three types of statistics that ostensibly measure a

Tribe’s population: (1) Census data for “American Indian/Alaskan Natives” (“AIAN Population

1
Also available at: https://home.treasury.gov/news/press-releases/sm998 (last visited
September 17, 2020).
2
Also available at: https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-
Tribal-Allocation-Methodology.pdf (last visited September 14, 2020).
3
Also available at:
https://www.hud.gov/sites/dfiles/PIH/documents/FY%202020%20Final%20Summary%20-
%20Needs%20and%20Allocation.pdf (last visited September 14, 2020).
6
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 7 of 22

Count”), (2) “Enrollment” data, and (3) “Total Service Area Indian Population (“TSAIP”) data.

See Exhibit 5; see also, Exhibit 4, pp. 2–3 & fn. 10. Each category listed a different population

count for the Miccosukee Tribe: (1) an AIAN Population count of zero, (2) an Enrollment count

of 400, and (3) a TSAIP count of 589. Id. Treasury selected the AIAN Population Count—of

zero—as the figure to use. In so doing, Treasury ignored (a) the other two categories of IHBG

data; (b) data provided directly by the Miccosukee Tribe in its “Certification for Requested Tribal

Data”; (c) tribal population data maintained by the U.S. Department of the Interior; and, (d) tribal

population information maintained by Treasury.

On the same day that they announced their population-based formula for allocating Title

V funds, the Treasury Secretary and the Interior Secretary announced the amounts of the first

distribution to Tribal governments. Based on Treasury’s determination that the Miccosukee Tribe

had zero members, the Tribe received a Population Distribution of only $100,000, which was the

distribution amount Treasury assigned to “the smallest Indian Tribes . . . with a population of less

than 37.” See Exhibit 4, p. 2.

C. The Miccosukee Tribe’s Effort to Correct Treasury’s Population Error

Upon learning that Treasury based the Tribe’s Population Distribution on a demonstrably

incorrect AIAN Population Count, the Miccosukee Tribe sought to correct Treasury’s mistake

through consultation with U.S. government representatives. On May 19, 2020, the Tribe sent a

letter to President Donald Trump and Secretary Mnuchin requesting that they correct the mistake.

See Exhibit 6. On May 28, 2020, several Members of the U.S. Congress also sent a letter to

Secretary Mnuchin requesting that he correct the mistake. See Exhibit 7. The Miccosukee Tribe

also contacted White House staff, Treasury staff, Interior staff, and the staff of Florida’s U.S.

7
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 8 of 22

Senators Rick Scott and Marco Rubio. U.S. government representatives indicated that Treasury

realized its mistake and was working on a potential solution.

That solution never came. On June 17, 2020 Treasury announced its distribution of the

remaining 40-percent ($3.2 billion) of Title V funds without correcting the original flawed

Population Distributions. See Exhibit 8 (Coronavirus Relief Fund Allocations to Tribal

Governments Updated (June 17, 2020)).4

D. The Impending Disbursement of the Remaining CARES Act Funds.

Treasury determined that “hundreds of millions” of CARES Act funds should be

distributed to approximately 130 Alaskan Native Corporations (“ANCs”). Several Native

American Tribes challenged the eligibility of ANCs to receive CARES Act funds designated for

Tribal governments. See Confederated Tribes of the Chehalis Reservation, et al., v. Mnuchin,

Case No. 20-cv-01002 (APM) (D.D.C. Apr. 27, 2020). The U.S. District Court for the District of

Columbia enjoined Treasury from distributing CARES Act funds to ANCs after determining that

the Native American Tribes had a reasonable likelihood of success on the merits. See id., Dkt. No.

36, Memorandum Opinion, 2020 U.S. Dist. LEXIS 73355 (D.D.C. Apr. 27, 2020). The District

Court, however, ultimately held that ANCs are eligible to receive CARES Act funds. See id. Dkt.

No. 97, Opinion, 2020 U.S. Dist. LEXIS 112926 (D.D.C. June 26, 2020)). The District Court then

granted an injunction pending the appeal of its decision that ANCs are eligible to receive CARES

Act funds. See id., Dkt. No. 107, Opinion 2020 U.S. Dist. LEXIS 118734 (D.D.C. July 7, 2020).

Whether ANCs are eligible for CARES Act funds remains in dispute and is under expedited

consideration by the U.S. Court of Appeals for the D.C. Circuit. See Confederated Tribes of the

4
Also available at: https://home.treasury.gov/system/files/136/Tribal-Allocation-
Methodology-for-Second-Distribution.pdf (last visited September 14, 2020).
8
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 9 of 22

Chehalis Reservation, et al., v. Mnuchin, et al., Case No. 20-5204 (D.C. Cir.). On September 11,

2020, the D.C. Circuit Court heard oral arguments in the Confederated Tribes matter. On

September 14, 2020, the D.C. Circuit issued an order enjoining Treasury from disbursing the

remaining CARES Act funds pending resolution of the appeal. The D.C. Circuit could issue a

ruling and revoke its order enjoining Treasury at any time.

ARGUMENT

To secure a preliminary injunction, a plaintiff must establish: (1) a substantial likelihood

of success on the merits of the underlying case; (2) that it would suffer irreparable harm without

an injunction; (3) that the harm plaintiff would suffer outweighs the harm the opposing party would

suffer; and (4) that the injunction would not disserve the public interest. See Hoop Culture, Inc.

v. Gap Inc., 648 F. App’x 981, 983 (11th Cir. 2016) (citing Siegel v. LePore, 234 F.3d 1163 (11th

Cir. 2000). This Court should issue the requested preliminary injunction because the Miccosukee

Tribe satisfies all four criteria.

A. The Tribe is Likely to Succeed on the Merits of Its Claim That Treasury’s
Distribution Decision Was Arbitrary and Capricious.

The Administrative Procedure Act (“APA”) empowers this Court to set aside arbitrary and

capricious agency actions. 5 U.S.C. § 706(2)(A). The actions subject to this remedy include agency

determinations regarding grants of money, such as the one at issue here. 5 U.S.C. §§ 551(10)(B),

(11)(A), (13). In considering whether agency actions are arbitrary and capricious, the Court’s role

is to “ensur[e] that agencies have engaged in reasoned decisionmaking.” Judulang v. Holder, 565

U.S. 42, 53 (2011). In particular, the Court must review “whether the agency examined the relevant

data and articulated a satisfactory explanation for its action, including a rational connection

between the facts found and the choice made, and whether the decision was based on a consideration

of the relevant factors and whether there has been a clear error of judgment.” Mozilla Corp. v. FCC,

9
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 10 of 22

940 F.3d 1, 49 (D.C. Cir. 2019) (internal quotations omitted and emphasis added). “Where the

agency has failed to provide a reasoned explanation, or where the record belies the agency’s

conclusion, [the court] must undo its action.” BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C.

Cir. 1999) (citation and quotation omitted).

The Tribe is likely to prove that Treasury’s “zero-population” funding determination is

arbitrary and capricious for at least five reasons. First, Treasury knew at the time that it made the

determination that the population listing of zero was not correct, and knew that the Tribe had

hundreds of members, documented in a variety of different sources of evidence before the agency.

“Reliance on facts that an agency knows are false at the time it relies on them is the essence of

arbitrary and capricious decision-making.” Mo. Pub. Serv. Comm’n v. FERC, 337 F.3d 1066, 1075

(D.C. Cir. 2003).

Second, it was irrational for Treasury to conclude that a Tribe could have zero members

yet still be a Tribe—and one entitled to a distribution of federal funds at that. If a Tribe had zero

members how could it even exist to receive the distribution? The profound internal inconsistency

in Treasury’s determination rendered it arbitrary and capricious. ANR Storage Co. v. FERC, 904

F.3d 1020, 1024 (D.C. Cir. 2018) (agency’s “reasoning cannot be internally inconsistent” or its

decision is arbitrary and capricious) (citing Sierra Club v. EPA, 884 F.3d 1185, 1194–96 (D.C.

Cir. 2018)).

Third, the agency utterly failed to explore or resolve the conflicts among the various

sources of population data (all of which Treasury plainly had before it during the decision-making

process): the Tribe’s April 2020 Certification of 605 (which Treasury itself solicited) and the three

internally-inconsistent population figures in the IHBG report (only one of which Treasury decided

to rely upon). “If an agency fails to examine the relevant data—which examination could reveal,

10
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 11 of 22

inter alia, that the figures being used are erroneous—it has failed to comply with the APA.” Dist.

Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 56–57 (D.C. Cir 2015). Rather than exploring and

resolving the conflicts in the population figures, Treasury simply ignored population data other

than the AIAN figure the agency wanted to rely upon. It was “arbitrary and capricious for [the

agency] to rely on portions of studies in the record that support its position, while ignoring cross

sections in those studies that do not.” Genuine Parts Co. v. EPA, 890 F.3d 304, 313 (D.C. Cir.

2018); see also Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (“an agency cannot ignore

evidence contradicting its position”).

Fourth, because Treasury failed to explore conflicts between the different population

figures presented to it, the agency could not—and did not—give a rational explanation for how it

chose a population number of zero in the face of conflicting evidence. The lack of a rational

explanation for Treasury’s determination rendered it arbitrary and capricious. See, e.g., Tourus

Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001) (an agency must “explain ‘why it chose

to do what it did’ and an agency’s failure to “set forth its reasons for decision” constitutes arbitrary

and capricious agency action); NorthWestern Corp. v. FERC, 884 F.3d 1176, 1179 (D.C. Cir.

2018) (agency decision is arbitrary and capricious if it is not “reasonable and reasonably

explained”); Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (agencies are required

to “adequately explain [their] result[s]”); Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C.

Cir. 2014) (“conclusory statements will not do; an ‘agency’s statement must be one of reasoning’”)

(citation omitted).

Finally, the agency relied upon a generic assumption that the AIAN figure of zero was a

“reliable and consistently-prepared” metric (Exhibit 4, p. 2), in the face of concrete evidence that

it was not. An agency’s “reliance on a report or study without ascertaining the accuracy of the

11
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 12 of 22

data contained in the study or the methodology used to collect the data is arbitrary.” New Orleans

v. SEC, 969 F.2d 1163, 1167 (D.C. Cir. 1992).

B. The Tribe Faces Imminent Irreparable Harm.

The Miccosukee Tribe faces imminent irreparable harm unless the Court grants this motion

for a preliminary injunction. Without that order, the Tribe will almost certainly be forced to forfeit

its due share of vital Title V funds, without any recourse. The Tribe cannot wait to recover its

allocated aid until the end of this litigation, because by that time the remainder of the Title V funds

already will likely be distributed. And once appropriated funds have been disbursed, federal courts

cannot order Congress to expend additional funds. The Tribe will be irreparably harmed if it cannot

recover the funds to which it is entitled.

To establish irreparable harm, “[t]he injury must be ‘neither remote nor speculative, but

actual and imminent’” and “cannot be undone through monetary remedies.” Ne. Fla. Chapter of

Ass’n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). In the Eleventh

Circuit, “[w]hile economic harm will not satisfy the irreparable-harm element in many cases, that

general rule does not necessarily hold where there is no adequate remedy at law to recover damages

for the harm suffered.” Transcon. Gas Pipe Line Co. v. 6.04 Acres, 910 F.3d 1130, 1165 (11th Cir.

2018) (citing Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th

Cir. 2013).

Irreparable harm (from an inadequate remedy) occurs when a plaintiff seeks recovery from

a congressionally appropriated fund that a federal agency already has distributed to other parties.

“Funds appropriated for an agency’s use can become unavailable in three circumstances: if the

appropriation lapses; if the funds have already been awarded to other recipients; or if Congress

rescinds the appropriation.” City of Houston v. Dep’t of Hous. & Urban Dev., 24 F. 3d 1421, 1426

(D.C. Cir. 1994). Where, as here, funds already have been awarded to other recipients, later
12
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 13 of 22

claimants for the same funds are irreparably harmed. See Ambach v. Bell, 686 F.2d 974, 986 (D.C.

Cir. 1982) (“Once the chapter 1 funds are distributed to the States and obligated, they cannot be

recouped. It will be impossible in the absence of a preliminary injunction to award the plaintiffs the

relief they request if they should eventually prevail on the merits.”); see also City of Houston, 24 F.

3d at 1426 (holding that Houston’s challenge to its block grant aid was moot because “the panel

can offer no relief which ‘can redress [appellant’s] asserted grievance’—namely, the denial of over

$2.6 million in CDBG funds.”). Indeed, it is a well-settled matter of constitutional law that federal

courts cannot order the “obligation of funds for which there is no appropriation.” Id.

The Miccosukee Tribe will be irreparably harmed if Treasury distributes the remaining Title

V funds to other Tribes before this Court enters final judgment in this case, because at that point

the Tribe will have no ability to recover the disputed funds. If the Tribe is successful on the merits

of this litigation, it will be entitled to approximately $2 million in additional COVID-19 relief funds

for its 605 members. Those dollars must be paid out of the Title V funds. 42 U.S.C. § 801(a)(2)(B).

Hundreds of millions of Title V dollars have not yet been distributed,5 but there is an imminent and

substantial threat that they soon may be. As discussed previously, in the Confederated Tribes

matter, the D.C. Circuit Court of Appeals is currently considering, on an expedited basis, whether

Treasury can distribute CARES Act funds to Alaskan Native Corporations. See discussion, infra,

pp. 7–8. The D.C. Circuit held oral argument in the case on September 11, 2020 and is now poised

to rule at any time (and likely promptly, given consideration of the appeal on an expedited basis).

In addition, the D.C. Circuit has discretion to issue its mandate immediately. See D.C. Cir. Local

Rule 41(a)(1). Accordingly, if the Circuit affirms, the distribution of the funds could occur

5
Confederated Tribes of the Chehalis Reservation v. Mnuchin, No. 20-5205 (D.C. Cir.);
Appellant’s Brief at 21–22.
13
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 14 of 22

imminently and with minimal (if any) prior notice. At that point the Miccosukee Tribe would be

left without a full and adequate remedy.

C. The Remaining Factors Justify Issuing a Preliminary Injunction.

1. The Harm to the Tribe Outweighs any Harm to Treasury.

The balance of the equities also weighs heavily in the Tribe’s favor. The Miccosukee Tribe

will face substantial harm in losing vital relief funds as it continues to face obligations related to

the pandemic. In stark contrast, Treasury will suffer no harm if it is enjoined from distributing

approximately $2 million of the remaining “hundreds of millions” of Title V funds. Indeed,

Treasury itself previously sought to withhold $678 million of Title V funds from distribution in

order to resolve lawsuits arising from the distributions it made to Tribal governments based on

false population data. See Exhibit 9, p. 2 (Coronavirus Relief Fund Allocations to Tribal

Governments Updated (June 12, 2020)).6 Treasury would not voluntarily cause itself harm.

The Miccosukee Tribe merely asks the Court to preserve the status quo. In such cases, the

balance tips in favor of the plaintiff. See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 904 F.

Supp. 2d 106, 129-30 (D.D.C. 2012) (balance of equities tipped in favor of plaintiffs because

otherwise there “would result in a change in the status quo”); see also Sherley v. Sebelius, 644 F.3d

388, 398 (D.D.C. 2011) (denying a preliminary injunction where it would upend the status quo);

Tex. Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 245-46 (D.D.C. 2014) (granting a

preliminary injunction where doing so “preserve[d] the relative positions of the parties” and

preserved the status quo (quoting Rufer v. FEC, 64 F. Supp. 3d 195, 206 (D.D.C. 2014)).

6
Also available at: https://www.indianz.com/covid19/wp-
content/uploads/2020/06/treasury061220.pdf (last visited September 17, 2020). This document
was previously available on the Treasury website but appears to have been removed.

14
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 15 of 22

2. Issuing the Order Serves the Public Interest.

A preliminary injunction would also serve the public interest. It is well established that

“there is an overriding public interest . . . in the general importance of an agency’s faithful

adherence to its statutory mandate” (here the distribution of funds based upon a rational, evidence-

based decision regarding Title V funds). Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C.

Cir. 1977); see also Bracco Diagnostics v. Shalala, 963 F. Supp. 20, 30 (D.D.C. 1997) (there is “a

strong public interest in requiring an agency to act lawfully, consistent with its obligations under

the APA . . .”).

Furthermore, the Miccosukee Tribe does not seek to withhold funds properly distributed to

other Tribes. Rather, it seeks to enjoin Treasury from disbursing only those Title V funds that the

Miccosukee Tribe would have otherwise received—and to which it is entitled—had accurate and

reliable population data been used in the first place. That amounts to a relatively small percentage

of the remaining Title V funds—approximately $2 million out of the remaining “hundreds of

millions.” ANCs waiting on distributions will suffer minimal harm if their distributions are

temporarily reduced by a modest percentage: $2 million spread out across over one-hundred

Alaskan Native Corporations. The Miccosukee Tribe, on the other hand, would be forced to bear

the full weight of the $2 million loss in aid when its members need it most. Considering these

factors, the public interest favors issuing the preliminary injunction.

D. A Recent D.C. District Court Decision Does Not Justify a Different Result.

In seeking this Court’s urgent intervention, we are mindful that U.S. District Court for the

District of Columbia recently ruled that it was powerless to remedy a CARES Act funding

determination by Treasury—no matter how arbitrary and capricious it may have been. The D.C.

District Court issued that ruling in a similar case involving a different tribe. See The Shawnee

Tribe v. Mnuchin, No. 20-cv-2020, Dkt. No. 48, Memorandum Opinion (D.D.C. Sept. 10, 2020).
15
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 16 of 22

We respectfully submit that this Court should not follow that non-binding out-of-Circuit decision

by another District Court, because it was wrongly decided. See Fishman & Tobin, Inc. v. Tropical

Shipping & Constr. Co., 240 F.3d 956, 965 (11th Cir. 2001) (one District Court judge’s decision

is not binding on another District Court judge).

It is well established that “Congress rarely intends to prevent courts from enforcing its

directives to federal agencies” and that there is “a ‘strong presumption’ favoring judicial review

of administrative action.” Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (citation

omitted). The Court has authority to review Treasury’s funding determination here.

In Shawnee, the D.C. District Court cited case law, primarily Lincoln v. Vigil, 508 U.S.

182, 183 (1993), which created an exception to the presumption of judicial review where the

applicable statute does not provide a yardstick for a court to use to evaluate an agency’s decisions.

Absent a statutory standard, distributions of so-called “lump-sum” appropriations are

unreviewable. Case law cited in Shawnee, however, does not define “lump-sum” appropriations,

and does not hold that courts never have authority to review agency decisions regarding allocations

from such appropriations. To the contrary, numerous courts have held that they do have authority

to review allocation decisions from lump-sum appropriations based upon the specific statutes

before them. See, e.g., Milk Train, Inc. v. Veneman, 310 F.3d 747, 748 (D.C. Cir. 2002)

(authorizing judicial review of agency decisions regarding federal subsidies under 2000

Appropriations Act where the statute required distributions to be based on “economic losses

incurred during 1999”); Robbins v. Reagan, 780 F.2d 37, 48 (D.C. Cir. 1985) (authorizing judicial

review of agency grant decisions under Community Services Block Grant Act).

At a bare minimum, this oversight necessarily includes assuring that the process for

determining the allocation of Title V funds satisfies basic APA standards for rational, evidence-

16
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 17 of 22

based decision-making. Treasury could not seriously argue that this Court would be powerless to

intervene if the agency relied on no evidence at all, or fraudulent evidence, or the flip of a coin, to

allocate these essential funds to Tribal governments.

Furthermore, unlike some so-called lump-sum appropriations, the CARES Act cannot be

considered a standardless delegation of authority to Treasury. The statutory language of the

CARES Act provides a meaningful standard for this Court’s judicial review. Congress mandated

that funding received by a Tribal government “shall” be determined by Treasury “based on

increased expenditures” by that government relative to 2019. 42 U.S.C. § 801(b)(7). The

requirement to base distributions on increased relative expenditures is an obvious statutory

reference point from which the Court can evaluate Treasury’s decisions. The Tribe does not

challenge Treasury’s discretion, as a general matter, to use Tribal population as a proxy for these

increased relative expenditures, given the likely rough correlation between the size of a Tribe and

its expenses. But that does not mean that Treasury also has discretion: (1) to determine Tribal

population through an incoherent decision based on demonstrably false data; (2) to fail to assess

and resolve conflicts in the evidence before the agency; and, (3) to predetermine that one

population figure was consistent and reliable in the face of compelling evidence that it was not.

Where, as here, the tribal population data relied on by Treasury is demonstrably false and the

agency’s decision-making process is irrational, distributions based on that data and process bear

no relationship to the statutory yardstick of increased relative expenditures. Thus, the Court has

authority to police that statutory limitation to ensure that Treasury’s population determination is

not arbitrary and capricious.7

7
It is also significant that Congress believed it was imposing enforceable statutory
constraints on Treasury’s discretion: the CARES Act expressly directs Treasury’s Inspector
General to “conduct monitoring and oversight of the . . . disbursement . . . of funds made

17
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 18 of 22

CONCLUSION

Treasury has never disputed the fact that the Miccosukee Tribe has approximately 600

members. Yet Treasury calculated the Tribe’s award of Title V funds based on zero members,

without providing the Tribe with notice and an opportunity to object. Treasury evidently intends to

disburse the remaining funds as soon as possible after the D.C. Circuit issues its decision. After the

remaining Title V funds are distributed, the Miccosukee Tribe will suffer irreparable harm. Thus,

the Miccosukee Tribe respectfully requests an order enjoining Treasury from distributing Title V

funds that would otherwise be available to the Miccosukee Tribe, or no less than $2 million, until

such time as this matter can be resolved.

REQUEST FOR HEARING

The Miccosukee Tribe respectfully requests a hearing on this Motion. The Tribe believes a

hearing will assist the Court in evaluating the issues presented and will provide the Court the

opportunity to request explanations from the parties regarding their respective positions, as

necessary.

CERTIFICATE OF GOOD FAITH CONFERENCE

(conferred, in part, but unable to resolve issues presented in the motion)

Pursuant to Local Rule 7.1(a)(3)(A), I hereby certify that I have conferred with counsel

for the defendant, Mr. Jason Lynch, Trial Attorney, U.S. Department of Justice, in a good faith

effort to resolve the issues raised herein but have been unable to do so.

Approximately 130 ANCs may constitute non-parties who may be affected by the relief

sought in the Expedited Motion. It is not practical to confer with each of the 130 ANCs.

available under this section.” 42 U.S.C. § 801(f)(1) (emphasis added). If the statute is
sufficiently specific for the Inspector General to police Treasury’s disbursements, it is also
sufficiently specific for this Court to conduct a meaningful review.
18
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 19 of 22

However, I have attempted to confer with counsel for two organizations which represent ANCs.

Attorneys Paul Clement, Erin Murphy, Ragan Naresh, and Matthew Rowen of the Kirkland &

Ellis law firm represent trade associations which represent the interests of ANCs. Specifically,

the Kirkland & Ellis attorneys represent the Alaska Native Village Association, Inc., and the

Association of ANCSA Regional Corp. Presidents/CEO’s Inc., among others, as Intervenor

Defendants/Appellees in the Confederated Tribes matter pending before the D.C. Circuit Court

of Appeals. On September 17 and 18, 2020, I emailed the Kirkland & Ellis attorneys advising

them that the Miccosukee Tribe intends to file its Expedited Motion and asking whether their

clients had any position regarding the motion. On September 17, 2020, I also spoke by phone

with attorney Ragan Naresh of the Kirkland & Ellis law firm and advised/asked the same. As of

the time of the filing of this Motion, I have not received a response from the Kirkland & Ellis

attorneys. I will promptly update the Court if I receive a response.

/s/ George B. Abney
George B. Abney

Dated this 18th day of September, 2020.

/s/ George B. Abney
George B. Abney
Daniel F. Diffley (to seek admission pro hac vice)
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
(404) 881-7000 (telephone)
(404) 881-4777 (facsimile)
E-mail: George.Abney@alston.com

19
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 20 of 22

Daniel G. Jarcho (to seek admission pro hac vice)
ALSTON & BIRD LLP
950 F Street, N.W.
Washington, DC 20004-1404
(202) 239-3300 (telephone)
(202) 239-3333 (facsimile)
E-mail: Daniel.Jarcho@alston.com

20
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 21 of 22

CERTIFICATE OF SERVICE

I hereby certify that on September 18, 2020, I e-mailed a copy of the foregoing document
along with the accompanying exhibits to Mr. Jason Lynch, Trial Attorney, U.S. Department of
Justice, at the following email address: Jason.lynch@usdoj.gov. Mr. Lynch has not yet filed a
notice of appearance, but he has advised me that he will be representing the government in this
matter.

/s/ George B. Abney
George B. Abney
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
(404) 881-7000 (telephone)
(404) 881-4777 (facsimile)
E-mail: George.Abney@alston.com

21
Case 1:20-cv-02792-APM Document 5 Filed 09/18/20 Page 22 of 22

EXHIBIT LIST

Exhibit 1: Order Enjoining Disbursement, Confederated Tribes, et al. v. Mnuchin,
Case No. 20-5204 (D.C. Cir.), Document #1861346

Exhibit 2: Certification of Miccosukee Tribe (April 17, 2020)

Exhibit 3: Press Release from U.S. Treasury & U.S. Dept of Interior (May 5, 2020)

Exhibit 4: U.S Treasury, Coronavirus Relief Fund, Allocations to Tribal Governments
(May 5, 2020)

Exhibit 5: U.S. Dep’t. of Housing and Urban Development, Indian Housing Block
Grant data (February 2020)

Exhibit 6: Letter from Miccosukee Tribe to President Donald Trump and Secretary of
Treasury Steven Mnuchin (May 19, 2020)

Exhibit 7: Letter from Member of Congress to Secretary Mnuchin (May 8, 2020)

Exhibit 8: U.S. Treasury, Coronavirus Relief Fund Allocations to Tribal Governments
Updated (June 17, 2020)

Exhibit 9: U.S. Treasury, Coronavirus Relief Fund Allocations to Tribal Governments
Updated (June 12, 2020)

Exhibit 10: Affidavit of Jeanine Bennett, General Counsel for the Miccosukee Tribe

Exhibit 11: Affidavit of George B. Abney, attorney for the Miccosukee Tribe

File and source

File: 5-expedited-motion-preliminary-injunction-by-the-miccosukee-tr.pdf
Size: 151,077 bytes
SHA-256: 65879f54e5bb0e36d9a6b89311d7e714fef5655c9e5361b59ab06aee609e68ca
Our copy: 5-expedited-motion-preliminary-injunction-by-the-miccosukee-tr.pdf
Original: storage.courtlistener.com