Brief of Plaintiff Tribes as Amici Curiae — Prairie Band Potawatomi Nation v. Mnuchin (D.D.C., Doc. 19-1)

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Brief of Plaintiff Tribes as amici curiae, Document 19-1, filed 06/10/20 in Prairie Band Potawatomi Nation v. Steven Mnuchin, Case No. 1:20-cv-01491, U.S. District Court for the District of Columbia. The Agua Caliente Band of Cahuilla Indians, Cherokee Nation, Chickasaw Nation, Yurok Tribe of the Yurok Reservation and the other tribes named in Case No. 1:20-cv-1136-APM state that they take no position on the merits of Prairie Band's Motion for a Temporary Restraining Order. They ask the Court to ensure that any injunction granted to Prairie Band is narrowly tailored to withhold only the funds needed to remedy the alleged $7.65 million in harm, and does not prevent the Secretary from disbursing the rest of the remaining Title V funds. The brief is dated June 10, 2020 and bears /s/ Keith M. Harper.

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        Case 1:20-cv-01491-APM Document 19-1 Filed 06/10/20 Page 1 of 4



                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 PRAIRIE BAND POTAWATOMI NATION,

                 Plaintiff,

         v.
                                                                     Case No. 1:20-cv-01491
 STEVEN MNUCHIN, in his official capacity as
 Secretary of Treasury,

                 Defendant.

                    BRIEF OF PLAINTIFF TRIBES AS AMICI CURIAE1

       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

(“Plaintiff Tribes”) in the matter of Agua Caliente Band of Cahuilla Indians, et al. v. Steven

Mnuchin, Case No. 1:20-cv-1136-APM, hereby submit this amici curiae brief concerning the

Prairie Band Potawatomi Nation’s (“Prairie Band”) Motion to a Temporary Restraining Order

(“Motion”) (Dkt. No. 2).2 Plaintiff Tribes offer this brief to provide the Court with Plaintiff Tribes’

perspective to assist the Court in deciding Prairie Band’s Motion.

       Plaintiff Tribes take no position on the merits of Prairie Band’s Motion, and understand

and share Prairie Band’s frustration with the failure of Treasury Secretary Steven Mnuchin to




1 No counsel for a party authored this brief in whole     or in part, no party or counsel for a party
contributed money intended to fund preparation or submission of this brief, and no person or entity
other than amici, their members, and their counsel provided any monetary contribution toward the
preparation or submission of this brief.
2 Undersigned counsel learned of this case through public media sources. Despite the Minute Order

of this Court dated June 8, 2020 requiring counsel for Prairie Band to notify counsel for the
Plaintiff Tribes of the filing, no such notice has been provided.
        Case 1:20-cv-01491-APM Document 19-1 Filed 06/10/20 Page 2 of 4



comply with his statutory duty to disburse all of the pandemic relief funding appropriated for tribal

governments under Title V of the Coronavirus Aid, Relief, and Economic Security Act (“CARES

Act”), Pub. L. 116-136 (hereinafter “Title V funds”). Plaintiff Tribes respect the difficult choices

that need to be made by other sovereign Tribal governments in the absence of the full funding

promised by Congress.

       However, as made clear in Plaintiff Tribes’ recently filed renewed motion for a temporary

restraining order (Agua Caliente Band of Cahuilla Indians, et al., Dkt. No. 37), Plaintiff Tribes

cannot support any relief in this case that would cause further delays in releasing all of the Title V

funds. The longer the Secretary delays in distributing all of the Title V funds, the greater the harm

incurred by Plaintiffs Tribes will be. The Secretary’s continued delay in performing this duty in

the context of an unprecedented public health emergency is egregious and warrants the injunctive

relief sought by the Plaintiff Tribes to release the balance of the funds by June 12, 2020.

       If the Court is inclined to consider the relief sought by Prairie Band, such relief should be

narrowly tailored to avoid harm to the Plaintiff Tribes – in other words, any injunction granted to

Prairie Band must not be as broad as the one sought and prevent the Secretary from disbursing all

remaining Title V funds. Dkt. No. 2. It is the law of this Circuit that an injunction must be

“narrowly tailored to remedy the specific harm shown.” Neb. Dep’t of Health & Human Servs. v.

Dep’t of Health and Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (quotation marks omitted).

The need for narrow tailoring is particularly important in the context of a temporary restraining

order, where the court has yet to finally resolve the merits of the dispute. As the court made clear

in Barrow v. Graham, “[t]he purpose of a temporary restraining order is to preserve the status quo

for a limited period of time until the Court has the opportunity to pass on the merits of the demand

for a preliminary injunction.” 124 F.Supp.2d 714, 715-16 (D.D.C. 2000) (citations omitted).



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        Case 1:20-cv-01491-APM Document 19-1 Filed 06/10/20 Page 3 of 4



       Here, Prairie Band alleges that they were shorted $7.65 million from the first distribution

of Title V funds based on population data. Dkt. No. 1 ¶ 48. While the Secretary’s discretion is not

limitless, see, e.g., Confederated Tribes of Chehalis Reservation v. Mnuchin , No. 20-cv-01002

(APM), 2020 WL 1984297, at *5 (D.D.C. Apr. 27, 2020), it is broad, see Lincoln v. Vigil, 508 U.S.

182, 192 (1993). Even though the data and process is imperfect for how the first distribution was

formulated, Prairie Band’s claims face a steep uphill climb. Id. (“the very point of a lump-sum

appropriation is to give an agency the capacity to adapt to changing circumstances and meet its

statutory responsibilities in what it sees as the most effective or desirable way.”). What is not

discretionary, however, is the Secretary’s duty to disburse the remaining Title V funds without

delay. 42 U.S.C. § 801(b)(1) (“not later than 30 days after March 27, 2000, the Secretary shall pay

each State and Tribal Government”); Agua Caliente Band of Cahuilla Indians, et al., Dkt. No. 29

at 10 (“[Congress] directed that the Secretary ‘shall pay’ qualifying Tribal governments ‘not later

than 30 days after’ March 27, 2020, or by April 26, 2020.”). Thus, consistent with Circuit law,

rather than entering a sweeping injunction that bars distribution of all remaining Title V funds, if

the Court is considering any preliminary relief at all, Plaintiff Tribes respectfully suggest that this

Court craft an injunction that directs the Secretary to hold back the $7.65 million which is in

dispute from the remaining Title V funds. This relief would enable the Secretary to immediately

disburse the balance of the Title V funds without further delay as requested by the Plaintiff Tribes.

Such a limited, narrow injunction also would preserve the status quo by requiring the Secretary to

withhold sufficient funds to make Prairie Band whole should it succeed on the merits, without

causing undue harm to Plaintiff Tribes who are in immediate need of the remaining Title V Funds

due to the crisis caused by the COVID-19 pandemic.




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        Case 1:20-cv-01491-APM Document 19-1 Filed 06/10/20 Page 4 of 4



                                        CONCLUSION

       Plaintiff Tribes respectfully request that this Court ensure that any injunction which might

be granted to Prairie Band be narrowly tailored to withhold only those funds necessary to remedy

the specific alleged $7.65 million in harm suffered by Prairie Band, and not prevent the Secretary

from disbursing the rest of the remaining Title V funds.

Respectfully submitted June 10, 2020.

                                                     /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

                                                     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 (admitted pro hac vice)
                                                     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 Amici Curiae Plaintiff Tribes




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