Expedited Motion, Miccosukee Tribe of Indians of Florida v. U.S. Department of the Treasury, No. 1:20-cv-23182 (S.D. Fla.), Doc. 5 (September 18, 2020)
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Plaintiff's Expedited Motion for Preliminary Injunction and Incorporated Memorandum of Law filed September 18, 2020 as Document 5 by the Miccosukee Tribe of Indians of Florida against the U.S. Department of the Treasury and the United States of America, Case No. 1:20-cv-23182-KMW, in the U.S. District Court for the Southern District of Florida. The Tribe asks the court to prevent Treasury from disbursing $2 million of the remaining "hundreds of millions" of CARES Act funds designated for Tribal governments. It alleges Treasury arbitrarily and capriciously determined that the Tribe had zero members. The motion seeks expedited consideration by October 9, 2020 and refers to a September 14, 2020 order of the D.C. Circuit. An exhibit list and the /s/ signature of George B. Abney close the filing.
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“Expedited Motion, Miccosukee Tribe of Indians of Florida v. U.S. Department of the Treasury, No. 1:20-cv-23182 (S.D. Fla.), Doc. 5 (September 18, 2020).”
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Case 1:20-cv-23182-KMW Document 5 Entered on FLSD Docket 09/18/2020 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
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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.
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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
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$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).
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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.
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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
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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.
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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
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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,
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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,
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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
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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
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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.
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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.
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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).
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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-
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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
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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.
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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
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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
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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
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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
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