Memorandum, Prairie Band Potawatomi Nation v. Mnuchin, No. 1:20-cv-01491 (D.D.C.), Doc. 20 (June 11, 2020)

Summary

Statement of Amici Curiae Plaintiff Tribes in response to the Court's June 11, 2020 hearing, filed as Document 20 in Prairie Band Potawatomi Nation v. Mnuchin, Case No. 1:20-cv-01491, in the District of Columbia. It states that counsel for Defendant Steven Mnuchin indicated the Secretary plans to withhold 24% of the remaining 40% of CARES Act funding. The Tribes argue the government has no rational basis for the withholding, and say the amount in dispute is $7.65 million, and ask the Court to order Treasury to distribute all funds except those cabined off for the Chehalis matter and the $7.65 million in dispute. The signature block shows /s/ Keith M. Harper.

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“Memorandum, Prairie Band Potawatomi Nation v. Mnuchin, No. 1:20-cv-01491 (D.D.C.), Doc. 20 (June 11, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/memorandum-prairie-band-potawatomi-nation-v-mnuchin-no-1-20-cv-01491-d-e65d95afb3/, SHA-256 9b0bcfd4035d6e42c35eaf2aedfc81998d220ac43ad11c77afc4996797705810.

Full text

Case 1:20-cv-01491-APM Document 20 Filed 06/11/20 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.

STATEMENT OF AMICI CURIAE PLAINTIFF TRIBES IN RESPONSE TO COURT’S
JUNE 11, 2020 HEARING 1

Earlier today, the Court ordered the Parties and Amici Curiae Plaintiff Tribes to discuss

the remaining distribution of Title V funds of the Coronavirus Aid, Relief, and Economic Security

Act (“CARES Act”). Counsel for Defendant Steven Mnuchin, Secretary of the Department of

Treasury, has indicated that, in light of Plaintiff Prairie Band Potawatomi Nation’s request for

injunctive relief, the Secretary plans to withhold 24% of the remaining 40% of CARES Act funding

that he is statutorily required to distribute to Amicus Curiae Plaintiff Tribes and other similarly

situated tribal governments. He claims that a larger withholding is necessary to cover any

additional claims of the same nature that could increase the Secretary’s liability.

Defendant’s proposal is unacceptable. The government has no rational basis to withhold

24% of the $3.2 billion pool of CARES Act funds. The amount in dispute is $7.65 million.

Government counsel in today’s argument was provided an opportunity to be heard as to why the

Defendant would withhold more and thereby exacerbate the already egregious delay. He was

1
Counsel conferred and neither the Plaintiff nor Defendant object to the Amicus Curiae Plaintiff
Tribes filing this statement.
Case 1:20-cv-01491-APM Document 20 Filed 06/11/20 Page 2 of 4

unable to provide any rational basis whatsoever. And to be sure, once the funds are distributed,

there is no cognizable suit for injunctive relief in this Court. The sole possible lawsuit against the

United States would be in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1505,

for money damages. To prevail in such a suit, it is settled law that any plaintiff tribe would have

to identify a “money-mandating” statute entitling plaintiff to relief. See United States v. Navajo

Nation, 556 U.S. 287, 290-91 (2009) (to invoke jurisdiction under the Indian Tucker Act, “the tribe

must identify a substantive source of law that establishes specific fiduciary or other duties” and a

“relevant source of substantive law [that] can fairly be interpreted as mandating compensation for

damages sustained as a result of a breach of the duties the governing law imposes”) (citations

omitted); United States v. Mitchell, 463 U.S. 206, 218 (1983) (“a court must inquire whether the

source of substantive law can fairly be interpreted as mandating compensation by the Federal

Government for the damages sustained”). Government counsel has not identified a statute that

could plausibly be the basis of such liability here. Indeed, there is not one. Given the absence of a

money-mandating duty in the CARES Act and the Secretary’s broad discretion in the allocation of

the CARES Act funds, the Secretary would have no reasonable exposure. Therefore, any delay in

distributing these specific funds is wholly unjustified and would only exacerbate the already

egregious nature of the delay.

WHEREFORE, Plaintiff Tribes respectfully request that this Court order Treasury to

distribute all funds except for those cabined off for the Chehalis matter and the $7.65 million in

dispute here.

Respectfully submitted June 11, 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

2
Case 1:20-cv-01491-APM Document 20 Filed 06/11/20 Page 3 of 4

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 Plaintiffs

CERTIFICATE OF SERVICE
3
Case 1:20-cv-01491-APM Document 20 Filed 06/11/20 Page 4 of 4

I hereby certify that on June 11, 2020, I electronically filed the foregoing with the Clerk of

the Court for the United States District Court for the District of Columbia by using the CM/ECF

system, which will send notification of such filing to all counsel of record.

/s/ Keith M. Harper
Keith M. Harper, DC Bar No. 451956

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