Miscellaneous Relief, Shawnee Tribe v. Mnuchin (later v. Yellen), No. 1:20-cv-01999 (D.D.C.), Doc. 68 (March 30, 2021)

Summary

Plaintiff The Shawnee Tribe moves for leave to amend its Verified Complaint for Injunctive and Declaratory Relief against the United States Department of the Treasury, No. 1:20-cv-01999-APM. It seeks to add allegations supporting a claim that Defendants failed to take action and to add a claim for injunctive relief compelling specific performance, namely disbursement of funds owed under the CARES Act, which it describes as unlawfully withheld and/or unreasonably delayed. The motion argues the case is in its early stages, that Defendants have not filed an answer and do not intend to, and that Defendants were on notice of the new allegations from the February 17, 2021 and February 25, 2021 status conferences. The certificate of filing and service bears the /s/ of Dawn McCombs.

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“Miscellaneous Relief, Shawnee Tribe v. Mnuchin (later v. Yellen), No. 1:20-cv-01999 (D.D.C.), Doc. 68 (March 30, 2021).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/miscellaneous-relief-shawnee-tribe-v-mnuchin-later-v-yellen-no-1-20-cv-bf62f2b50f/, SHA-256 5677d140dfcc1e3ae82809528b4af6e5c4755b0023f903021da830f2807ead47.

Full text

Case 1:20-cv-01999-APM Document 68 Filed 03/30/21 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA

THE SHAWNEE TRIBE,

Plaintiff,

v.
Case No. 1:20-cv-01999-APM
UNITED STATES DEPARTMENT OF THE
TREASURY, et al.

Defendants.

THE MICCOSUKEE TRIBE OF INDIANS OF
FLORIDA,

Plaintiffs,
Case No. 1:20-cv-02792-APM
v.

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

Defendants.

PRAIRIE BAND POTAWATOMI NATION,

Plaintiff,

v. Case No. 1:21-cv-012-APM

STEVEN T. MNUCHIN, in his official capacity
as SECRETARY, U.S. DEPARTMENT OF
TREASURY

Defendant.

PLAINTIFF THE SHAWNEE TRIBE’S
MOTION FOR LEAVE TO AMEND VERIFIED COMPLAINT

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Pursuant to Federal Rules of Civil Procedure 15(a)(2), the Shawnee Tribe moves the Court

for leave to amend its Verified Complaint for Injunctive and Declaratory Relief to (1) add an

additional allegations supporting a claim that Defendants have failed to take action within the

meaning of 5 U.S.C. § 551(13) because it did not issue a “grant of money” within the meaning of

5 U.S.C. § (11)(A); and (2) add a claim for relief for injunctive relief compelling specific

performance against Defendants to disburse funds owed under the CARES Act to the Shawnee

Tribe pursuant to 5 U.S.C. § 706(1), which are currently unlawfully withheld and/or unreasonably

delayed. A copy of the Shawnee Tribe’s proposed First Amended Verified Complaint is attached

to this Motion as Exhibit A. This Motion is filed in good faith and for just cause as follows:

Pursuant to Federal Rules of Civil Procedure 15(a)(2), the Shawnee Tribe may amend its

pleading with the court’s leave, which should be freely given. Federal law is clear that Rule

15(a)(2)’s provision that leave should be freely given is a “mandate [that] is to be heeded.” Foman

v. Davis, 371 U.S. 178, 182 (1962) (citing 3 James William Moore, Federal Practice §§ 15.08,

15.10 (2d. ed.1948)). Only in exceptional circumstances should leave be denied, such as when the

nonmoving party lacks notice, or the motion is brought in bad faith, for dilatory purposes, results

in undue delay or prejudice to the opposing party, or would be futile. Id. at 182. This is true because

Rule 15 reinforces the principal that cases “should be tried on their merits.” Tefft v. Seward, 689

F.2d 637, 639 (6th Cir. 1982) (affirming district court’s grant of leave to amend answer to assert

estoppel defense and subsequent entry of summary judgment in favor of defendant on that defense,

even though leave was granted after plaintiff’s response to defendant’s dispositive motion).

None of the impediments to amendment are present in this case; thus, the Shawnee Tribe

should be granted leave to amend its Verified Complaint. First, this case is in its early stages and

leave to amend now will not delay this case. Specifically, Defendants have not filed an answer and

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they do not intend to do so,1 and it produced its administrative record less than three weeks ago.

Dispositive motion briefing on the merits in this case has not yet begun. Thus, permitting leave

now to add the allegations and claim for relief in Exhibit A will not require amendment of other

documents or materially alter the course of this case.

Regardless, delay alone is an insufficient reason to deny leave to amend absent a showing

the non-moving party would be prejudiced by it. Caribbean Broad. Sys., Ltd. v. Cable & Wireless

PLC, 148 F.3d 1080, 1084 (D.C.Cir.1998). Defendants cannot genuinely assert leave to amend

now would unduly prejudice them where they have continuously sought to stay this case, and they

were already on notice of the newly added allegations and claim for relief. For instance, during the

February 17, 2021 Status Conference, Defendants sought a stay of the entire case so that it may

develop a new methodology because “this case really is about what we do with the remaining

funds.” (See Tr. dated February 17, 2021, attached hereto as Exhibit B, lines 5:23-6:3). At that

time, Plaintiffs raised both the issues with respect to the Defendants unreasonable delay in

disbursing funds, that time was of the “essence,” and asserted that the Court may order Treasury

to disburse funds owed under the CARES Act to the Shawnee Tribe pursuant to 5 U.S.C. § 706(1),

which relevant law holds is a proper form of equitable relief thereunder. (Id., lines 12:16-13:3,

26:18-27:8, 30:10-31:22). And, on February 25, 2021, Defendants requested to stay answer

deadlines, to which the parties agreed, and argued again to stay dispositive motion briefing to

provide them time to devise a new methodology. (See Tr. dated February 25, 2021, attached hereto

as Exhibit C, lines 10:20-25, 37:4-12). The Shawnee Tribe reiterated that time was of the essence

and, shortly thereafter, Defendants filed a Status Report with the Court “recogniz[ing] Plaintiffs’

1
The parties stipulated during the February 25, 2021, Status Conference that Defendants did not
need to file a formal answer to the Verified Complaint. (See Tr. dated February 25, 2021, lines
37:4-12).
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concerns about the need for prompt payments.” (Dkt. 62, p. 1). Thus, Defendants have been on

noticed of the changes included in the First Amended Verified Complaint since February (if not

earlier) and, in the unlikely event the amendment would cause any delays, Defendants would be

benefitted – not prejudiced – by it.

Nor is the amendment for which the Shawnee Tribe seeks leave futile. As documented

above, a key contention in this case is whether Defendants can be ordered, as a remedy under the

Administrative Procedures Act, to disburse funds owed under the CARES Act as a form of

equitable relief. It can, and such allegations and claim for relief is therefore central to this case and

any subsequent dispositive motion briefing in it.

Finally, the Shawnee Tribe has not exhibited any bad faith in seeking leave to amend, nor

has it repeatedly failed to cure deficiencies in prior amendments. In fact, if granted, this would be

the Shawnee Tribe’s first amendment to its Verified Complaint.

For all the foregoing reasons, the Shawnee Tribe respectfully requests this Court grant it

leave to amend the Verified Complaint as amended in Exhibit A. The Shawnee Tribe certifies that

it has consulted with Defendants and they oppose this Motion.

Respectfully submitted this 30th day of March, 2021.

Respectfully submitted,

/s/ Pilar M. Thomas
Luke Cass
(D.C. Bar 491706)
Quarles & Brady LLP
1701 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20006
Phone: (202) 372-9514

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Pilar M. Thomas
(Admitted Pro Hac Vice)
QUARLES & BRADY LLP
One South Church Avenue, Suite 1800
Tucson, Arizona 85746

Nicole L. Simmons
(Admitted Pro Hac Vice)
QUARLES & BRADY LLP
One Renaissance Square
Two North Central Avenue
Phoenix, Arizona 85004-2391

Attorneys for Plaintiff

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CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that on the 30th of March, 2021, the foregoing document
was filed with the Court using the CM/ECF system and served which provided service to all parties
through their attorney of record.

/s/ Dawn McCombs

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