Joint Response to Notice in Response to January 21, 2021 Minute Order — Shawnee Tribe v. Treasury (D.D.C.)

Summary

The Miccosukee Tribe's and Prairie Band's Joint Response to Defendants' Notice in Response to January 21, 2021 Minute Order, filed February 3, 2021 as Document 59 in Shawnee Tribe v. United States Department of Treasury, et al., Case No. 1:20-cv-01999-APM, with the captions Miccosukee Tribe of Indians of Florida (No. 1:20-cv-02792-APM) and Prairie Band Potawatomi Nation (No. 1:21-cv-012-APM), in the United States District Court, District of Columbia. The response argues that Treasury has conceded several times that disbursing CARES Act funds before the litigation concludes would irreparably harm Plaintiffs, and that voluntary, temporary inaction cannot moot a request for a preliminary injunction. It objects to Treasury's proposed notice remedy and asks the Court to grant the preliminary injunction motions.

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“Joint Response to Notice in Response to January 21, 2021 Minute Order — Shawnee Tribe v. Treasury (D.D.C.).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-other-shawnee-tribe-v-mnuchin-later-v-yellen-no-1-20-cv-01999-d-7c3d3bf943/, SHA-256 1ef84a9987f16f985c6b33d1de1a70f79443bbcfdba2cf4a60f15839594dc715.

Full text

Case 1:20-cv-01999-APM Document 59 Filed 02/03/21 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 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.

MICCOSUKEE TRIBE’S AND PRAIRIE BAND’S JOINT RESPONSE
TO DEFENDANTS’ NOTICE IN RESPONSE TO JANUARY 21, 2021 MINUTE ORDER
Case 1:20-cv-01999-APM Document 59 Filed 02/03/21 Page 2 of 5

On January 28, 2021, this Court issued a minute order requesting that Plaintiffs the

Miccosukee Tribe and Prairie Band respond to Defendants’ notice relating to “their position on

the pending motions for preliminary injunction in Miccosukee Tribe of Indians of Florida v. U.S.

Department of Treasury, 20-cv-2792, and Prairie Band Potawatomi Nation v. Mnuchin, 21-cv-

12.” In that notice, Treasury agreed to provide Plaintiffs “fourteen (14) days’ notice before

disbursing the funds remaining from the appropriation identified in 42 U.S.C. § 801(a)(2)(B),

should Treasury elect to disburse these funds prior to the Supreme Court’s resolution of Chehalis.”

ECF No. 57. Treasury represented that it “has no plan to disburse the relevant funds prior to a

resolution in Chehalis” and its fourteen-day notice period will “eliminate any need for Plaintiffs’

requested preliminary injunction, as they are under no threat of irreparable harm from such

distribution.” Id.

Treasury has conceded several times that disbursing CARES Act funds before the

conclusion of this litigation would irreparably harm Plaintiffs. See Miccosukee Tribe of Indians of

Florida v. United States Department of Treasury, et al., No. 1:20-cv-02792, ECF No. 17, at 19

(D.D.C. Sept. 25, 2020) (conceding that the Miccosukee Tribe would face irreparable harm absent

an injunction and instead arguing that the Tribe’s motion was late); Shawnee Tribe v. Mnuchin et

al., 20-5286, ECF No. 1876449 at 8, n. 4 (D.C.C. 2020) (“Because the full disbursement of the

Funds would moot the Tribe’s suit, the government does not contest that the Tribe would suffer

irreparable injury if this occurred before its claim is finally resolved.”).

Treasury’s promise to give additional notice to the Plaintiff Tribes at some indeterminate

time in the future does not eliminate the irreparable injury to them. A Defendant’s voluntary,

temporary inaction cannot moot a plaintiff’s request for a preliminary injunction. Cf. City of Los

Angeles v. Lyons, 461 U.S. 95, 100 (1983) (noting that Los Angeles could not dissolve a
Case 1:20-cv-01999-APM Document 59 Filed 02/03/21 Page 3 of 5

preliminary injunction as moot through passing a six-month moratorium on the challenged

behavior because “the moratorium, by its terms is not permanent”); Goings v. Court Servs. &

Offender Supervision Agency, 786 F. Supp. 2d 48, 61 (D.D.C. 2011) (granting in part plaintiff’s

motion for a preliminary injunction challenging plaintiff’s offender supervision conditions despite

a federal agency’s attempts to modify or drop the challenged conditions because “the Court is

authorized to adjudicate the plaintiff’s claims because the defendant’s subsequent modification of

the conditions amounts to a voluntary cessation.”); Singh v. Carter, 185 F. Supp. 3d 11, 19–20

(D.D.C. 2016) (holding that “voluntary cessation of challenged conduct” does not moot a

preliminary injunction where plaintiff can show “irreparable harm without preliminary relief.”);

Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) (holding that an INS oral directive was a

voluntary cessation because “the current INS policy, absent the injunction, is merely oral and

absolutely subject to withdrawal at the discretion of the Service’s District Director”).

Under Treasury’s proposal, even with fourteen-days’ notice, Miccosukee and Prairie Band

would need to reassert their motions for a preliminary injunction again. The question is not if they

will need to reassert their motions, but when. There is no valid reason for requiring Miccosukee

and Prairie Band to jump though this hoop again months from now when Treasury has already

conceded irreparable harm. Indeed, this Court recognized in the most recent conference that

CARES Act funds were intended to provide immediate emergency relief. And the Court of

Appeals felt so strongly about the need for an injunction that it ordered that Shawnee’s motion be

granted promptly upon remand. There is no principled reason for treating Miccosukee or Prairie

Band differently. “It is the duty of the courts to beware of efforts to defeat injunctive relief by

protestations of repentance and reform, especially when abandonment seems timed to anticipate

2
Case 1:20-cv-01999-APM Document 59 Filed 02/03/21 Page 4 of 5

suit, and there is probability of resumption.” United States v. Or. State Med. Soc’y, 343 U.S. 326,

333 (1952).

Absent an injunction, Plaintiffs’ contested CARES Act funds are unprotected. The only

backstop would be a non-binding promise from Treasury. Even if another court had entered a

preliminary injunction legally barring Treasury’s payout of the funds, this Court would be well

within its authority to enter its own preliminary injunction addressing the same irreparable harm.

See Ass’n of Cmty. Cancer Ctrs. v. Azar, No. 20-cv-3531, 2020 U.S. Dist. LEXIS 241732 (D. Md.

Dec. 23, 2020) (granting Plaintiffs’ motion for a nationwide TRO challenging an HHS regulation);

Cal. Life Scis. Ass’n v. Ctr. for Medicare & Medicaid Servs., No. 20-cv-08603, 2020 U.S. Dist.

LEXIS 242991 (N.D. Cal. Dec. 28, 2020) (granting Plaintiffs’ motion for a preliminary injunction

and issuing a separate (second) injunction against the same HHS regulation while incorporating

the District of Maryland’s opinion); Regeneron Pharm., Inc. v. United States HHS, No. 20-cv-

10488, 2020 U.S. Dist. LEXIS 245158 (S.D.N.Y. Dec. 30, 2020) (issuing a third injunction against

the same HHS regulation). While the Supreme Court will hear Chehalis (which concerns the same

remaining Title V Funds) no court currently protects the Plaintiffs’ interests in their contested

shares.

Finally, Treasury’s proposal implicitly assumes that this case should be stayed pending the

Supreme Court’s review in Chehalis. As previously articulated, this is unjustified. The pending

motions should be decided, the administrative record should be filed, and the case should proceed

to a determination on the merits without further delay.

For these reasons, the undersigned Plaintiffs object to Treasury’s proposed notice remedy

and requests that this Court grant their motions for a preliminary injunction.

3
Case 1:20-cv-01999-APM Document 59 Filed 02/03/21 Page 5 of 5

Dated: February 3, 2021 Respectfully submitted,

/s/ Daniel G. Jarcho

Daniel G. Jarcho (D.C. Bar # 391837)
George B. Abney
Daniel F. Diffley
Jean E. Richmann
ALSTON & BIRD LLP
The Atlantic Building
950 F Street, N.W.
Washington, D.C. 20004
Phone: (202) 239-3300
Fax: (202) 239-3333
daniel.jarcho@alston.com

Counsel for Miccosukee Tribe of Indians of
Florida

LIPPES MATHIAS WEXLER
FRIEDMAN LLP

Carol E. Heckman
James P. Blenk
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202
Tel: (716) 853-5100
Fax: (716) 853-5199
Email: checkman@lippes.com
jblenk@lippes.com

-and-

Michael G. Rossetti (D.C. Bar No. 477122)
1900 K Street, NW, Suite 730
Washington, DC 20006
Tel: (202) 888-7610
Email: mrossetti@lippes.com

Counsel for Plaintiff Prairie Band
Potawatomi Nation

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