Renewed Motion for Preliminary Injunction — Agua Caliente Band v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 37

Summary

Plaintiffs' Renewed Motion for Preliminary Injunction, Document 37, filed June 5, 2020, in Agua Caliente Band of Cahuilla Indians, et al. v. Steven Mnuchin, Case No. 1:20-cv-01136, in the United States District Court for the District of Columbia. The plaintiff tribes ask the court to direct the Treasury Secretary to disburse all pandemic relief funding appropriated for tribal governments under Title V of the CARES Act. The motion states that the Defendant offered June 12, 2020, 77 days after passage of the CARES Act, as a tentative distribution date, against a 30-day timeframe it says Congress mandated. It asks for an injunction requiring disbursement by June 12th, requests oral argument, and is signed /s/ Keith M. Harper.

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“Renewed Motion for Preliminary Injunction — Agua Caliente Band v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 37.” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/preliminary-injunction-agua-caliente-band-of-cahuilla-indians-et-al-v-9ac23901ae/, SHA-256 e810c701ad8b7acef8d11686f34e42fa468560a2cdbf15be48a58163bdef7ef7.

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Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AGUA CALIENTE BAND OF CAHUILLA
INDIANS, et al.,

Plaintiff,

v. Case No. 1:20-cv-01136

STEVEN MNUCHIN, in his official capacity as
Secretary of Treasury,

Defendant.

PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION

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 the Yurok Tribe of the Yurok Reservation

(Plaintiffs or Plaintiff Tribes) hereby renew their motion for a preliminary injunction directing the

Defendant, Treasury Secretary Steven Mnuchin (the Secretary), to immediately 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. No. 116-136, 134 Stat. 281 (2020) (hereinafter “Title V funds”). Defendant’s continuing,

unreasonable delay in performing his clear duty has caused, and continues to cause each day,

irreparable harm to Plaintiffs that can only be remedied by the immediate entry of the requested

relief.

Now having taken over twice as long as the time mandated by Congress to distribute all of

the Title V funds, and having already postponed his proffered distribution date on more than one

occasion, Defendant is again attempting to move the goalposts, offering June 12, 2020—77 days
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 2 of 7

after the passage of the CARES Act—as a tentative distribution date for the remaining Title V

funds. Importantly, this date itself is only a “plan;” Defendant has intentionally refrained from

making any firm commitment.1,2 Because Defendant has made clear that the distribution will be

further and unreasonably delayed, and still refuses to commit to a definite distribution date,

Plaintiff Tribes have no choice but to renew their motion for an injunction to respectfully ask this

Court to mandate distribution by an immediate and definitive date.3

ARGUMENT

The tentative date offered by Defendant for distribution of the remaining Title V funds will

constitute a delay of 77 days—over two and a half times the 30-day timeframe mandated by

Congress in the CARES Act. This Court made clear that if Defendant was on the “verge on

doubling the time Congress mandated to fully disburse Title V funds to Tribal governments” then

Defendant’s inaction could amount to sufficient “egregiousness” to warrant injunctive relief. See

ECF No. 19 at 15. This Court has also made clear it understands the harms Plaintiffs are suffering

1
Defendant appears to blame Tribes for the delays in making the distribution. See, e.g., ECF No.
35 at 4. The reality, however, is that Defendant’s incompetence and abysmal data submission
system is the root cause of the delay, as demonstrated in the attached declaration. See Declaration
of Tralynna Scott. First, the portal through which Defendant required Tribes to submit information
was inaccessible and required numerous attempts over days to finally access. See id. at ¶ 5–6.
Second, the portal was hopelessly dysfunctional and, inter alia, required Tribes to chop up their
submissions into small increments in order to navigate the portal’s small file size limits. See
id. Third, when Defendant sought additional information because information was allegedly not
correct or incomplete, he failed to explain what was incomplete and incorrect. See id. at ¶ 1–2; see
also Exhibit 1. All Tribal Plaintiffs attempted to diligently comply with Defendant’s request for
additional information and their efforts were frustrated by Defendant and Defendant’s
dysfunctional system.
2
Defendant appears to be attempting to characterize distribution of the Title V funds as an
application process, consistently using terms like “application,” “applicant,” and “eligibility.” See,
e.g., Exhibit 1. Nowhere in the CARES Act does Congress refer to Tribal governments being
subject to an application process in order to receive the Title V funds.
3
Consistent with the instructions of the Court, Plaintiff Tribes will not restate the facts and
governing law of this matter as this Court is already familiar with both.
2
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 3 of 7

due to Defendant’s inaction in the context of the ongoing public health crisis.4 Given the

emergency nature of the CARES Act, the fact that the present delay is within the range in which

this District has found to be unreasonable, and that Defendant still refuses to commit to a definitive

distribution date, Defendant’s delay in performing his statutory duty is sufficiently egregious as to

warrant injunctive relief.

The Court’s analysis in Afghan & Iraqi Allies Under Serious Threat Because of Their

Faithful Service to the United States v. Pompeo (“Afghan & Iraqi Allies) 2019 WL 4575565

(D.D.C. Sept. 20, 2019), reconsideration denied, No. 18-CV-01388 (TSC), 2020 WL 587878

(D.D.C. Feb. 5, 2020) is instructive. That case involved a class of Afghan and Iraqi nationals that

had worked for the United States, at grave risks to life and limb, who sought refuge in the United

States and sued the Department of State requesting, inter alia, to have the agency’s delay in

processing and adjudicating their Special Immigrant Visa (“SIV”) applications declared

unreasonable. Id. at *1. The plaintiffs had submitted their SIV applications pursuant to federal

statutes which provided for a nine-month timeframe for the Secretary of State to complete all steps

incidental to issuing such visas, yet the plaintiffs had been waiting for between 18 and 52 months.

Id. at *1–2. Finding that the nine-month benchmark provided a “rule of reason,” noting that

“complexity alone does not justify extensive delay,” and taking into account that the defendants

had not offered a definite timeframe for when they expected to adjudicate the plaintiffs’

applications, the court found the agency’s delay to be unreasonable and granted the plaintiffs

injunctive relief. Id. at *7–8, *11 (internal citations omitted)); see also Muwekma Tribe v. Babbitt,

4
See, e.g., ECF No. 19 at 13 (“Without full funding, Tribes will be forced to curtail essential
government services and lay off or furlough employees. The financial strain is taking a toll, and,
as one affiant explains, “reduc[ing] and curtail[ing] essential government services put[s] the health
and safety of tribal members at substantial risk.”) (internal citations to record omitted) (alterations
in original).
3
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 4 of 7

133 F. Supp. 2d 30, 37, 41 (D.D.C. 2000) (finding unreasonable delay where “defendants’ refusal

to provide the plaintiff with a definite time frame for review of its petition [did] not enable the

court to evaluate any prospect of completion” and granting injunctive relief).

Similarly, in Ensco Offshore Co. v. Salazar, 781 F. Supp. 2d 332, 339–40 (E.D. La. 2011),

a district court used the D.C. Circuit analytical framework enunciated in Telecommunications

Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (TRAC) to hold that a four

month delay from the time of filing a permit was sufficient to warrant judicial intervention, even

though there was no express and directly applicable statutory deadline and health and welfare were

not at stake. See also ECF No. 29 at 7–8 (applying TRAC analysis to this dispute and noting that

the parties are in agreement that TRAC analysis is the governing standard).

Here, Defendant’s delay is similarly egregious. Understanding the emergency nature of the

pandemic crisis and the Plaintiffs’ need for immediate funds, Congress commanded Treasury to

distribute the Title V funds in 30 days. Now, moving the goalposts once again, Defendant proposes

more than two and a half times the amount mandated by Congress and, similar to Afghan & Iraqi

Allies, he refuses to commit to acting even by that egregiously delayed date. More egregious still,

the Defendant’s nonchalant approach is in stark contradistinction with congressional intent. As

the DC Circuit has explained repeatedly, “the reasonableness of the delay must be judged in the

context of the statute which authorizes the agency’s action.” Pub. Citizen Health Research Grp. v.

Comm'r, Food & Drug Admin., 740 F.2d 21, 34 (D.C. Cir. 1984). Though the plaintiffs in Afghan

& Iraqi Allies were also facing harms to health and welfare, the statute at issue was programmatic.

The context here is emergency legislation of an unprecedented nature mandating a one-time relief

payment. A fortiori, Defendant’s continued delay in performing his duty in the context of an

extraordinary public health emergency is egregious and warrants injunctive relief.

4
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 5 of 7

CONCLUSION

In continuing to delay in distributing all of the Title V funds for over two and a half times

the amount of time allotted by Congress, the Defendant has egregiously and unreasonably delayed

the performance of his duty in violation of Congress’s explicit mandate and to the extreme

detriment of Plaintiffs and other Tribal governments. Defendant’s irresponsibility has real costs.

Because of this delay, certain Plaintiff Tribes now have curtailed essential services and must make

additional layoffs. Indeed, the threat to the health and welfare of Plaintiffs’ Tribal members in this

ongoing health crisis is only compounding. And the longer Defendant delays in distributing all of

the Title V funds, the greater the harm incurred by Plaintiffs will be. This is especially true since

Plaintiff Tribes must expend any CARES Act funds by the end of the year. The delay must end.

Plaintiff Tribes respectfully suggest that the Court can and should enter an injunction directing

Defendant to disburse all of the desperately needed Title V funds to Plaintiffs by an immediate

and definitive date, June 12th.

ORAL ARGUMENT REQUESTED

Respectfully submitted June 5, 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
5
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 6 of 7

1420 Fifth Avenue, Suite 3700
Seattle, Washington 98101
Tel: (206) 467-9600
Fax: (206) 623-6793

Attorneys for Plaintiffs

6
Case 1:20-cv-01136-APM Document 37 Filed 06/05/20 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on this fifth day of June, 2020, I electronically filed the forgoing
Plaintiffs’ Renewed Motion for Preliminary Injunction (Plaintiffs’ Renewed Motion) with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to all
registered CM/ECF users.

/s/ Keith M. Harper
Keith M. Harper

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