Response to motion, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 102 (July 1, 2020)

Summary

Opposition to Plaintiffs' motion to stay judgment pending appeal in Confederated Tribes of the Chehalis Reservation, et al. v. Mnuchin, Case No. 1:20-cv-01002-APM, in the U.S. District Court for the District of Columbia, Document 102, filed July 1, 2020; the caption also lists Case Nos. 1:20-cv-01059-APM and 1:20-cv-01070-APM. The opposition states that, but for these lawsuits, the Calista ANCs would have received CARES Act funds on or before April 26, 2020, and argues that Plaintiffs do not satisfy the four-factor test for an injunction pending appeal. It also argues that the Court has no authority to dictate how expeditiously the Court of Appeals will consider the appeal. It asks the Court to deny Plaintiffs' request for an injunction pending appeal; the signature block names Paul D. Clement, with /s/Paul D. Clement.

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     Case 1:20-cv-01002-APM Document 102 Filed 07/01/20 Page 1 of 6




                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION, et al.

                    Plaintiffs,

      - against -                          Case No. 1:20-cv-01002-APM

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

                    Defendant.


CHEYENNE RIVER SIOUX TRIBE, et al.

                    Plaintiffs,

      - against -                          Case No. 1:20-cv-01059-APM

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

                    Defendant.


UTE TRIBE OF THE UINTAH AND
OURAY RESERVATION,

                    Plaintiff,

      - against -                          Case No. 1:20-cv-01070-APM

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

                    Defendant.



OPPOSITION TO PLAINTIFFS’ MOTION TO STAY JUDGMENT PENDING APPEAL
         Case 1:20-cv-01002-APM Document 102 Filed 07/01/20 Page 2 of 6




       But for these lawsuits, the Calista ANCs (i.e., Intervenor-Defendants Calista Corporation,

Kwethluk, Incorporated, Sea Lion Corporation, St. Mary’s Native Corporation, Napaskiak,

Incorporated, and Akiachak, Limited) would have received critically needed CARES Act funds

back on (or before) April 26, 2020. See 42 U.S.C. §801(b)(1). As the Court has now confirmed,

see generally Mem. Op., Dkt. 97 (“Summ. J. Op.”), Congress made ANCs eligible for those funds,

and Congress underscored that CARES Act funding should be disbursed expeditiously. The

Secretary of the Treasury likewise determined that ANCs were eligible for CARES Act funding

and should have received that funding months ago. See U.S. Dep’t of Treasury, Coronavirus Relief

Fund Payments to Tribal Governments (Apr. 23, 2020). The sole reason that those funds are not

being used by ANCs today to address the serious health and economic consequences of the

pandemic on Alaska Natives is this litigation, filed by plaintiffs who themselves began receiving

CARES Act funding by early May. See Summ. J. Op. 5-7; U.S. Dep’t of Treasury, Coronavirus

Relief Fund Allocations to Tribal Governments (May 5, 2020). Given that this Court has now

rejected plaintiffs’ statutory arguments after full consideration, there is no longer any justification

for perpetuating this inequity.

       Plaintiffs do not satisfy the familiar four-factor test that governs their request for the

extraordinary remedy of an injunction pending appeal. See generally Nken v. Holder, 556 U.S.

418, 434 (2009). Plaintiffs emphasize their irreparable injury if they do not receive an injunction

pending appeal. But plaintiffs have already received substantial amounts of CARES Act funding

and have been able to put that funding to salutary use for nearly two months. ANCs, by contrast,

have not yet received a penny of the funding that Congress, the Secretary, and this Court have all

determined they are entitled to receive. The resulting situation on the ground in Alaska is dire.

Many of the residents in villages served by the Calista ANCs are physically remote and have lost
         Case 1:20-cv-01002-APM Document 102 Filed 07/01/20 Page 3 of 6




their principal supply route and non-emergency mode of medical transport due to a pandemic-

induced bankruptcy. See Andrew Decl. ¶ 4, Dkt. 46-3. While that remoteness provided some

protection from the spread of disease in the initial stage of the pandemic, summer travel creates

new risks while resources and supply chains are stretched thin or broken entirely. See Amicus

Curiae Br. of the Alaska Fed’n of Natives 2-4, 23-25, Dkt. 81. To be sure, federally recognized

tribes in the lower 48 and in Alaska face significant challenges, but—unlike ANCs—they have

already received substantial funds under Title V of the CARES Act, and the ANCs have not filed

suit to stop them from receiving their fair share of CARES Act funds. Thus, the stay equities tip

strongly in favor of the ANCs.

       Moreover, in light of this Court’s summary judgment ruling, the likelihood of success on

appeal similarly favors the ANCs. After a full consideration of the statutory arguments, this

Court’s considered view is that, consistent with the plain text, ANCs are tribes for purposes of

ISDEAA and have “tribal governments” eligible to receive CARES Act funding. See generally

Summ. J. Op. And while this Court’s earlier preliminary injunction rule indicates that this Court

found the statutory issues close and difficult, given that the stay equities plainly favor the ANCs,

close does not count. All the relevant stay factors favor denial of the requested relief.

       In all events, this Court is the wrong court to grant the relief that plaintiffs seek. While this

Court has the power to issue an injunction pending appeal, it has no authority to dictate how

expeditiously the Court of Appeals will consider the appeal. And under the unusual circumstances

of this case, it would be imprudent to order the former without the ability to dictate the latter. As

this Court has acknowledged, “Title V mandates payment of funds for ‘fiscal year 2020,’ which

expires September 30, 2020.” Summ. J. Op. 10 n.6. Once the calendar turns to October, serious

questions arise as to whether the D.C. Circuit or the Supreme Court would have the power to




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compel the Secretary to distribute CARES Act funds to ANCs, even if they both concur with this

Court’s summary judgment ruling. See City of Houston v. Dep’t of Hous. & Urban Dev., 24 F.3d

1421, 1424 (D.C. Cir. 1994). Thus, if this case were briefed, argued, and decided on appeal without

substantial expedition, an injunction pending appeal could convert the ANCs’ recent summary

judgment victory into a total defeat.

       The Court of Appeals is in a position to preclude that perverse outcome by evaluating

plaintiffs’ requested injunctive relief in conjunction with a request for expedition. The two

inquiries are critically interrelated: The quicker the appellate timeline, the shorter the additional

delay in funds reaching ANCs, and the stronger the case for a very brief injunction pending appeal;

conversely, the longer the appellate timeline, the greater the additional delay in funds reaching

Alaska Natives, and the weaker the case for interim relief that could become de facto permanent

despite this Court’s rejection of plaintiffs’ theories. Given that this Court can consider only half

the equation, the better course is to deny the requested relief and allow plaintiffs to renew their

request in the Court of Appeals.

       For the foregoing reasons, and those articulated by the other Intervenor-Defendants and the

Secretary, this Court should deny plaintiffs’ request for an injunction pending appeal.




                                                 3
        Case 1:20-cv-01002-APM Document 102 Filed 07/01/20 Page 5 of 6




                                          Respectfully submitted,

                                          /s/Paul D. Clement
                                          PAUL D. CLEMENT
                                           Counsel of Record
                                          ERIN E. MURPHY
                                          RAGAN NARESH
                                          MATTHEW D. ROWEN
                                          KIRKLAND & ELLIS LLP
                                          1301 Pennsylvania Avenue NW
                                          Washington, DC 20004
                                          (202) 389-5000
                                          paul.clement@kirkland.com

                                          Counsel for Plaintiffs Calista Corp.,
                                          Kwethluk, Inc., Sea Lion Corp.,
                                          St. Mary’s Native Corp., Napaskiak, Inc.,
                                          and Akiachak, Ltd.


July 1, 2020




                                      4
        Case 1:20-cv-01002-APM Document 102 Filed 07/01/20 Page 6 of 6




                                CERTIFICATE OF SERVICE

       I hereby certify that on this 1st day of July 2020, I electronically filed the foregoing with

the Clerk of the Court for the United States District Court for the District of Columbia using the

CM/ECF system.

                                                             /s/ Paul D. Clement


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