Response to Prairie Band Motion to Modify the Preliminary Injunction — Prairie Band Potawatomi Nation v.

Summary

Defendants' response to Prairie Band's motion to modify the preliminary injunction in Prairie Band Potawatomi Nation v. Yellen, Case No. 21-cv-012, in the U.S. District Court for the District of Columbia, dated June 1, 2021. The response states that Plaintiff seeks to modify its preliminary injunction and require Treasury to hold back $11,680,105, and argues that Prairie Band has not shown that it is likely entitled to that amount or any other amount. It states that Treasury is not moving to dissolve Prairie Band's earlier preliminary injunction and is fully complying with the Court's preliminary injunctions. The signature block names Kuntal Cholera, with /s/ Kuntal Cholera.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

         Case 1:20-cv-01999-APM Document 85 Filed 06/01/21 Page 1 of 5




                            UNITED STATES DISTRICT COURT
                                DISTRICT OF COLUMBIA

 Prairie Band Potawatomi Nation,

                        Plaintiff,

        v.
                                                               Case No. 21-cv-012
 Janet Yellen, in her official capacity as
 Secretary of the Treasury, et al.,

                        Defendants.

                            RESPONSE TO PRAIRIE BAND’S MOTION
                           TO MODIFY THE PRELIMINARY INJUNCTION

       The Plaintiff Prairie Band Potawatomi Nation seeks to modify its preliminary injunction—

and require Treasury to hold back $11,680,105—on grounds that the Court has already rejected:

that Prairie Band is somehow entitled to a particular sum, or to a payment pursuant to a particular

methodology, under the relevant statute. However, even assuming Prairie Band can show that it

was likely to prevail on its claim that Treasury’s original allocation methodology was unlawful, it

has failed to show that it is likely entitled to $11,680,105 (or any other amount) as a result. The

Court should thus deny Prairie Band’s motion to modify its preliminary injunction.

       First, Prairie Band cannot show that it is likely entitled to any additional payment, much

less a payment for the amount they seek. In denying the Plaintiffs’ most recent preliminary

injunction motion, the Court noted that “[u]nder settled principles of administrative law, when a

court reviewing agency action determines that an agency made an error of law, the court’s inquiry

is at an end: the case must be remanded to the agency for further action consistent with the

corrected legal standards.” PI Order II, at 4 (quoting PPG Indus., Inc. v. United States, 52 F.3d

363, 365 (D.C. Cir. 1995)). The Court further stated that “the court’s authority to issue a detailed

remedial order applies only to discrete action that is legally required . . . about which an official
                                                 1
         Case 1:20-cv-01999-APM Document 85 Filed 06/01/21 Page 2 of 5




had no discretion whatever,” and that although the “statutory provision” at issue here places some

limitations on Treasury, it still “leaves [Treasury] . . . discretion in deciding” which methodology

to adopt. Id., at 4-6 (internal quotation marks omitted).

       Accordingly, even assuming Prairie Band was likely to show that Treasury’s original

methodology was arbitrary and capricious, it could at most secure an order requiring Treasury to

do what it has done already: adopt a revised methodology. Prairie Band, however, is not entitled

to an affirmative order requiring Treasury to adopt any particular methodology, much less the

methodology Prairie Band used to calculate the amount it now wants Treasury to hold back.1

Indeed, Prairie Band fails to show that it is likely to be entitled to any additional payment. It may

be possible, for example, that Treasury could have adopted a lawful methodology under which

Prairie Band would have received an amount equal to (or less than) what it has already received.

Thus, there is no basis for Prairie Band’s modified preliminary injunction.

       Prairie Band relies heavily on the D.C. Circuit’s decision in Shawnee, along with this

Court’s April 26, 2021 preliminary injunction in favor of Prairie Band. With respect to Shawnee,

although the D.C. Circuit found that the plaintiff was entitled to a preliminary injunction requiring

Treasury to hold back a certain amount, Treasury had not raised the argument that it raises here:

even if the original methodology was arbitrary and capricious, that does not mean the plaintiff

would necessarily be entitled to an additional payment. See Brief for Appellees, Shawnee v.

Mnuchin, No. 20-5286, Doc. 1868194 (D.C. Cir. Oct. 26, 2020). Thus, the D.C. Circuit had no

occasion to address that argument, much less resolve it. The same applies to the Court’s April 26,



1
  Prairie Band appears to calculate the amount it now wants Treasury to hold back by using a
modified version of the original methodology whereby Treasury uses Indian Housing Block Grant
(“IHBG”) program data for every Tribe, except it uses certified enrollment data for Prairie Band
alone. See PI Modification Mot., at 8. But there is no basis for insisting that Treasury was obligated
to adopt this methodology.
                                                  2
         Case 1:20-cv-01999-APM Document 85 Filed 06/01/21 Page 3 of 5




2021 decision to grant Prairie Band’s earlier preliminary injunction motion. Treasury did not

oppose that motion based on the arguments raised here. Thus, the Court only now has a reason to

resolve whether its decision denying Plaintiffs’ most recent preliminary injunction motion

forecloses Prairie Band’s request for modified preliminary relief here.

       The Court should therefore deny Prairie Band’s motion to modify its preliminary

injunction. However, to be clear, Treasury—for now—is not moving the Court to dissolve Prairie

Band’s earlier preliminary injunction. Treasury argues only that the Court should not modify that

preliminary injunction in the manner requested by Plaintiff.

       Second, Prairie Band’s request for an order “direct[ing] Treasury to specifically designate

and set aside the enjoined funds for the purpose of satisfying a judgment to Prairie Band” (Mot. at

9) is unnecessary. Treasury is fully complying with this Court’s preliminary injunctions, and never

told Prairie Band otherwise. Specifically, Treasury has ensured, and will continue to ensure, that

of the remaining, relevant funds identified in 42 U.S.C. § 801(a)(2)(B), Treasury will hold back

the amount required under this Court’s preliminary injunctions in this case, and the related cases,

so long as those injunctions remain in place. No further relief is necessary or justified. See People

for the Ethical Treatment of Animals v. United States Dep’t of Agric. & Animal & Plant Health

Inspection Serv., 918 F.3d 151, 157 (D.C. Cir. 2019) (A ‘presumption of regularity supports the

official acts of public officers and, in the absence of clear evidence to the contrary, courts presume

that they have properly discharged their official duties.’”).


Dated: June 1, 2021                                   Respectfully submitted,


                                                      BRIAN BOYNTON
                                                      Acting Assistant Attorney General

                                                      ERIC WOMACK
                                                      Assistant Branch Director

                                                  3
Case 1:20-cv-01999-APM Document 85 Filed 06/01/21 Page 4 of 5




                                  /s/ Kuntal Cholera
                                  Kuntal V. Cholera
                                  Jason C. Lynch
                                  Trial Attorney
                                  United States Department of Justice
                                  Civil Division, Federal Programs Branch
                                  1100 L Street NW, Rm. 11214
                                  Washington, DC 20005
                                  Tel: (202) 514-1359
                                  Email: kuntal.cholera@usdoj.gov

                                  Attorneys for Defendants




                              4
         Case 1:20-cv-01999-APM Document 85 Filed 06/01/21 Page 5 of 5




                                CERTIFICATE OF SERVICE

       I hereby certify that on June 1, 2021, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system, which will send notification of such filing to all users
receiving ECF notices for this case.


                                             /s/ Kuntal Cholera

                                             Kuntal V. Cholera
                                             United States Department of Justice
                                             Civil Division, Federal Programs Branch
                                             1100 L Street, NW
                                             Washington, D.C. 20005

                                             Attorney for Defendants




                                                5


File and source

File

85-response-to-motion.pdf

Size

129,051 bytes

SHA-256

189ea12cd05a7fd84be5ecbe388d96d2f9c70d4346cd9d27171584faffd05dfd

Our copy

85-response-to-motion.pdf

Original

storage.courtlistener.com