Status Report, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 35 (May 30, 2020)

Summary

Joint Status Report, Document 35 in Agua Caliente Band of Cahuilla Indians, et al. v. Mnuchin, Case No. 1:20-cv-1136-APM, in the U.S. District Court for the District of Columbia, filed May 30, 2020. Submitted under the Court's Minute Order of May 27, 2020, it states that the parties could not agree on a schedule and sets out separate positions on the remaining $3.2 billion in CARES Act funds for Tribal governments. Plaintiff Tribes propose renewing the preliminary injunction motion on or before June 3, 2020, with oral argument on June 8, 2020. Defendant proposes summary judgment briefing, with Plaintiffs' motion on June 25, 2020 and a hearing on July 3, 2020. The signature blocks name Keith M. Harper for plaintiffs and Jason C. Lynch for defendant.

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“Status Report, Agua Caliente Band of Cahuilla Indians et al. v. Mnuchin, No. 1:20-cv-01136 (D.D.C.), Doc. 35 (May 30, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/status-report-agua-caliente-band-of-cahuilla-indians-et-al-v-mnuchin-n-f232028cd9/, SHA-256 58888aee8c0cc47b8b69259d77263039c7c7e9c169833b9567868e33421e9be9.

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AGUA CALIENTE BAND OF CAHUILLA
INDIANS, et al.,

Plaintiffs,

v. Case No. 1:20-cv-1136-APM

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

Defendant.

JOINT STATUS REPORT

Pursuant to the Court’s May 27, 2020 Minute Order, Counsel for the 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 Yurok Tribe of the Yurok Reservation (“Plaintiff Tribes”) conferred with

Counsel for Defendant Steve Mnuchin (“Defendant”) on May 28, 2020, and hereby submit this

Joint Status Report. Despite having met and conferred in accord with the Court’s order, the Parties

could not reach agreement on a proposed schedule for further proceedings and hereby state their

respective positions below.

Plaintiffs’ Position: On May 26, 2020, Defendant submitted a status report to the Court

and indicated that, as of 5:00 p.m. Eastern Daylight Time that day, four of the Plaintiff Tribes had

not yet submitted employment and budgetary data to the Department of Treasury’s online portal,

required for allocating the remaining funds set aside for Tribal governments under Title V of the

CARES Act, Pub. L. 116-136, 134 Stat. 281 (2020), 42 U.S.C. § 801. ECF No. 33-1, ¶ 6. However,

the deadline for the Tribes to submit the requested data was many hours later that day at 11:59
Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 2 of 7

p.m. Alaska Daylight Time. Id. ¶ 3. All Plaintiff Tribes made their submissions before the deadline.

A true and correct copy of the Plaintiff Tribes’ confirmation of receipt of information, wherein

Defendant initially claimed Plaintiff Tribes had not submitted their information in time, is attached

hereto and incorporated herein as Exhibit 1.

Defendant has announced that the Department of Treasury has extended the deadline for

submitting this data until 12:00 p.m. Eastern Daylight Time on Friday, May 29, 2020. During the

meet and confer, Defendant was unable to commit that the extension of the deadline to submit data

would not delay distribution of the remaining CARES Act funds. Defendant has reiterated to

Plaintiff Tribes two germane facts for the Court’s consideration. First, the current plan has not

shifted to the best of Defendant counsel’s knowledge and distributions of the remaining CARES

Act funds are planned to begin on June 5, 2020 and be completed within a few days thereafter.

Defendant has further confirmed that other than the set aside from Alaska Native Corporations

(ANCs), all of the $3.2 billion will be distributed at that time.

Congress directed Defendant to distribute all Title V funds of the CARES Act to Tribal

governments within 30 days of the enactment of the CARES Act. More than 60 days have now

passed and this Court indicated that, if Defendant failed to distribute these funds within 60 days,

Defendant’s inaction could amount to sufficient “egregiousness” to warrant more prescriptive

Court action. ECF No. 29 at 15. As evidenced by previously filed declarations by Plaintiff Tribes,

there is a desperate need for these funds to alleviate the challenges caused by the novel coronavirus

pandemic. See, e.g., Affidavit of Brandon Peters, ECF No. 27-3, ¶¶ 9-13; Affidavit of Christopher

Castleberry, ECF No. 27-4, ¶¶ 5-7; Affidavit of Max Ross, ECF No. 27-5, ¶¶ 8-14. In status reports

to this Court, Defendant has provided a schedule for distribution for the remaining $3.2 billion in

CARES Act funds, but has not definitively committed to a date certain for distribution. Despite

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 3 of 7

the emergent and pressing need for these funds, Defendant has made no commitment that the

remaining funds will be distributed by June 5, 2020. Now, at the eleventh hour, Defendant states

that there will be still more delay – delay that will cause further irreparable harm. Throughout this

process, Defendant has moved the goal post, committing to one schedule, only to change to

another. What is worse, now Defendant seems to blame the tribes, though the delays – including

re-asking for new information than originally requested – plainly stems from Defendant’s

incompetence.

Since Defendant has now clarified the distribution will be further and unconscionably

delayed beyond June 5th, Plaintiff Tribes have no choice but to renew their motion for an injunction

to respectfully ask this Court to mandate distribution by a date certain.

Plaintiff Tribes respectfully propose the following briefing schedule:

 Plaintiffs shall renew their Motion for a preliminary injunction on or before June 3,

2020;

 Defendant shall file his Opposition on June 5, 2020;

 Plaintiffs shall file their Reply on June 7, 2020; and

 Oral Argument to occur on June 8, 2020, at a time convenient for the Court.

Defendant has indicated that he would prefer submitting motions for summary judgment,

rather than answering Plaintiff Tribes’ complaint. Plaintiff Tribes do not oppose this approach, so

long as the Court adopts an expedited schedule as proposed above.

Defendant’s Position:

On May 11, 2020, the Court denied without prejudice Plaintiffs’’ motion for a preliminary

injunction. Mem. Op. & Order (ECF No. 29). Plaintiffs had not “carried their burden to show that

the Secretary’s delay thus far [was] so egregious as to warrant mandamus relief.” Id. at 2. The

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 4 of 7

Court made clear that Defendant’s allotted time was not “indefinite,” however, and that Plaintiffs

could renew their motion “should the Secretary’s failure to distribute the remaining Title V funds

persist for much longer.” Id. at 15. More specifically, the Court signaled that the question of

“egregiousness” would become “closer” “should the Secretary’s delay verge on doubling the time

Congress mandated.” Id. Thus, the Court suggested that a delay until June 25, 2020, might warrant

Plaintiffs’ renewing their motion, while stopping short of “set[ting] a firm date.” Id.

On May 15, 2020, Defendant filed a status report and attached a comprehensive plan to

begin making payments by June 5—well short of the point of potential unreasonableness indicated

by the Court. In response, the Court ordered another status report to be filed one week later, and

has since ordered additional such reports.

On May 26, 2020, Defendant conveyed in its status report that nearly two thirds of Tribes

had not yet submitted the requisite data, and that Defendant was considering an extension of the

submission deadline. Defendant later extended that deadline to 12:00 p.m. today.

As Defendant anticipates explaining in its forthcoming status report, due Tuesday, June 2,

2020, there continue to be issues with the Tribes’ submissions. Many of them are, upon initial

review, either incomplete or incorrect. Many of them still have not yet been submitted. For these

reasons, it is possible that Defendant might not make allocation determinations by June 4, or

payments by June 5, 2020. Again, Defendant hopes to shed more light in its forthcoming status

report.

Defendant does not believe that a slight delay past June 5, even if it is necessitated, warrants

renewal of Plaintiffs’ motion at this juncture. Defendant has been, and will continue to be,

transparent about its timing in status reports filed publicly with this Court. Indeed, in light of the

fact that status reports will provide the same opportunity as a motion for this Court to evaluate the

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 5 of 7

continuing efforts of Defendant to pay the amounts provided for by statute, Defendant submits that

additional motions practice is entirely unwarranted. Instead, Defendant proposes to continue

submitting status reports as ordered by the Court, which will keep it apprised—along with

Plaintiffs and the public—about Defendant’s progress towards payments.

If this Court prefers to set a briefing schedule now, rather than wait to evaluate Defendant’s

status reports, Defendant respectfully submits that summary judgment is the vehicle to resolve this

dispute, without the need for an answer from Defendant. Thus, Defendant proposes the following

schedule:

 Plaintiffs’ Motion: June 25, 2020

 Defendant’s Opposition: June 30, 2020

 Plaintiffs’ Reply: July 2, 2020

 Hearing: July 3, 2020

Dated: May 29, 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 900
Washington, D.C. 20005
Tel: 202-508-5800
Fax: 202-508-5858

Rob Roy Smith (admitted pro hac vice)
WSBA No. 33798
KILPATRICK TOWNSEND & STOCKTON LLP
1420 Fifth Avenue, Suite 3700
Seattle, Washington 98101
Tel: (206) 467-9600
Fax: (206) 623-6793

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 6 of 7

Attorneys for Plaintiffs

JOSEPH H. Hunt
Assistant Attorney General

ERIC WOMACK
Assistant Branch Director

/s/ Jason C. Lynch
Jason C. Lynch, DC Bar No. 1016319
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

Attorney for Defendant

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Case 1:20-cv-01136-APM Document 35 Filed 05/30/20 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of May, 2020, I electronically filed the forgoing
Joint Status Report 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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