Status Report, Shawnee Tribe v. Mnuchin (later v. Yellen), No. 1:20-cv-01999 (D.D.C.), Doc. 62 (March 5, 2021)

Summary

A Status Report, Document 62, filed March 5, 2021, in The Shawnee Tribe v. Janet Yellen, et al., Case No. 20-cv-1999, United States District Court, District of Columbia. The report responds to the Court's instruction at the February 25, 2021 status hearing to say whether Treasury could promptly issue advance payments from the funds identified in 42 U.S.C. § 801(a)(2) before a revised methodology is finalized, and whether Treasury can accelerate the timeline for developing it. Treasury states that it does not intend to make advance payments to Plaintiffs without first ascertaining the amount under a revised methodology, and that Treasury will endeavor to finalize the revised methodology before April 30, 2021. The signature block names Kuntal V. Cholera and Jason C. Lynch.

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         Case 1:20-cv-01999-APM Document 62 Filed 03/05/21 Page 1 of 3




                           UNITED STATES DISTRICT COURT
                               DISTRICT OF COLUMBIA

 THE SHAWNEE TRIBE,

                       Plaintiff,

        v.
                                                                       Case No. 20-cv-1999
 JANET YELLEN, in her official capacity
 as Secretary of the Treasury, et al.,

                       Defendants.

                                        STATUS REPORT

       During the February 25, 2021 status hearing, the Court instructed Defendants to file a status

report by March 5, 2021 indicating (i) whether the Department of the Treasury could promptly

issue advance payments to Plaintiffs from the funds identified in 42 U.S.C. § 801(a)(2) before

Treasury has finalized a revised methodology, and (ii) whether Treasury can accelerate the

anticipated timeline for its development of the revised methodology.

       First, although Treasury recognizes Plaintiffs’ concerns about the need for prompt

payments, Treasury does not intend to make advance payments to Plaintiffs without first

ascertaining the amount Plaintiffs, and others, may receive under a revised methodology. As an

initial matter, a decision to issue payments prior to a final decision as to a revised methodology

would prejudge the decision, including the entitlement to any additional payments and the amount

of any such payments, and may have unintended ramifications for similarly-situated entities.

Relatedly, in order to issue any payments to Plaintiffs before the completion of a satisfactory,

revised methodology, Treasury would effectively have to select payment amounts based on an

incomplete analysis—again, to the potential detriment of other entities.




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         Case 1:20-cv-01999-APM Document 62 Filed 03/05/21 Page 2 of 3




       As Treasury has previously stated, its goal is to revise the methodology for distributing the

remaining funds in a rational manner that takes into account the interests of Plaintiffs and other

parties who would be affected by such a decision. This is consistent with the approach courts often

encourage agencies to pursue in the first instance, to “allow an administrative agency to perform

functions within its special competence—to make a factual record, to apply its expertise, and to

correct” any alleged errors “so as to moot judicial controversies,” all of which may serve the

interest of “judicial economy.” Akiachak Native Cmty. v. United States Dep’t of Interior, 827 F.3d

100, 104 (D.C. Cir. 2016). Accordingly, Treasury intends to proceed in the manner identified in

its February 15, 2021 status report.

       Treasury’s desire to pursue its reconsideration process in accordance with the traditional

agency process does not mean, however, that it is unsympathetic to this Court’s and the Plaintiffs’

desire for prompt action. Accordingly, in response to the Court’s second inquiry, Treasury will

endeavor to finalize its revised methodology before April 30, 2021, the initial target date identified

in Treasury’s February 15, 2021 status report, see ECF No. 60. As previewed in Defendants’

February 15 status report, Treasury intends to complete a number of steps to design and execute a

satisfactory methodology, including holding relevant consultation sessions. See id. Nonetheless,

in light of the Court’s remarks during the February 25, 2021 status conference, Treasury will assess

if and how it may further streamline this process. Additionally, Treasury has agreed to issue

payments promptly after completing its revised methodology, further minimizing delays in issuing

payments.



Dated: March 5, 2021                                  Respectfully submitted,


                                                      BRIAN BOYNTON
                                                      Acting Assistant Attorney General


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Case 1:20-cv-01999-APM Document 62 Filed 03/05/21 Page 3 of 3




                                  ERIC WOMACK
                                  Assistant Branch Director

                                  /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




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