Status Report, Shawnee Tribe v. Mnuchin (later v. Yellen), No. 1:20-cv-01999 (D.D.C.), Doc. 60 (February 15, 2021)

Summary

A Status Report, Document 60, filed February 15, 2021, in The Shawnee Tribe v. Janet Yellen, et al., Case No. 20-cv-1999, United States District Court, District of Columbia. It answers a January 21, 2021 Minute Order asking whether the Treasury Department will re-consider the formula or data used to allocate the population-based distribution of funds under Title V of the CARES Act. Defendants notify the Court that Treasury will construct a revised methodology for allocating funds remaining from the appropriation identified in 42 U.S.C. § 801(a)(2)(B), and anticipate publishing it on or before April 30, 2021. Treasury requests a stay until the revised methodology is published and relief from the obligation to produce an administrative record on the initial allocation methodology.

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         Case 1:20-cv-01999-APM Document 60 Filed 02/15/21 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

       On January 21, 2021, the Court issued a Minute Order stating that, “on or before February

15, 2021, Defendants shall file a Status Report that advises whether the Treasury Department will

re-consider the formula or data used to allocate the population-based distribution of funds under

Title V of the CARES Act.”

       Defendants hereby notify the Court that the Department of the Treasury will construct a

revised methodology to determine how Treasury will allocate any funds remaining from the

appropriation identified in 42 U.S.C. § 801(a)(2)(B). In constructing this revised methodology,

Treasury intends to re-consider the formula and/or data used to allocate the funds to Plaintiffs, and

similarly-situated Tribes, under Title V of the CARES Act. Furthermore, the revised methodology

will account for both the scenario in which the Supreme Court affirms, and the scenario in which

the Supreme Court reverses, the D.C. Circuit decision in Confederated Tribes of the Chehalis

Reservation v. Mnuchin, 976 F.3d 15, 17 (D.C. Cir. 2020), cert. granted sub nom. AK Native Vill.

Corp. v. Confederated Tribes, No. 20-544, 2021 WL 77252 (U.S. Jan. 8, 2021), and cert. granted

sub nom. Mnuchin, Sec. of Treasury v. Confederated Tribes, No. 20-543, 2021 WL 77253 (U.S.




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         Case 1:20-cv-01999-APM Document 60 Filed 02/15/21 Page 2 of 3




Jan. 8, 2021), as the Supreme Court’s decision will impact the availability of funds for additional

payments.

       Treasury anticipates publishing its revised methodology on or before April 30, 2021. This

proposed deadline should provide Treasury with sufficient time to, among other things, consider

potential alternatives, settle on an appropriate solution, identify the relevant data and conduct the

relevant calculations necessary to execute the revised methodology, and issue a final decision. This

amount of time will allow Treasury to account for the multiple factors and eventualities it may

face in deciding how best to re-allocate the relevant funds.

       In light of Treasury’s intention to revise its methodology for distributing the remaining,

relevant funds, Treasury requests that the Court stay this matter until Treasury publishes its revised

methodology. Once Treasury publishes its revised methodology, the parties may confer and

determine whether further proceedings are necessary. Additionally, Treasury further requests that

the Court relieve Treasury of its current obligation to produce an administrative record concerning

Treasury’s initial allocation methodology, which will be immaterial to any potential litigation over

Treasury’s revised methodology. Treasury will be prepared to discuss these and other related

matters at the status conference set for February 17, 2021, and to file a formal request for a stay if

necessary.

Dated: February 15, 2021                              Respectfully submitted,


                                                      BRIAN BOYNTON
                                                      Acting Assistant Attorney General

                                                      ERIC WOMACK
                                                      Assistant Branch Director

                                                      /s/ Kuntal Cholera
                                                      Kuntal V. Cholera
                                                      Jason C. Lynch
                                                      Trial Attorney


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Case 1:20-cv-01999-APM Document 60 Filed 02/15/21 Page 3 of 3




                                  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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