Status Report, Shawnee Tribe v. Mnuchin (later v. Yellen), No. 1:20-cv-01999 (D.D.C.), Doc. 69 (April 1, 2021)

Summary

A Joint Status Report, Document 69, filed April 1, 2021, in The Shawnee Tribe v. United States Department of the Treasury, et al., Case No. 1:20-cv-01999-APM, with the Miccosukee Tribe of Indians of Florida and Prairie Band Potawatomi Nation matters, in the United States District Court for the District Columbia. Under a March 30, 2021 Minute Entry, the parties conferred on the briefing schedule for Plaintiffs' Joint Motion for Preliminary Injunction Directing Immediate Interim Distribution of CARES Act Funds. They agree on a Government response of Tuesday, April 6, 2021, a Plaintiff's reply of Tuesday, April 13, 2021, and a hearing on or before Friday, April 16, 2021. Defendants ask to suspend the summary judgment schedule, or at a minimum reset Treasury's brief to May 7, 2021; Plaintiffs say it should remain the same.

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           Case 1:20-cv-01999-APM Document 69 Filed 04/01/21 Page 1 of 8




                           UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT COLUMBIA


 THE SHAWNEE TRIBE,

          Plaintiff,

          v.
                                                     Case No. 1:20-cv-01999-APM
 UNITED STATES DEPARTMENT OF THE
 TREASURY, et al.

          Defendants.


 THE MICCOSUKEE TRIBE OF INDIANS OF
 FLORIDA,

          Plaintiffs,
                                                   Case No. 1:20-cv-02792-APM
          v.

 UNITED STATES DEPARTMENT OF THE
 TREASURY and UNITED STATES OF
 AMERICA,

          Defendants.


 PRAIRIE BAND POTAWATOMI NATION,

          Plaintiff,

          v.                                        Case No. 1:21-cv-012-APM

 STEVEN T. MNUCHIN, in his official capacity
 as SECRETARY, U.S. DEPARTMENT OF
 TREASURY

          Defendant.


                                JOINT STATUS REPORT

         Pursuant to this Court’s March 30, 2021 Minute Entry, Plaintiffs Shawnee Tribe,

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Miccosukee Tribe and Prairie Band Potawatomi Nation (collectively, “Plaintiffs”), and Defendants

(collectively, referred to as the “Government”) have met to confer on (1) the briefing schedule for

Plaintiffs’ Joint Motion for Preliminary Injunction Directing Immediate Interim Distribution of

CARES Act Funds (Dkt. 65) (the “PI Motion”); and (2) whether the briefing of the PI Motion and

subsequently filed amended complaints (Dkts. 66-68) impacts the briefing schedule for the

anticipated consolidated motions for summary judgment on the merits set forth in this Court’s

February 25, 2021 Docket Minute Entry.

         First, with respect to the PI Motion, Plaintiffs and the Government agree to the following

briefing and hearing schedule:

         Filing                        Deadline

         Government’s Response         Tuesday, April 6, 2021

         Plaintiff’s Reply             Tuesday, April 13, 2021

         Hearing                       On or before Friday, April 16, 2021

         Second, Plaintiffs and the Government disagree as to the impact of the PI Motion and

amended complaints on the consolidated summary motion briefing schedule.

         Defendants’ Position

         Despite numerous filings and hearings addressing next steps in this case, as a result of

which the Court set the current briefing schedule, Plaintiffs have only now filed a motion for

preliminary injunctive relief seeking immediate, mandatory payments, even though their summary

judgment motion is scheduled to be filed tomorrow. Should this Court decide that the motion for

preliminary injunction should be decided immediately, despite Plaintiffs’ delay in filing it,

Defendants have agreed to the schedule set forth above.

         However, should the Court adopt an immediate briefing schedule for the PI, it should stay



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the current schedule for summary judgment, as it makes little sense to brief the core legal issues

in this case twice, when the Department of the Treasury is in the process of arriving at a decision

that would render the current dispute moot. The PI Motion argues that Treasury’s original

methodology was arbitrary and capricious—the central claim in Plaintiffs’ Complaints—and that

Treasury is legally obligated to adopt a new methodology consistent with Plaintiffs’ preferred

specifications. The PI Motion thus seeks an affirmative injunction compelling Treasury to

immediately make payments to Plaintiffs consistent with their legal theory. The PI Motion

therefore largely covers, and requires the Court to address, the central issues in Plaintiffs’

forthcoming summary judgment motion.

         Accordingly, the Court should suspend the current summary judgment briefing schedule.

First, requiring the parties to proceed under the current schedule would be inefficient, requiring

the parties to brief essentially the same legal issues twice in a compressed time-frame. Second, the

impetus behind the current schedule—to ensure that Plaintiffs get a prompt decision on the

merits—carries less weight now. Due to the PI Motion, Plaintiffs will get a speedy decision on

whether they are entitled to any immediate relief based on their principal APA claim. Thus, there

is little reason to unnecessarily accelerate summary judgment briefing, especially since it will

concern a methodology that Treasury is going to replace.

         Plaintiffs contend that the PI Motion and their forthcoming summary judgment motion will

address separate issues; the PI Motion addresses only the timing of payments, and the summary

judgment motion will address other claims as well. But this is incorrect. The PI Motion does not

only address when Treasury must make payments, but also addresses how Treasury must go about

calculating those payments. As noted above, Plaintiffs argue that in light of their legal claim

against the original methodology, any subsequent methodology must meet certain requirements.



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And even if the summary judgment motion will cover certain other, ancillary claims, Plaintiffs

cannot dispute that the PI Motion focuses on their central claim, thus ensuring that there will be

significant overlap between the PI and summary judgment motions.

           The Court should therefore delay all summary judgment briefing until after Treasury has

released its new methodology. At a minimum, in light of the additional briefing schedule

necessitated by the filing of the PI, the Court should reset the deadline for Treasury’s summary

judgment brief for May 7, 2021.

           As for the propriety of the Shawnee Tribe’s amended complaint, the Court did not ask the

parties to address that issue in its March 30, 2021 Minute Order, and thus Treasury will not address

it here.

           Plaintiffs’ Position

           Plaintiffs’ position is that the PI Motion does not change the course of this case and the

consolidated summary judgment briefing should remain the same. Contrary to the Government’s

position above that the PI Motion covers the “core” issues in the summary judgment briefing, the

PI Motion resolves a much narrower issue as to whether the Government has delayed in issuing

Title V relief funding, which had a deadline of April 30, 2020, and is required to issue immediate

payments to Plaintiffs. Based on the schedule above, the consolidated summary judgement motion

resolves all merits issues and procedural arguments with respect to remedies.

           The Government’s assertion that Plaintiffs have somehow delayed in bringing the PI

Motion is simply incorrect. All parties, including this Court, have been engaged in efforts since

February to resolve this case, which includes discussions about interim payments. Plaintiffs acted

in good faith engaging in those discussions, at the direction of this Court, without engaging in

further expensive briefing. Only after it became clear that those discussions had become futile did



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it become apparent for the need to file the PI Motion. Regardless, the Government fails to identify

any prejudice as a result of any alleged delay - the very basis of which is the result of the

Government’s own conduct. If the court’s ruling on the PI Motion - which is scheduled to be

briefed and heard before the Government’s response to the summary judgment motion is due -

decides any of the issues in the summary judgment motion, then the Government can adjust its

summary judgment response appropriately.

         With respect to the amended complaints, as noted in the Shawnee Tribe’s Motion for Leave

to Amend, the Government has been on notice of the proposed amendments since February, if not

longer, and the amendments have been filed before the consolidated summary judgment briefing

has begun and several weeks before the Government is required to respond to that briefing. As to

Miccosukee and Prairie Band, the amended complaints are filed as of right and raise claims

previously litigated by the Government. Accordingly, in either case, there is no basis to delay the

consolidated summary judgment briefing.

         Respectfully submitted this 1st day of April, 2021.

                                              Respectfully submitted,

                                              /s/ Pilar M. Thomas
                                              Jonathan Labukas
                                                      (D.C. Bar 998662)
                                              QUARLES & BRADY LLP
                                              1701 Pennsylvania Avenue, NW, Suite 700
                                              Washington, DC 20006
                                              Phone: (202) 372-9514

                                              Pilar M. Thomas
                                                     (Admitted Pro Hac Vice)
                                              QUARLES & BRADY LLP
                                              One South Church Avenue, Suite 1800
                                              Tucson, Arizona 85746




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                                      Nicole L. Simmons
                                             (Admitted Pro Hac Vice)
                                      QUARLES & BRADY LLP
                                      One Renaissance Square
                                      Two North Central Avenue
                                      Phoenix, Arizona 85004-2391

                                      Attorneys for Plaintiff The Shawnee Tribe


                                      Daniel Francis Diffley
                                      George Blay Abney , I
                                      ALSTON & BIRD LLP
                                      1201 West Peachtree Street
                                      Atlanta, GA 30309

                                      Daniel Jarcho
                                      ALSTON & BIRD LLP
                                      The Atlantic Building
                                      950 F Street, NW
                                      Washington, DC 20004-1404

                                      Jean Richmann
                                      ALSTON & BIRD
                                      560 Mission Street, Ste 2100
                                      San Francisco, CA 94105

                                      Attorneys for Plaintiff Miccosukee Tribe of Indians
                                      of Florida


                                      Carol Heckman
                                      James Peter Blenk
                                      LIPPES MATHIAS WEXLER FRIEDMAN, LLP
                                      50 Fountain Plaza, Suite 1700
                                      Buffalo, NY 14202

                                      Michael G. Rossetti
                                      LIPPES MATHIAS WEXLER FRIEDMAN LLP
                                      1900 K Street NW, Suite 730
                                      Washington, DC 20006

                                      Attorneys for Plaintiff Prairie Bank Potawatomi
                                      Nation




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                                      BRIAN BOYNTON
                                      Acting Assistant Attorney General

                                      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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                        CERTIFICATE OF FILING AND SERVICE

        The undersigned hereby certifies that on the 1st of April, 2021, the foregoing document
was filed with the Court using the CM/ECF system and served which provided service to all parties
through their attorney of record.


                                              /s/ Dawn McCombs




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