Plaintiffs’ Motion for Summary Judgment — Shawnee Tribe v. Treasury, No. 1:20-cv-01999

Summary

Plaintiffs’ motion for summary judgment, filed April 2, 2021, in the United States District Court for the District of Columbia by the Shawnee Tribe, the Miccosukee Tribe of Indians of Florida and Prairie Band Potawatomi Nation against the Government. The motion says the Government used an elective federal housing program formula (the Indian Housing Block Grant Data) that falsely reported the Shawnee’s and Miccosukee’s population as zero and reduced Prairie Band Potawatomi’s population by over 83% in distributing CARES Act funding. It also states that the plaintiffs certified enrolled members of 4,561 for Prairie Band Potawatomi, 3,021 for the Shawnee and 605 for Miccosukee, and that the Government never challenged the accuracy of these certifications.

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Cite this document

“Plaintiffs’ Motion for Summary Judgment — Shawnee Tribe v. Treasury, No. 1:20-cv-01999.” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/summary-judgment-shawnee-tribe-v-mnuchin-later-v-yellen-no-1-20-cv-019-41123f0efb/, SHA-256 1ed13fb84461c53ebcaf99be47a46f67c6e86852724f25ec69701467ac5558b1.

Full text

Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 1 of 33

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 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.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 2 of 33

Pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 65.1, Plaintiffs

Shawnee Tribe (“Shawnee”), Miccosukee Tribe (“Miccosukee”) and Prairie Band Potawatomi

Nation (“Prairie Band Potawatomi”), hereby move for summary judgment against Defendants

(collectively hereinafter referred to as the “Government”) on Plaintiffs’ claims for declaratory

judgment and for judicial relief under the Administrative Procedure Act (“APA”) (5 U.S.C. § 701

et seq.). When Congress mandated that the Government allocate $8 billion in funds to “each”

Tribal Government “based” on increased expenses related to COVID-19, The Government used

an elective federal housing program formula (the Indian Housing Block Grant Data or “IHBG

Data”) that falsely reported the Shawnee’s and Miccosukee’s population as zero, and reduced

Prairie Band Potawatomi’s population by over 83%, for the purposes of distributing CARES Act

funding. It is undisputed that these funds were desperately needed by these three tribal

governments to help offset the traumatic toll that COVID-19 took on Indian country in general and

on these three Plaintiffs in particular. The Government’s actions were unreasonable, inexplicable

and irrational, thus, preventing Plaintiffs from receiving Title V relief funds to which they were

entitled and for which they so desperately need. Critically, the Government has entirely failed to

provide any explanation about why it used objectively false data in lieu of the certified population

data it had requested, defined, and received because there simply is none. Instead, The

Government’s decision to use the IHBG data lacks any connection whatsoever to increased

COVID-19 expenses and is belied by the very same population data contained within the IHBG

spreadsheet only a few columns away. This is akin to pulling numbers out of a hat – the epitome

of arbitrary and capricious action.

Accordingly, this Court should enter judgment for Plaintiffs and against Defendants

because: (1) the D.C. Circuit has already found that the Government’s actions were arbitrary and

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capricious, which is now the law of the case; and (2) in any event, the Government’s decision to

use such data on its face was implausible, had no basis in reasoned decision-making, failed to

consider multiple sources of accurate population data and even ignored its sister agency’s

recommendations. This Motion is supported by the following Memorandum of Points and

Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

A. The CARES Act and the Title V Coronavirus Relief Fund

Title V of the CARES Act amends the Social Security Act (42 U.S.C. § 301 et seq.), and

appropriates $150 billion for “payments to States, Tribal governments, and units of local

government.” 42 U.S.C. § 801(a)(1). Of the $150 billion, Congress set aside $8 billion for

payments to Tribal governments (“Title V funds”). 42 U.S.C. § 801(a)(2)(B). The Plaintiffs are all

federally recognized Tribal governments entitled to distributions of Title V funds.

Although Congress mandated that United States Census Bureau (“Census Bureau”)

population data was to be used to determine the distribution of Title V funds to States and units of

local government (42 U.S.C. § 801(8)), there was no such requirement for distributions to Tribal

governments.1 Instead, Congress directed the Secretary of Treasury to pay Title V funds to each

Tribal government based on “increased expenditures” directly resulting from COVID-19. 42

U.S.C. § 801(c)(7). In addition, Congress required the Government to consult with both the

Secretary of the Interior and with Tribal Governments to select a methodology for distribution of

funds. Id. Specifically, Congress directed:

From the amount set aside under subsection (a)(2)(B) for fiscal year 2020,
the amount paid under this section for fiscal year 2020 to a Tribal

1
Tribal governments are a distinct category from state and local governments in Title V. See e.g.
42 U.S.C. § 801(a)(1) (referencing “States, Tribal governments, and units of local government”).

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government shall be the amount the Secretary shall determine, in
consultation with the Secretary of the Interior and Indian Tribes, that
is based on increased expenditures of each such Tribal government …
relative to aggregate expenditures in fiscal year 2019 by the Tribal
government … and determined in such manner as the Secretary determines
appropriate to ensure that all amounts available under subsection (a)(2)(B)
for fiscal year 2020 are distributed to Tribal governments.

Id. (emphasis added).

B. The Government “Consults” with Tribal governments from March 31
to April 13, 2020

As directed by Congress, on April 2, 2020, and April 9, 2020, the Government and the

Office of the Assistant Secretary—Indian Affairs (“BIA”), United States Department of the

Interior, held telephonic consultation sessions, where federal officials heard from representatives

of Tribal governments across the United States. (See Exhibit A (produced as AR-03 in Dkt. 61);

Exhibit B (produced as AR-04 in Dkt. 61). These consultations were led by Interior and the

Government, and included Mr. Dan Kowalski, Senior Advisor to the Secretary, who was

authorized by the Secretary of the Government to administer CARES Act relief funds to Tribal

governments.

In the preamble to the April 2, 2020 telephone call, Mr. Kowalski explained that he was

“not an expert on Tribal issues” (Exhibit B, p. 14:4). He added later that he was “interested in

working with BIA and learning from BIA what models are out there for distributing funds” (id.,

p. 127:14-17). In the ensuing call, representatives from the Government, BIA and Tribal leaders

discussed the use of population as a relevant proxy for increased expenditures, based on the

obvious rationale that as population increases, so do COVID-related expenditures. (Id., pp. 19:14,

28:14, 71:16). One tribal leader advocated for consideration of Indian Health Services usage and

noted that “[m]any tribal members are unable to live within the boundaries and so we want to

consider that was well.” (Id., p. 134:8-10). Neither the Government nor BIA made any mention of

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using the Housing and Urban Development formula for the Indian Housing Block Grant program

(IHBG Data). (See generally Id.).

Instead, on April 13, 2020, the Government solicited from Tribal governments their

“Population,” defined as the “Total number of Indian Tribe Citizens/Members/Shareholders, as of

January 1, 2020.” (Exhibit C (Declaration of Michael G. Rossetti (“Rossetti Dec”), Ex. D-2, filed

in No. 1:21-cv-00012 at Dkt. 4-6)). Each Plaintiff separately responded to this solicitation by

certifying, under oath, current and accurate enrollment figures (the “Certified Tribal Enrollment

Data”). (See Exhibit D (Declaration of Joseph P. Rupnick (“Rupnick Dec.”), Ex. B, filed in No.

1:21-cv-00012 at Dkt. 4-20); Exhibit E).

C. Plaintiffs’ Timely Provide Their Certified Tribal Enrollment to the
Government, the Accuracy of Which the Government Never
Challenged

There is no dispute that the Plaintiffs timely provided Certified Tribal Enrollment Data by

the requested deadline of April 17, 2020. For instance, Prairie Band Potawatomi timely certified

to the Government that it had 4,561 enrolled members as of January 1, 2020. (Exhibit D (Rupnick

Dec.) ¶ 7). The Shawnee timely certified it had 3,021 enrolled members as of January 1, 2020.

(Exhibit E). Miccosukee timely certified that it had 605 enrolled members as of January 1, 2020.

(Id.).

The Government never challenged the accuracy of these certifications. Specifically, in a

non-public memorandum issued on May 5, 2020, the Government credited employment data

provided by the Tribes, but criticized the reliability of land size and expenditure data due to

“variances, likely due to differences in the methodologies that various Tribes use to determine land

size or calculate expenditures.” (Exhibit G (produced as AR-06 as noted in Dkt. 61), p. 2.) Yet

despite the clear opportunity to do so in the May 5, 2020 memorandum and throughout this case,

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the Government has utterly failed to document any such flaw in the Certified Tribal Enrollment

Data.

D. Without notice, the Government Changed Course and Used a
Preexisting HUD Metric to Allocate Funds

After requiring tribes to submit and certify several categories of data by April 17, 2020,

the Government changed course – without explanation and without further consultation – and used

the IHBG Data from a block grant housing formula in lieu of Certified Tribal Enrollment Data.

On May 5, 2020, the Government publicly announced that it elected to immediately award sixty

percent of the Title V Funds, or $4.8 billion, “based on Tribal population” (the “Population

Award”) because “Tribal population [was] expected to correlate reasonably well with the amount

of increased expenditures of Tribal governments related directly to the public health emergency,

such as increased costs to address medical and public health needs.” (Exhibit H (produced as AR-

07 as noted in Dkt. 61), p. 2). The Government stated that the remaining forty percent of funds

would be distributed at a later date based on employment and expense data. (Id.).

In that same May 5, 2020 Announcement, the Government also announced its election to

allocate the Population Award by using population data from the IHBG Data. The Government

credited, in conclusory fashion, the IHBG Data as a “reliable and consistently-prepared data for

the key variable that is used by the Department of Housing and Urban Development in connection

with the [IHBG] program.” (Exhibit G, p. 2). The Government, however, provided no other

explanation as to why this data was superior to enrollment data certified by the Plaintiffs nor did

it identify any weakness in the reported data or identify any shortcoming of an enrollment-based

approach necessitating its replacement with the IHBG Data. (See id.). The Government

administrative record also does not shed any light on this deliberation. (Exhibit F (Certification of

Administrative Record certifying that the records attached thereto is the full record of information

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considered by the Government, which was to be supplemented only by any additional information

provided by the Tribal Governments)).

On June 12, 2020, the Government issued a press release acknowledging that had the

Government used the reliable data “provided by the Bureau of Indian Affairs, rather than the

[census-based IHBG] data,” an additional $679 million would have been allocated to certain tribes.

(Exhibit I, p. 2). The Government, accordingly, voluntarily withheld that amount “to resolve any

potentially adverse decision in litigation,” which it deemed “a prudent course” of action (id.) and

was a clear acknowledgment that the Government may have erred in its use of the IHBG Data.

Notably, the Government’s selection of the IHBG Data was not supported by BIA, which

“ultimately recommended a distribution formula that relied on population, expense, and

employment data.” (Exhibit G, p. 2). In the end, the administrative record demonstrates that the

Government spontaneously and without explanation chose to use the IHBG Data in lieu of the

Certified Tribal Enrollment Data that the Government solicited and received weeks prior, which

was contrary to the recommendations of the BIA, the federal agency staffed by subject matter

experts in the relevant field. The Government’s extraordinary action was based on a memorandum

by the Government employee who had, only a few days prior, disclaimed expertise on “Indian

Affairs.” (See id. (“From: Daniel Kowalski”); Exhibit B, p. 14:4).

E. Without explanation, the Government Adapts the IHBG Data in
Select Instances to Account for Recognized Weaknesses in the Data in
Favor of Some Tribes but Not Others

At the time the Government adopted the IHBG Data, it recognized that it was inaccurate

with respect to at least some tribes. One such example was the decision to set a minimum payment

of $100,000 to the “smallest Indian Tribes," defined as populations less than 37 people. (Exhibit

H, p. 3.) The purpose of this adjustment was to account for the “relative significance that variations

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in population would have at the low end of the range and the greater marginal costs that small

Indian Tribes have in providing services to their people.” (Id.)

The Government’s complex marginal cost analysis inexplicably ignored the obviously

incorrect IHBG Data for Shawnee and Miccosukee. Thus, while the Government sought to make

financial accommodations for the "smallest tribes" with actual populations of less than 37 people,

it irrationally and unreasonably included Miccosukee and Shawnee with actual populations of 605

and 3021, respectively. And the Government artificially cut off the Prairie Band Potawatomi’s

population at 747, compared to its actual population or enrollment of 4,561, causing Prairie Band

to receive $12,544,246 less than it would have if its entire population had been considered.2

This deliberate use of objectively false data is further unexplained - and unexplainable - in

light of the Government’s recognition and correction of issues with the IHBG Data with its

response to three Indian Tribes – specifically Chicken Ranch, Mohegan and Prairie Island – that

were “not included in the IHBG population data.” Recognizing this issue, the Government

contacted HUD for data on these tribes. (See Exhibit J.) This stands in glaring contrast to the

Government’s failure to acknowledge, let alone correct, the obviously false data showing zero

population for 25 existing Tribes. There is no evidence in the administrative record that excuses

or explains the Government's faulty decision-making here.

2
In prior analysis of its shortfall, Prairie Band Potawatomi had relied on an IHBG Data value of
883 based on a provisional dataset that was published by the Government at the time that the
IHBG Data was announced as the relevant metric. (See generally Exhibit C (Rossetti Dec.)). The
administrative record now demonstrates that the final dataset on which the Government relied
reflected a value of 747 for Prairie Band Potawatomi. (Exhibit K, p. 9.) Prairie Band has therefore
recalculated the shortfall caused by the Government’s selection of the IHBG Data as $12,544,246,
which reflects 3,814 uncounted Prairie Band Potawatomi citizens multiplied by estimated per
capita Population Award allocation of $3,289.

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F. It is Undisputed that Plaintiffs’ Populations were Undercounted Due to
the Government’s Approach

The IHBG Data selected by the Government in lieu of the Tribes' certified and readily

available population data showed that certain tribes had a population of zero, which is a legal and

factual impossibility for an existing, federally recognized Indian Tribe. And other tribes, such as

Prairie Band Potawatomi were grossly undercounted. As stated above, the Shawnee timely

certified it had 3,021 enrolled members as of January 1, 2020, but the IHBG Data shows the

Shawnee had a population of zero. Critically, within the same IHBG Data formula table the

Government had before it, and only a few columns over from the zero figure the Government used,

HUD also reported, albeit incorrectly, that the Shawnee Tribe had “2113 enrolled members”

(“HUD Enrollment Data”). (Exhibit K (produced as AR-02 in Dkt. 61), p. 9.)

Likewise, Miccosukee had 605 enrolled members as of January 1, 2020 but was assigned

a zero population. In both instances, for the purposes of calculating CARES Act funding

distributions, the Government had eliminated 100% of the Shawnee and Miccosukee’s tribal

population. Based on the Shawnee and Miccosukee IHBG Data of zero, these tribes were awarded

a minimum payment of $100,000.

With respect to Prairie Band Potawatomi, it had certified its enrollment membership as

4,561 (Exhibit D ¶ 7) and the HUD Enrollment Data reflected the Prairie Band Potawatomi had

4,841 enrolled members. (Exhibit K, p. 9.) Yet, based on the IHBG Data used by the Government,

which is also maintained by HUD, Prairie Band Potawatomi’s Population Award of Title V Funds

was based on a population of 747. (Id. (column: AIAN Persons); Exhibit H (adopting IHBG Data).)

Thus, the Government simply eliminated 83% of Prairie Band Potawatomi’s population for the

purposes of calculating its allocation of Title V funds.

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II. RELATED LITIGATION

On April 17, 2020, certain Tribal governments commenced actions that were subsequently

consolidated. Confederated Tribes of the Chehalis Reservation v. Mnuchin, Case No. 1:20-cv-

1002 (D.D.C. filed April 17, 2020) (the “Chehalis Litigation”). The Chehalis Litigation will decide

whether the Government can treat Alaska Native Corporations (“ANCs”) as “Tribal governments”

under the CARES Act. See 42 U.S.C. § 801(g)(5) (defining “Tribal government” as “the

recognized governing body of an Indian Tribe”). The Court of Appeals for the D.C. Circuit recently

held that ANCs are not entitled to Title V Funds, which leaves roughly $533 million of Title V

Funds unallocated and in the possession of the Government. Confederated Tribes of the Chehalis

Reservation v. Mnuchin, 976 F.3d 15, 20 (D.C. Cir. 2020); Miccosukee Tribe of Indians of Florida

v. Mnuchin, D.D.C., Case No. 1:20-cv-2792-APM, Dkt. 40, December 11, 2020 (Joint Status

Report indicating that $533 million of Title V Funds remain). The ANCs have filed a petition for

writ of certiorari to the United States Supreme Court (Case No. 20-544). The Court of Appeals

for the D.C. Circuit stayed the appropriation of the Title V Funds pending the outcome of the writ

of certiorari and for at least seven (7) days thereafter. Chehalis Litigation, No. 20-5204, Document

# 1864207 (D.C. Cir. Sept. 30, 2020). With the appropriation preserved, the $553 million of Title

V Funds remain subject to Congressional directive to “ensure that all amounts…are distributed to

tribal governments.” 42 U.S.C. § 801(c)(7). The Government intends to distribute these funds at

the conclusion of the Chehalis Litigation. Chehalis Litigation, No. 20-5204, Document # 1864090

(D.C. Cir. Sept. 30, 2020).

III. PROCEDURAL HISTORY

On June 8, 2020, Plaintiff Prairie Band Potawatomi commenced litigation raising similar

claims to those set forth in the instant action. Prairie Band Potawatomi Nation v. Mnuchin, Case

No. 1:20-cv-01491 (D.D.C.) (“Prior PBPN Litigation”). The United States District Court for the

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District of Columbia denied Prairie Band Potawatomi’s motion for a preliminary injunction to

restrain Title V Funds that had not yet been distributed on the grounds, inter alia, that the

Government’s allocation methodology was committed to agency discretion by law and thus

unreviewable under Section 701(a)(2) of the Administrative Procedure Act. Id., Dkt. 22; see Prior

PBPN Litigation, No. 20-CV-1491 (APM), 2020 WL 3402298, at *1 (D.D.C. June 11, 2020).

Nevertheless, the Government sought to set aside $679 million to resolve the claims raised in the

Prairie Band Litigation. (Exhibit I, p. 2); Agua Caliente Band of Cahuilla Indians, et al. v.

Mnuchin, Case No. 1:20-cv-01136-APM, Dkt. 39, (D.D.C. June 12, 2020); Prior PBPN Litigation,

No. 20-CV-1491 (APM), at Dkt. 29, pp. 4-6 (the Government’s counsel proposing set aside for

claims of undercounted tribes before Court’s consideration of merits of Prairie Band Potawatomi’s

motion). This Court vetoed the Government’s proposal three days later and directed the

Government to distribute the $679 million set aside. Agua Caliente Band of Cahuilla Indians, et

al., Case No. 1:20-cv-01136-APM, Dkt. 42. Prairie Band Potawatomi voluntarily dismissed its

complaint without prejudice on July 9, 2020. See generally Prior PBPN Litigation, Case No. 1:20-

cv-01491, Dkt. 30 (D.D.C. July 9, 2020).

Meanwhile, on June 18, 2020, Shawnee commenced the instant action in the United States

District Court for the Northern District of Oklahoma challenging the Government’s allocation of

Title V Funds to Tribal governments. After the case was transferred to this Court, this Court denied

Shawnee’s motion for a preliminary injunction on the basis, inter alia, of non-reviewability under

the Administrative Procedure Act, citing the Court’s decision in the Prior PBPN Litigation.

Shawnee Tribe v. Mnuchin, No. 1:20-cv-1999-APM, 2020 WL 4816461 (D.D.C. Aug. 19, 2020).

This Court then dismissed the complaint. Shawnee Tribe, No. 1:20-cv-1999-APM, 2020 WL

5440552, at *4 (D.D.C. Sep. 10, 2020) rev’d 984 F.3d 94 (D.C. Cir. 2021). Shawnee pursued an

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expedited appeal. Miccosukee, which had filed a related action on July 31, 2020 (Case 1:20-cv-

02792-APM), and Prairie Band Potawatomi participated as amici curiae.

In a decision issued on January 5, 2021, the D.C. Circuit reversed this Court’s holding on

reviewability and on the denial of the preliminary injunction. Shawnee Tribe v. Mnuchin et al.,

984 F.3d 94, 99-100 (D.C. Cir. 2021). The D.C. Circuit not only found that the Government’s

decision on the allocation of Title V funds was reviewable (id. at 99-101), but also previewed the

merits of the case as part of its preliminary injunction analysis. The D.C. Circuit first called

attention to the idiosyncrasies of the IHBG Data:

The IHBG data does not reflect actual tribal enrollment. Instead, it estimates
a tribe's “population” in a geographical “formula area” based on population
numbers drawn from census projections of the number of individuals who
consider themselves “American Indian or Alaska Native” on census forms.
See 24 C.F.R. §§ 1000.302, 1000.330; see also May 5 Document at 2. A
Tribal government's formula area is defined to be its formula area as it
existed in 2003, any of its land that falls into nine categories (including
“reservations for federally recognized Indian tribes”), and any other areas
added by application of the Tribe and at HUD's discretion. See 24 C.F.R. §
1000.302. A formula area, the Secretary explained, “corresponds broadly
with the area of a Tribal government's jurisdiction and other areas to which
the Tribal government's provision of services and economic influence
extend.” May 5 Document at 2–3. Because the IHBG data does not reflect
actual enrollment, a tribe's IHBG “population” sometimes exceeds its actual
enrollment numbers. 24 C.F.R. § 1000.302. A tribe's IHBG formula area
population is thus capped at twice its “enrolled population.” Id. §
1000.302(5).

Id. at 97.

As to the merits, the court observed:

The Secretary chose the IHBG formula area population data as a proxy for
“increased expenditures.” But as the Tribe points out, and as the record
demonstrates, the IHBG formula area population data is, at least with
respect to some tribes, an unsuitable proxy. Even though the Shawnee Tribe
alleges (unchallenged by the Secretary) that it has 3,021 enrolled members
and that it had expenditures of some $6.65 million in 2019, the IHBG
formula area population data indicates that the Tribe had a population of
zero. As a result, the Tribe received the minimum payment of $100,000,
even though it “has incurred significant medical and public health expenses

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in responding to the devastation resulting from the COVID-19 pandemic”
by, for instance, “provid[ing] essential services to its citizens residing on-
reservation and off-reservation.” The same is likely true for amicus the
Miccosukee Tribe—according to its brief, it has 605 enrolled members yet
the IHBG data indicates it had zero population—as well as for the Eastern
Delaware Band of Indians, which, according to the IHBG data table, had a
HUD enrollment figure of 11,014 but a population of zero. Moreover, the
Secretary himself acknowledged that the IHBG data was inadequate as a
proxy for increased expenditures in some cases when he requested
population data from HUD for three tribes that did not participate in the
IHBG program…yet he failed to do the same for the Shawnee Tribe, which
also does not participate in the program. Nor did the Secretary explain why
he failed to seek alternative information for the Shawnee Tribe or the
twenty-four other tribes with no IHBG population. On this record, then, the
Shawnee Tribe is likely to succeed in its claim that the IHBG data is not a
suitable proxy for “increased expenditures.”

Id. at 102 (internal citation omitted). Based on this analysis, the D.C. Circuit remanded the case to

this Court for the prompt entry of a preliminary injunction in favor of the Shawnee plaintiff. Id. at

103.

On January 4, 2021, Prairie Band Potawatomi refiled its APA challenge on the same

grounds as its original complaint that was voluntarily discontinued. (Prairie Band Potawatomi

Nation v. Mnuchin, 1:21-cv-00012 (D.D.C.) (Dkt. 1).

After remand, on January 14, 2021, this Court entered a preliminary injunction in favor of

Shawnee (Dkt. 55). This Court then consolidated the Miccosukee and Prairie Band Potawatomi

cases into Shawnee. All three (3) Plaintiffs now jointly move for summary judgment.

IV. LAW AND ARGUMENT

A. Standard of Review

The APA authorizes judicial review of federal agency action. 5 U.S.C. § 702. The

reviewing court shall hold unlawful and set aside agency action that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,” (5 U.S.C. § 706(2)(A)), or that fails

to observe procedure required by law (5 U.S.C. § 706(2)(D)).

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The role of the court under the APA is to “ensur[e] that agencies have engaged in reasoned

decision making.” Judulang v. Holder, 565 U.S. 42, 53 (2011). Courts must review “whether the

agency examined the relevant data and articulated a satisfactory explanation for its action including

a rational connection between the facts found and the choice made, and whether the decision was

based on a consideration of the relevant factors and whether there has been a clear error of

judgment.” Mozilla Corp. v. Fed. Commc'ns Comm'n, 940 F.3d 1, 49 (D.C. Cir. 2019) (internal

quotations omitted). As follows, “where the agency has failed to provide a reasoned explanation,

or where the record belies the agency's conclusion, [the courts] must undo its action.” BellSouth

Corp. v. F.C.C., 162 F.3d 1215, 1222 (D.C. Cir. 1999) (citation and quotation omitted). “The

agency's statement must be one of reasoning; it must not be just a conclusion; it must articulate a

satisfactory explanation for its action.” Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir.

2010) (internal quotations omitted).

Violations of the arbitrary and capricious standard under the APA can take many forms.

For example, if the agency fails to provide a factual basis upon which a court may conclude that

the agency has actually engaged in reasoned decision-making, it has violated the APA. Swedish

Am. Hosp. v. Sebelius, 773 F. Supp. 2d 1, 14 (D.D.C. 2011) (requiring an explanation for a

challenged action); see A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995) (noting

that an agency is required to explain its decision so the court can fulfill its duty of ensuring non-

arbitrary decision-making under the APA). Moreover, an agency that transparently engages in

policymaking, but arrives at its discretionary decision “by Ouija board or dart board,

rock/paper/scissors, or even the Magic 8 Ball” has still violated the APA’s arbitrariness prohibition

because its policy determination was not a reasoned one. Make the Rd. N.Y. v. McAleenan

(“MTRNY”), 405 F. Supp. 3d 1, 47 (D.D.C. 2019), rev’d on other grounds sub nom., Make the

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Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020). An agency similarly violates the APA if it

“entirely fail[s] to consider an important aspect of the problem,” or if its decision “runs counter to

the evidence before the agency, or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Dep’t of Homeland Sec. v. Regents of the Univ. of

Cal., ––– U.S. ––––, 140 S.Ct. 1891, 1910 (2020); see also Nat. Res. Def. Council v. U.S. E.P.A.,

808 F.3d 556, 574 (2d Cir. 2015) (overturning agency decision as arbitrary and capricious because

it failed to consider an “important aspect of the problem,” among other reasons).

Nor may agencies rely on one-sided or unsuitable data, particularly where superior data is

available, as was the case here. This fundamental principle has been reinforced by courts

repeatedly. Recently, in Genuine Parts Co. v. Envtl. Prot. Agency, 890 F.3d 304, 313 (D.C. Cir.

2018), this Court held that “[i]t was arbitrary and capricious for [the agency] to rely on portions of

studies in the record that support its position, while ignoring cross sections in those studies that do

not.” Likewise, in Lakeland Bus Lines, Inc. v. N.L.R.B., 347 F.3d 955, 962-63 (D.C. Cir. 2003),

the Court reversed an agency’s decision on unfair labor practices because it failed “to take account

of contradictory evidence” and engaged in a “clipped view of the record it chose to take.” And in

Guindon v. Pritzker, 31 F. Supp. 3d 169, 195 (D.D.C. 2014), the district court stated that an agency

may not “disregard superior data in reaching its conclusion,” and held that the agency’s final rule

was arbitrary and capricious when it did.3

3
Even the Government’s use of outdated data has been found to be arbitrary and capricious. Saint
Francis Med. Ctr. v. Azar, 894 F.3d 290, 297-98 (D.C. Cir. 2018) (vacating federal agency’s rule
as arbitrary and capricious where it relied on outdated data to support its decision to reimburse
hospitals at a historically low rate).

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“Under any of these circumstances, it is the court’s obligation to declare that the challenged

rule is procedurally unlawful, and to vacate the agency’s action under section 706(2)(A) of the

APA.” See Regents, 140 S.Ct. at 1910; see also In re Roman Catholic Church of Archdiocese of

Santa Fe, 615 B.R. 644, 653 (Bankr. D.N.M. 2020) (noting, in the context of the CARES Act,

“courts retain an important role ‘in ensuring the agencies have engaged in reasoned

decisionmaking’ by examining the reasons for the agency decisions, or lack thereof, and

determining ‘whether the decision was based on consideration of the relevant factors and whether

there has been a clear error of judgment’”) (quoting Judulang, 565 U.S. at 53).

There is absolutely no genuine issue of material fact that the Government’s use of the IHBG

Data was arbitrary and capricious because: (1) the D.C. Circuit has already said so, which is now

the law of the case; and (2) in any event, the Government’s decision to use such data on its face

was implausible, has no basis in reasoned-decisionmaking or in the administrative record, fails to

consider an important aspect of the problem and amounts to nothing more than picking a card out

of a hat. This Court should enter summary judgment in favor of Plaintiffs.

B. The D.C. Circuit has already concluded that the IHBG Data was not a
Suitable Proxy for Increased Expenditures for Some Tribes, Including Those
at Issue Here.

No ruling other than finding the Government acted arbitrary and capricious would be

consistent with the spirit of the D.C. Circuit’s opinion that the IHBG Data was an unsuitable proxy

for some tribes, including the Shawnee at issue before it. The law-of-the-case doctrine dictates that

“the same issue presented a second time in the same case in the same court should lead to the same

result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis omitted).

The so-called “mandate rule” is a “more powerful version of the law-of-the-case doctrine, which

prevents courts from reconsidering issues that have already been decided in the same case.” Am.

Council of Blind v. Mnuchin, 977 F.3d 1, 5 (D.C. Cir. 2020) (citing Briggs v. Pa. R.R. Co., 334

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U.S. 304, 306 (1948); Indep. Petroleum Ass'n of Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir.

2001) (internal quotation marks omitted)). Importantly, the district court cannot “fashion[] a

remedy that is ‘inconsistent with either the spirit or express terms’” of an appellate court

holding. Id. (citation omitted and emphasis added).

The spirit of the D.C. Circuit’s ruling that the Government’s use of IHBG Data was

inappropriate for some Tribes, including the Shawnee before it, dictates entry of summary

judgment here. In its careful analysis, the D.C. Circuit has already concluded that the IHBG Data

“is, at least with respect to some tribes, an unsuitable proxy” for increased expenditures, which

applies to the zero population and grossly undercounted Plaintiffs in this lawsuit alike. Shawnee,

984 F.3d at 102. The D.C. Circuit identified absurdities caused by the Government’s blind belief

that tribes like Miccosukee and Shawnee could, at once, have COVID-related obligations to zero

citizens, while simultaneously possessing knowledge of their substantial population and 2019

expenditures. As the D.C. Circuit noted, the Government’s harsh treatment of the zero tribes, like

Shawnee and Miccosukee, was not based on reasoned decision-making or cost-benefit analysis,

but on apparent ignorance of the shortcomings of the gerrymandered IHBG Data.

Critically, the D.C. Circuit cited the special accommodations that the Government

extended to three tribes that had opted out of the IHBG program but the Government failed –

without reason or explanation in the record – to extend the same treatment to Shawnee. Id. at 102.

The Government’s special accommodation of these tribes (Chicken Ranch, Mohegan and Prairie

Island) demonstrates that the Government had the will, resources and time to deviate from the

IHBG Data. The Government, however, arbitrarily failed to extend similar accommodation to the

greater number of Tribal governments that were zeroed out in the IHBG Data, like Shawnee and

Miccosukee, or tribes like Prairie Band Potawatomi, who were egregiously undercounted. With

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the expert guidance of BIA and the accurate data timely supplied by Shawnee, Miccosukee and

Prairie Band Potawatomi, these arbitrary impacts were just as knowable (if not known) to the

Government and they were far more impactful on the equitable distribution of funds to offset

increased expenditures faced by Tribal governments. The fact that many Tribal governments with

substantial operations had a zero or minimal IHBG Data was strong prima facie evidence that the

IHBG Data was an improper proxy for expenditures. Based on these zeroes alone, the Government

should have immediately realized that the IHBG Data was obviously factually wrong, which made

it unreasonable and irrational to use as a metric for the CARES Act funding. Thus, any ruling other

than the Government acted arbitrary and capricious would not comport with the plain language or

spirit of D.C. Circuit’s holding.

C. Even if this Court were to embark on independent analysis of the
Government’s actions, the Government’s use of the IHBG Data was
arbitrary and capricious as a matter of law.

1. The Government’s use of IHBG Data on its face was so implausible
that it was arbitrary and capricious.

There is no dispute in this case that the Shawnee and Miccosukee still exist, which it could

not if it had a tribal population of zero as the Government contends. Both Tribes are federally

recognized tribes that have existed since time immemorial. The Government determined that the

population of the Shawnee and Miccosukee was zero after it had received the Actual Certified

Enrollment Data it defined and requested under the auspices that it was necessary to determine

CARES Act Population Awards. Stated differently, the Government has never disputed before this

Court or the D.C. Circuit – and it cannot dispute it now – that the Shawnee’s and Miccosukee's

populations are not zero nor has it disputed the accuracy of the Certified Enrollment Data. The

Administrative Record is also devoid of any discussion about the tribes that showed a zero

population in the IHBG data. The Government's own record reflects an abject lack of analysis,

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deliberation, or other evidence to support its decision to purposefully use objectively false data -

instead of the Certified Enrollment Data - in awarding the minimum funds to the Shawnee and

Miccosukee. Thus, this decision was “so implausible that it could not be ascribed to a difference

in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at

43. There is no dispute in this case that the Shawnee Tribe and Miccosukee still exists, which it

could not if it had a tribal population of zero. This is quintessential arbitrary and capricious agency

action.

2. The Government’s use of IHBG Data runs counter to all the available
evidence the Government had before it; thus, it was arbitrary and
capricious.

Similarly, there is no dispute that the Government’s use of the IHBG Data runs directly

counter to the evidence before the agency, namely, the certified population data it requested and

received. Though the Government already had the Plaintiffs’ accurate and certified population data

from two separate reliable sources, namely, the BIA within Interior and the Tribes themselves,

they elected to instead use the inaccurate IHBG population data. This decision resulted in the false

finding that the Shawnee and Miccosukee had been depopulated, which is legally and factually

impossible, and reduced the Prairie Band Potawatomi population by over 83%. Ironically, the

Government ignored the data from the very same organizations with whom Title V expressly

required it to consult – the Interior and tribes. Even the District Court noted the curious nature of

the Government’s actions, which wholly lacks explanation. See Agua Caliente, 2020 WL 2331774,

at *7 (“Plaintiffs are rightly upset … [where] the 60% distribution made by the agency relied not

on data obtained from Indian tribes in the last few weeks, but on population data from [HUD] that

was publicly available before the pandemic struck”). There is no dispute in this case that the

Government had superior data available to determine the Shawnee and Miccosukee were not

extinct, and Prairie Ban Potawatomi near extinct, for the purposes of Title V funding but it

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disregarded it, which is arbitrary and capricious. Guindon, 31 F. Supp. 3d at 195.

Nor has the Government proffered any sound explanation for ignoring the population data

it requested and received. Although the Government determined that “[t]ribal enrollment” data in

the IHBG table was inaccurate, it never explained how or why it ignored the Certified Tribal

Enrollment Data it requested and received. More importantly, the Government has never explained

why the data it requested and received was ignored in favor of IHBG Data that is obviously false

and effectively renders some, but not others, extinct or grossly reduced for the purposes of Title V

funding. The administrative record is devoid of any underlying explanation, discussion or analysis

about the treatment of tribes with obviously false data. This lack of explanation alone is arbitrary

and capricious. See A.L. Pharma, Inc., 62 F.3d at 1491 (noting an agency is required to explain its

decision); Swedish Am. Hosp., 773 F. Supp. at 14 (requiring explanation for a challenged action).

Instead, the Government relied on the unsupported assertions that Tribal governments are

“familiar with [the IHBG population metric] and already have been provided the opportunity to

scrutinize and challenge its accuracy,” which the Government asserted, in conclusory fashion, was

“reliable and consistently-prepared.” (Id.). The Government never provided support for these

assertions -and there is none in the administrative record - as is required for reasoned decision-

making. See Mozilla Corp., 940 F.3d at 49.

In fact, these assertions are contradicted by the IHBG Data itself. According to the

Government’s own tabulation, twenty-five tribes have a population of zero in the IHBG population

count. (See generally Exhibit K). And tribes like the Prairie Band Potawatomi are assigned an

artificial population of 747 rather than their Certified Tribal Enrollment Data of 4,561. The IHBG

Data, therefore, plainly and directly refutes the Government’s explanation for using this data,

which rests solely on its assertion that Tribal governments have familiarity with the metric and

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that the data are reliable. (Exhibit G, p. 2). Indeed, the IHBG Data contains no data, let alone

reliable data (id.), for four percent of the Tribal governments for which IHBG Data is maintained.

(Id.).

In the end, the Government’s reliance on the IHBG Data – based on a rationale that was

contradicted by the IHBG Data itself – was arbitrary and capricious. See Hogen, 613 F.3d at 190

(D.C. Cir. 2010) (overturning Interior land-into-trust action that relied on a basis contradicting

other information in the record); Shalala, 192 F.3d at 1005 (vacating and remanding HHS

determination regarding Medicare payments that provided inadequate rationale and failed to

consider more recent information). The Government had no more basis to use the IHBG Data than

to use the number of McDonald’s located within Plaintiffs’ tribal lands and is arbitrary and

capricious. This amounts to nothing more than pulling numbers out of the sky. See, e.g., Judulang

v. Holder at 55 (holding that, even where BIA has discretion to make decisions, “it must do so in

some rational way. If the BIA proposed to [make its decision] . . . by flipping a coin . . . we would

reverse the policy in an instant.”); Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650,

660 (D.C. Cir. 2011) (“If an agency fails or refuses to deploy [its] expertise—for example, by

simply picking a permissible interpretation out of a hat—it deserves no deference.”). Flipping a

coin or picking a number out of a hat would have yielded no less inaccurate population figures for

Plaintiffs than what the Government did in this case, which is fatal to the Government’s merits

case.4

4
The fact that housing and transportation programs use this data is irrelevant and runs directly
counter to Title V’s objective. Title V awards were directed by Congress to compensate tribes for
“increased expenditures related” to COVID-19. Nowhere in Title V does it state that only those
tribes who have a housing or transportation programs are entitled to funds (again, a “who”
decision), or that participation in those programs is a prerequisite to getting funds for increased
COVID-19 expenses. Indeed, the fact that the HUD data was created for elective program awards

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3. The Government failed to consider an important aspect of the problem
when rendering its decision.

Critically, the Government “entirely fail[ed] to consider an important aspect of the

problem” when its decision effectively rendered Plaintiffs extinct or near extinct, and resulted in

unreasonably insufficient funding to the Tribe. Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S.

at 43; Regents, 140 S.Ct. at 1904-05. It is axiomatic that a depopulated tribe cannot exist, let alone

incur any expenses at all – including $100,000 worth of expenses, which is the minimum payment

the Government provided to tribes with zero population – again a legal and factual impossibility.

The mere fact that the Government distributed funds to a tribe that it claims does not exist

demonstrates the $100,000 is not “based” on COVID-19 related expenses at all and, thus, fails to

meet Title V statutory objectives. The Government’s decisionmaking, even where discretionary,

violates the APA arbitrariness prohibiting when it amounts to nothing more than “by Ouija board

or dart board, rock/paper/scissors, or even the Magic 8 Ball.” MTRNY, 405 F. Supp. 3d at 47

(D.D.C. 2019).5 The Government has acted arbitrarily and capriciously, and fundamentally failed

to honor Congress’ intent as enacted in Title V.

D. The Government Ignored Better Metrics that Would Have Actually
Captured Tribal Population and that Would have Been More Consistent
with Increased Expenditures

Where agencies fail to consider information available to them that may better serve their

needs, or fail to articulate a satisfactory rationale for not relying upon that information, their actions

is illustrative of the fact that it is entirely unrelated to Title V objectives to compensate for non-
elective COVID-19 expenses.
5
There is also no dispute that the Government failed to consult with Plaintiffs with respect to the
decision to use the objectively false IHBG population data. Instead, the Government claims they
did not have to, despite express language requiring it to consult the tribes in determining CARES
Act awards and their admission they are not the experts. The Government has independently failed
to provide any valid basis for their failure to meet this objective of the statute, which does not
piecemeal or diminish in any way the Government’s duty to consult.

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will not be sustained. Butte, 613 F.3d at 194 (overturning agency action where agency failed to

explain why it rejected information); Alpharma, Inc. v. Leavitt, 460 F.3d 1, 11 (D.C. Cir. 2006)

(remanding FDA action where agency failed to state its rationale); Shalala, 192 F.3d at 1005

(vacating and remanding HHS determination regarding Medicare payments that provided

inadequate rationale and failed to consider more recent information).

For the reasons set forth above, the IHBG Data is not suitable for the Government’s own

stated purpose of making the Population Award on the basis of Tribal population. The

Government’s choice of the IHBG Data is even more arbitrary and capricious because the

Government possessed at least two additional sources of data that were superior to the IHBG Data

for the purpose of estimating population, the factor that the Government itself determined would

predict increased expenditures due to COVID-19.

First, HUD regularly maintains the HUD Enrollment Data. (Exhibit K (Column:

“Enrollment”.) The Government had access to this regularly maintained alternative metric that

relied on a far superior methodology (i.e., actual Tribal population) and possessed at least the same

indicia of reliability that the Government praised regarding the IHBG Data. (Allocation Document

(Exhibit H, p. 2). Second, the Government could have relied on the Certified Tribal Enrollment

Data that the Government itself solicited from Tribal governments in connection with the

allocation of Title V Funds.

Taken together, the Government had two more recent, more relevant and equally reliable

metrics to use. The Government did not adopt these and the Government’s decision failed to

document - as reflected in the administrative record - any consideration of them. The

Government’s allocation was therefore arbitrary and capricious. Butte, 613 F.3d at 194; Alpharma,

Inc. v. Leavitt, 460 F.3d at 11; Shalala, 62 F.3d at 1491.

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E. The Administrative Record Provides No Support for the Government’s
Selection of the IHBG Data.

The Government’s administrative record produced to this Court is completely devoid of

any rational explanation for the Government’s selection and use of the IHBG Data. The

Government had a statutory obligation to consult with the Department of the Interior (through the

BIA) and Tribal governments. 42 U.S.C. §801(c)(7). The administrative record demonstrates that,

for the purpose of population, BIA preferred an enrollment approach. (Exhibit G, p.2).

In short, the Government’s selection of the IHBG Data comes from thin air. The

Government never advised tribes or anyone else that it would use the IHBG Data, nor did the

Government seek to confirm the accuracy or appropriateness of correlating population data with

Tribal governments, before the Government adopted the IHBG Data (Exhibit H) and made near

immediate distributions relying thereon. (Exhibit D (Rupnick Dec.), pp. 2-3, ¶ 8). In particular,

Tribal governments had no reason to expect that the Government would select the IHBG Data as

the basis for awarding funds, especially where Tribal governments had just submitted their

Certified Tribal Enrollment Data to the Government. (See Id., ¶¶ 7-8). Tribal governments were,

therefore, deprived of a reasonable opportunity to consult on the weaknesses of the metric the

Government selected. Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994) (“Something is not

a logical outgrowth of nothing. The notice of proposed rulemaking contains nothing, not the merest

hint, to suggest [the agency’s course of action].”).

Given such a failure to give Tribal governments notice of the basis for its allocation, the

Government effectively evaded its statutory obligation to consult with Tribal governments. It

therefore follows that this Court should vacate the Government’s allocation, as an arbitrary and

capricious action pursuant to 5 U.S.C. § 706(a) and as an action taken “without observance of

procedure required by law,” pursuant to 5 U.S.C.A. § 706(d). See Kooritzky, 17 F.3d at 1513.

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The Government similarly failed to observe its statutory obligation to confer with the

Secretary of the Interior. The Government ignored BIA’s recommendation to use Certified Tribal

Enrollment Data, then failed to even explain its reason for rejecting BIA’s recommended course

of action. The Government’s sophomoric praise for the IHBG Data cannot constitute meaningful

conferral or justify the Government’s veto of the course of action prescribed by an expert agency.

After all, the alleged strengths that the Government learned about IHBG were known to BIA when

BIA recommended Certified Tribal Enrollment Data. (Exhibit G, p. 2). The Government’s

unexplained rejection of federal agency expertise was arbitrary and capricious and separately

violated the Government’s obligation to confer with BIA.

F. The Court has Authority to Fashion a Remedy for Plaintiffs

1. The Court Has Equitable Authority to Order Specific Relief.

This Court has authority to compel the Government to disburse the monetary relief

mandated by the CARES Act. See Resolute Forest Prods. v. United States Dep’t of Agri., 219 F.

Supp. 3d 69, 80 (D.D.C. 2016) (granting Plaintiff’s specific relief against USDA and directing the

Secretary “to issue Plaintiff a full refund of its assessment.”); Cheyenne River Sioux Tribe v.

Kempthorne, 496 F. Supp. 2d 1059, 1068 (D.S.D. 2007) (ordering the Secretary of the Interior to

disburse withheld “$303,368 in SY 06-07 funds” under the Indian Self-Determination and

Education Assistance Act for failing to comply with declination statutes and regulations);

America’s Cmty. Bankers v. FDIC, 200 F.3d 822, 831 (D.C. Cir. 2000) (“if we found for [Plaintiff]

on the merits, we could order the FDIC to give them a credit against future FICO assessments as

opposed to a cash refund of past assessments.”); Cobell v. Norton, 240 F.3d 1081, 1107 (D.C. Cir.

2001) (rejecting argument that “insofar as plaintiffs sought relief under the APA, the district court

exceeded its power by ordering the Interior and Treasury Departments to take the specific actions

toward fulfilling their fiduciary obligations.”); Bronston v. Kemp, 722 F. Supp. 372, 378–79 (S.D.

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Ohio 1989) (finding that, under HUD program, “Plaintiffs are entitled to recover rent rebates . . .

in accordance with the provisions of 24 C.F.R. § 813.110(f)” and that “Plaintiffs’ request for

restitution of rent rebates is in the nature of an ‘equitable suit for specific monetary relief’ to which

there is no bar to recovery.”).

On the February 25, 2021 Status Conference before this Court, the Government argued that

the only available remedy was a remand, citing North Carolina Fisheries Association v. Gutierrez.

550 F.3d 16 (D.C. Cir. 2008). In North Carolina Fisheries Association, the D.C. District Court

held that the Department of Commerce “had not complied with its statutory obligation” to design

a fishing plan” and ordered the Parties to confer on an appropriate remedy. Id. at 17. The D.C.

Circuit disagreed with the District Court, reasoning that “the district court, sitting as a court in

review of agency action under the Act and APA, should have done what a court of appeals

normally does when it identifies an agency error: remand to the agency for further proceedings.”

Id. at 20 (emphasis added). It continued “[o]nly in extraordinary circumstances do we issue

detailed remedial orders, and this maxim applies equally to district courts acting in an agency

review capacity.” Id. (emphasis added). The Plaintiffs’ COVID-19 related litigation falls squarely

within the exception noted in North Carolina Fisheries Association. Few circumstances could be

more extraordinary than here where available funds have been designated to mitigate the effects

of a once-in-a-century pandemic and can be immediately directed to Plaintiffs.

The Court should exercise its equitable authority under the APA to address these

extraordinary circumstances by compelling the monetary relief mandated by the CARES Act. The

APA empowers the Court to review “final agency action for which there is no other adequate

remedy in a court” and to issue remedies “other than money damages.” 5 U.S.C. §§ 702, 704.

Here, “not every award of money qualifies as ‘money damages’ for purposes of the APA.”

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ITSServe All., Inc. v. Cuccinelli, --- F. Supp. 3d ---, 2020 WL 6743020, at *4 (D.D.C. Nov. 17,

2020) (Mehta, J.). In the seminal case Bowen v. Massachusetts, 487 U.S. 879 (1988), the Supreme

Court held that courts have authority to issue monetary remedies under the APA if they fall outside

the definition of “money damages.” Id. at 893. In so ruling, the Supreme Court drew a sharp

distinction between “money damages” (which substitute for a loss) and the equitable remedy of

specific performance (which mandates monetary payments required by statute):

Damages are given to the plaintiff to substitute for a suffered loss, whereas
specific remedies “are not substitute remedies at all, but attempt to give
the plaintiff the very thing to which he was entitled.”

Id. at 895 (citation omitted). A court has authority to order monetary payment under the APA if

the suit “seeks[s] to enforce the statutory mandate itself, which happens to be one for the payment

of money” and does not seek “money in compensation for the damage sustained by the failure of

the Federal Government to pay as mandated.” Id. at 900 (emphasis in original). Put another way,

“[w]here a plaintiff seeks an award of funds to which it claims entitlement under a statute, the

plaintiff seeks specific relief, not damages” and the Court can award that specific relief under the

APA. Am.’s Cmty. Bankers v. Fed. Deposit Ins. Corp., 200 F.3d 822, 829 (D.C. Cir. 2000); accord

ITSServe Alliance, --- F. Supp. 3d ---, 2020 WL 6743020, at *15–16.6

Here the Court has authority to order the distribution of money as a remedy in this case, to

enforce the CARES Act mandate that the Government “shall pay” the appropriated CARES Act

6
By contrast, claims that do seek money damages against the United States must be pursued under
the Tucker Act and (if over $10,000) exclusively in the Court of Federal Claims. 28 U.S.C.
§§ 1346(a)(2), 1491(a); see also 28 U.S.C. § 1505 (expressly extending Tucker Act jurisdiction
to claims by Indian Tribes). Tucker Act claims for money damages and APA claims for monetary
relief are mutually exclusive. The APA covers claims “for which there is no other adequate
remedy.” 5 U.S.C. § 704. When no adequate remedy exists under the Tucker Act (because the
claim is not for “money damages”), there is a remedy under the APA. Conversely, when an
adequate remedy does exist under the Tucker Act (because the claim is for “money damages”),
there is no APA remedy.

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funds to Tribal governments “not later than 30 days after” March 27, 2020. 42 U.S.C. § 801(b)(1).

Indeed, this Court evidently already has decided that it has such authority. In Agua Caliente, the

Court issued a monetary-relief order under the APA to enforce that very same statutory mandate,

by “compelling the Secretary to distribute . . . [CARES Act] funds.” Agua Caliente Band of

Cahuilla Indians, et al., Case No. 20-cv-01136 (APM), 2020 WL 3250701, at *8.

Such monetary relief is proper under the APA, because it is not an award of “money

damages.” The recent decision in Lummi Tribe of the Lummi Reservation v. United States strongly

supports this conclusion. 870 F.3d 1313, 1320 (Fed. Cir. 2017). In Lummi, the Federal Circuit

reviewed an analogous claim for monetary relief under the same Indian Housing Block Grant

(“IHBG”) program implicated by the Government’s methodology in the present case. The plaintiff

tribes in Lummi had received IHBG grants which — like the CARES Act distributions at issue

here — had to be spent only on activities specified in the statute. The defendant agency (HUD)

alleged that the statutory restrictions had not been followed, claimed the plaintiff tribes had been

overpaid as a result, and offset the alleged overpayments against future grants to the same tribes.

The tribes sued to recoup the disputed grant money, arguing that “HUD improperly deprived them

of grant funds to which they were entitled” under the statute (id. at 1316) — just as plaintiffs claim

the Government has improperly deprived them of CARES Act funds to which it is entitled under

the CARES Act. The Federal Circuit held that the claims in Lummi were for equitable relief, not

“money damages,” because the plaintiffs sought a remedy for having “been allocated too little in

grant funding.” Id. at 1318. Here, plaintiffs seek a directly analogous equitable remedy for an

under-allocation of CARES Act funds (properly asserted under the APA), not money damages.

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2. The Court’s Specific Relief Should Direct Distributions to Plaintiffs
That Would Treat Them the Same as Other Tribes with Equivalent
Populations.

The Court’s specific relief should direct CARES Act distributions to Plaintiffs that would

treat them the same as other tribes with equivalent populations. A “fundamental norm of

administrative procedure requires an agency to treat like cases alike.” Westar Energy, Inc. v. Fed.

Energy Regul. Comm’n, 473 F.3d 1239, 1241 (D.C. Cir. 2007). It is axiomatic that an agency must

treat similarly-situated parties the same way unless there is a legitimate rationale for treating them

differently. See, e.g., Kreis v. Sec’y of the Air Force, 406 F.3d 684, 687 (D.C. Cir. 2007) (“[A]n

agency must treat similar cases in a similar manner unless it can provide a legitimate reason for

failing to do so.”); Seaworld of Fla., LLC v. Perez, 748 F.3d 1202, 1221 (D.C. Cir. 2014) (“treating

similar cases dissimilarly [is] the paradigmatic arbitrary and capricious agency action”).

Here there is no legitimate basis for distinguishing the Plaintiff tribes from other tribes with

equivalent populations who received larger distributions. The Court, therefore, should direct the

Government to make distributions to Plaintiffs that (when combined with population-based

distributions previously received) are the same as those made to other tribes with equivalent

populations. The Court should further direct that the population determinations as to the Plaintiffs

must be made with reliable, objective data (such as Certified Enrollment data) and not with data

from the IHBG database.

CONCLUSION

Based on the foregoing and pursuant to Federal Rule of Civil Procedure 56, this Court

should grant judgment to Plaintiffs and direct the Government to distribute Title V funds to

Plaintiffs in reliance on reliable, objective data and in proportion to the manner in which the

Government directed funds to Tribal governments with equivalent populations.

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Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 30 of 33

Respectfully submitted this 2nd 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

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

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Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 31 of 33

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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Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 32 of 33

CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that on the 2nd 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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Case 1:20-cv-01999-APM Document 70 Filed 04/02/21 Page 33 of 33

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