Agua Caliente Band of Cahuilla Indians v. Mnuchin

• Decision Date: 11 May 2020
• Docket Number: Case No. 20-cv-01136 (APM)
• Parties: AGUA CALIENTE BAND OF CAHUILLA INDIANS, et al., Plaintiffs, v. STEVEN MNUCHIN, in his official capacity as Secretary of the Treasury, Defendant.
• Court: U.S. District Court — District of Columbia

AGUA CALIENTE BAND OF CAHUILLA INDIANS, et al., Plaintiffs, v. STEVEN MNUCHIN, in his official capacity as Secretary of the Treasury, Defendant.

Case No. 20-cv-01136 (APM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 11, 2020

MEMORANDUM OPINION AND ORDER

For the second time in as many weeks, the court confronts a challenge to the Secretary of the Department of the Treasury's ("Secretary") disbursement of emergency funds to Tribal governments under Title V of the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act. In the CARES Act, Congress set aside $8 billion in emergency aid for "Tribal governments" to address the COVID-19 pandemic, and it required the Secretary to disburse those funds "not later than 30 days after March 27, 2020"—that is, by April 26, 2020. 42 U.S.C. § 801(b)(1).

This court previously reviewed a challenge brought by various Indian tribes posing the question of who is eligible to receive Title V emergency funds. See Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, Case No. 20-cv-01002 (APM). Now, a different group of Indian tribes challenges when the Secretary intends to disburse the funds. When Plaintiffs initially filed this lawsuit on April 30, 2020, the Secretary had not disbursed any emergency funds to any Tribal government. Since then, however, he has disbursed 60% of the $8 billion Congress set aside for them. Notwithstanding this partial disbursement, Plaintiffs move for a temporary restraining order, preliminary injunction, and emergency writ of mandamus directing the Secretary to immediately disburse all CARES Act funds to Plaintiffs and other Tribal governments.

As explained more fully below, the court denies Plaintiffs' motion without prejudice. Undoubtedly, the COVID-19 pandemic presents a national public health emergency that is without precedent in modern times, and the Title V funds at issue are clearly needed by Indian tribes to combat the pandemic's effects. Plaintiffs, however, have not carried their burden to show that the Secretary's delay thus far is so egregious as to warrant mandamus relief today. But that does not mean the Secretary enjoys an indefinite period to carry out Congress's command. This matter remains pending, and Plaintiffs are free to renew their motion should the Secretary continue to delay in distributing the remaining emergency funds.

I.

A. Background

1. The CARES Act

Congress enacted the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act" or "Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020), to respond to the devastating impacts of the COVID-19 pandemic. Title V of the Act appropriates $150 billion for fiscal year 2020 for "payments to States, Tribal governments, and units of local government," 42 U.S.C. § 801(a)(1), with $8 billion of that sum "reserve[d] . . . for making payments to Tribal governments." Id. § 801(a)(2)(B). The Act requires the Secretary of the United States Department of the Treasury to disburse the Title V funds to Tribal governments "not later than 30 days after March 27, 2020"—that is, by April 26, 2020. Id. § 801(b)(1). The Act further instructs that the funds are intended:

to cover only those costs of the State, Tribal government, or unit of local government that - (1) are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID-19); (2) were not accounted for in the budgetmost recently approved as of enactment of this section for the State or government; and (3) were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.

Id. § 801(d).

2. Factual and Procedural Background

On April 13, 2020, the Secretary published on the Treasury Department's website a form titled "Certification for Requested Tribal Data" ("Certification"), asking that eligible Tribal governments submit certain data by April 17, 2020, to effectuate the disbursement of CARES Act funds. See Confederated Tribes of the Chehalis Reservation v. Mnuchin, Case No. 20-cv-01002 (APM), Case No. 20-cv-01059 (APM), Case No. 20-cv-01070 (APM), 2020 WL 1984297, at *3 (D.D.C. Apr. 27, 2020)¹; Am. Compl., ECF No. 11, at ¶¶ 26-27. Plaintiffs in this case—the Agua Caliente Band of Cahuilla Indians, the Ak-Chin Indian Community, the Arapaho Tribe of the Wind River Reservation, the Cherokee Nation, the Chicksaw Nation, the Choctaw Nation of Oklahoma, the Snoqualmie Indian Tribe, and the Yurok Tribe of the Yurok Reservation ("Plaintiffs")—submitted the required certifications before the April 17, 2020, deadline. See Am. Compl. at ¶ 27.

Despite having collected data that he said would aid in the allocation and distribution of Title V funds, the Secretary missed the April 26, 2020, payment deadline. Id. ¶ 4. Plaintiffs filedthis suit four days later, on April 30, 2020, see Compl., ECF No. 1, asserting claims under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Mandamus Act, 28 U.S.C. § 1361, id. ¶ 6. Plaintiffs filed a Motion for a Temporary Restraining, Preliminary Injunction, and Emergency Writ of Mandamus the following day, see Pls.' Mot. for TRO, Prelim. Inj., and Emergency Writ of Mandamus, ECF No. 4, and amended the motion to add Plaintiffs Chickasaw Nation and Choctaw Nation of Oklahoma on May 3, 2020, see Pls.' Am. Mot. for TRO, Prelim. Inj., and Emergency Writ of Mandamus, ECF No. 12 [hereinafter Pls.' Mot.]. Plaintiffs assert that the Secretary's failure to act by the statutory deadline justifies an order of injunctive relief or writ of mandamus "directing the Secretary to immediately disburse" the Title V funds as directed by Congress. Id. at 3, 14.

Before briefing on Plaintiffs' motion concluded, the Secretary started making payments to Tribal governments. On May 5, 2020, the Secretary announced that he would immediately begin to distribute $4.8 billion, or 60%, of the appropriated emergency funds to Tribal governments. See U.S. DEP'T OF TREASURY, Coronavirus Relief Fund Allocations to Tribal Governments (May 5, 2020), at 2.² The Secretary explained that the Treasury Department "ha[d] determined to distribute 60 percent of the $8 billion reserved for Tribal governments immediately based on population." Id. The population data came from the Department of Housing and Urban Development's Indian Housing Block Grant program, not from the agency's own data collection efforts. Id.

The Secretary offered no target date by which he would distribute the balance of the Title V funds. See generally id. He indicated, however, that the remaining allocation would be "based on employment and expenditures data of Tribes and tribally-owned entities," and that the agency"intends to request additional information in the near future from Tribal governments as to their employment and expenditures." Id. at 2. The Secretary stated that he would disburse the remaining funds "after data on employment and expenditures are received, reasonably verified, and accounted for in the allocation formula." Id.

The Secretary filed his opposition to Plaintiffs' emergency motion the day after he began disbursing funds. See Def.'s Opp'n to Pls.' Am. Mot. for TRO and Prelim. Inj., ECF No. 26 [hereinafter Def.'s Opp'n]. The court heard argument on Plaintiffs' motion on May 8, 2020. See 1:20-cv-01136 (APM), Minute Entry, 5/8/2020.

II.

Preliminary injunctive relief is an "extraordinary and drastic remedy" that is "never awarded as [a matter] of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations and internal quotation marks omitted). A court may only grant the "extraordinary remedy . . . upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Specifically, Plaintiffs must show that they are: (1) "likely to succeed on the merits"; (2) "likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in [their] favor"; and (4) "an injunction is in the public interest." Winter, 555 U.S. at 20 (citations omitted). Where the federal government is the opposing party, the balance of equities and public interest factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009).

Courts in the D.C. Circuit evaluate the four preliminary injunction factors on a "sliding scale"—if a "movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor." Davis v. Pension Benefit Guar. Corp, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). Though the Supreme Court's decision in Winterv. Natural Resources Defense Council cast some doubt on this approach, see Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) ("[T]he old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is no longer controlling, or even viable." (internal quotation marks and citation omitted)), absent a D.C. Circuit or Supreme Court decision overruling it, the sliding scale framework remains binding precedent that this court must follow, see Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018) (explaining that the D.C. Circuit "has not yet decided whether Winter . . . is properly read to suggest a 'sliding scale' approach to weighing the four factors be abandoned"); United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) ("[D]istrict judges, like panels of [the D.C. Circuit], are obligated to follow controlling circuit precedent until either [the D.C. Circuit], sitting en banc, or the Supreme Court, overrule it.").

Accordingly, a plaintiff seeking preliminary injunctive relief "must make a 'clear showing that four factors, taken together, warrant relief.'" League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing Am.'s Greatness v. FEC, ...