Shawnee Tribe v. Mnuchin

480 F.Supp.3d 230

The SHAWNEE TRIBE, Plaintiff,

v.Steven T. MNUCHIN, in his official capacity as Secretary of Treasury, et al., Defendants.

Case No. 20-cv-1999 (APM)

United States District Court, District of Columbia.

Signed August 19, 2020

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

Plaintiff Shawnee Tribe asks the court for an order preliminarily enjoining the Secretary of the Department of Treasury ("Secretary") from distributing not less than $12 million in funds remaining of the $8 billion that Congress allocated under Title V of the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") to assist Tribal governments with expenditures incurred due to the COVID-19 pandemic. See Pl.’s Ex Parte Mot. for TRO, ECF No. 3 [hereinafter Pl.’s Mot.].¹ Plaintiff challenges the manner in which the Secretary allocated a portion of the $8 billion. Specifically, on May 5, 2020, the Department of Treasury announced that the first tranche of CARES Act funds disbursement would rely on "Tribal population data used by the Department of Housing and Urban Development (HUD) in connection with the Indian Housing Block Grant (IHBG) Program." See U.S. DEP'T OF TREASURY , Coronavirus Relief Fund Allocations to Tribal Governments (May 5, 2020) [hereinafter Allocation Mem.], at 2, available at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-Methodology.pdf (last accessed on August 18, 2020). Plaintiff contests the Secretary's selection of the HUD tribal population data as arbitrary and capricious in violation of the Administrative Procedure Act ("APA").

This is the second case to come before this court challenging the Secretary's use of the HUD tribal population data. In the first case, the Prairie Band Potawatomi Nation argued that the Secretary's decision to rely on the HUD tribal population data was arbitrary and capricious because it undercounted the tribe's actual population. See Prairie Band Potawatomi Nation v. Mnuchin , No. 20-cv-1491 (APM), 2020 WL 3402298 (D.D.C. June 11, 2020). The court denied the Prairie Band plaintiff's motion, in part, on the ground that the manner in which the Secretary allocated the lump-sum CARES Act appropriation was not a reviewable agency action under the APA. Id. at *1. Plaintiff Shawnee Tribe now attempts to avoid that conclusion, arguing not just that the HUD tribal population data was flawed, but that it was "objectively false" because it counts the Shawnee Tribe as having zero enrolled members when, in fact, the Tribe has more than 2,113 tribal citizens. See Pl.’s Mot. at 1–2.

The Shawnee Tribe's argument fares no better than the one asserted in Prairie Band . The Secretary's selection of the HUD tribal population data set, however imperfect it may be, is a discretionary agency action that is not subject to judicial review. For the reasons stated below, Plaintiff's motion for injunctive relief is denied.²

I.

In Prairie Band , this court held that the plaintiff had failed to demonstrate a likelihood of success on the merits because, under the Supreme Court's decision in Lincoln v. Vigil , "as long as an agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives, § 701(a)(2) of the APA gives the courts no leave to intrude. To that extent, the decision to allocate funds is committed to agency discretion by law." Prairie Band , 2020 WL 3402298, at *1 (cleaned up) (quoting Lincoln v. Vigil , 508 U.S. 182, 193, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) ). Because the plaintiff in Prairie Band had made no allegation that "the Secretary [had] allocated CARES Act funds for anything other than their stated statutory purpose," the court found that the population-based allocation was not subject to judicial review. Id. at *2.

Notwithstanding Prairie Band , Plaintiff Shawnee Tribe insists that the Secretary's selection of the HUD tribal population data is reviewable. It so argues for multiple reasons. First, it contends that this court in Prairie Band made a threshold error because it "failed to consider that the APA presumes review, even where lump sum appropriations are at issue." Pl.’s Reply in Supp. of Pl.’s Mot., ECF No. 23 [hereinafter Pl.’s Reply], at 5. That argument misstates the law. In this Circuit, a "presumption of non -reviewability" attaches to an agency's "allocation of funds from a lump-sum appropriation." See Physicians for Soc. Resp. v. Wheeler , 956 F.3d 634, 642 (D.C. Cir. 2020) (internal quotation marks omitted) (emphasis added). The court applies this presumption of non-reviewability here, just as it did in Prairie Band .

Next, Plaintiff maintains that this court's reliance on Vigil was misplaced. See Pl.’s Reply at 4. Plaintiff argues that, "[u]nlike in Vigil where there was no statutory language on the proper use or administration of the appropriated funds, Title V's statutory scheme does contain limitations on the allocation and use of funds, such that a reviewing court can discern the intent of Congress." Id. (citation omitted). But the CARES Act evinces no greater congressional intent to constrain agency action than the statutes at issue in Vigil . See Policy & Research, LLC v. Dep't of Health & Human Servs. , 313 F. Supp. 3d 62, 74 (D.D.C. 2018) (stating that where "an agency's action is presumptively un reviewable, [ ] the [c]ourt can only review the agency's decision if the ‘operative’ statute or regulations provide ‘clear guidelines by which to do so, or otherwise evince[s] an intent to constrain the [agency's] discretion.’ " (third and fourth alterations in original) (quoting Drake v. FAA , 291 F.3d 59, 71 (D.C. Cir. 2002) )). In Vigil , the statutes at issue concerned the delivery of health services to Indian tribes. One statute, the Snyder Act, authorized the Indian Health Service to " ‘expend such moneys as Congress from time to time [finds] appropriate, for the benefit, care, and assistances of the Indians,’ for the ‘relief of distress and conservation of health.’ " 508 U.S. at 185, 113 S.Ct. 2024 (quoting 25 U.S.C. § 13). The other statute, the Improvement Act, authorized expenditures for, among other things, Indian mental-health care and, specifically, for "therapeutic and residential treatment centers." Id. (quoting 25 U.S.C. § 1621(a)(4)(D) ). The CARES Act's broad purpose is comparable to the breadth of the statutes in Vigil , and its text is no more limiting. Congress appropriated a lump sum of $8 billion to assist Indian tribes with "necessary expenditures" associated with the coronavirus pandemic, 42 U.S.C. § 801(d)(1), and directed that "the Secretary shall determine, in consultation with the Secretary of the Interior and Indian Tribes," the amounts to be paid to Tribal governments "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 " as to ensure full distribution of the appropriated sum, id. § 801(c)(7) (emphasis added). Congress's general instruction to allocate funds based on "increased expenditures" "in such manner as the Secretary determines appropriate" is no more restrictive than the statutory directives at issue in Vigil . As this court stated in Prairie Band , "Congress gave the Secretary no further guidance on how to allocate the emergency relief funds"; thus, the CARES Act "contains no ‘statutory reference point’ by which to judge the Secretary's decision to use HUD's population data set, as opposed to some other." 2020 WL 3402298, at *1 (quoting Drake , 291 F.3d at 72 ). That conclusion applies equally here.

At oral argument, Plaintiff for the first time urged the court to take a "bifurcated" review of the Secretary's allocation determination.

See Hr'g Tr. (draft), Aug. 12, 2020, at 37–38. Plaintiff asserted that, even if the Secretary's top-level decision to use population data as a proxy for increased expenditures is not reviewable, then its secondary decision to select the HUD tribal population set is reviewable. Id. ; see also Pl.’s Suppl. Br. on Reviewability, ECF No. 40 [hereinafter Pl.’s Suppl. Br.], at 4. But that argument fails for at least two reasons.

First , it is not clear, as a factual matter, that the Secretary's decision-making was "bifurcated" in the way Plaintiff suggests. The Secretary, on May 5, 2020, announced both that he had used tribal population as the metric by which to make the first-tranche allocation of Title V funds and that he had relied on the HUD data set to supply the population figures. See Allocation Mem. at 2 ("Treasury has determined to distribute 60 percent of the $8 billion reserved for Tribal governments immediately based on population.... For purposes of the payments based on Tribal population, Treasury will refer to the Tribal population data used by [HUD] in connection with the [IHBG] program."). Thus, Plaintiff's proposition that the Secretary engaged in a divisible, "bifurcated" decision-making process, the first half of which is reviewable and second half is not, is not borne out by the record.

Second , even if the Secretary's decision could be bifurcated in the manner Plaintiff suggests, the selection of the HUD tribal population data set is no more reviewable than the initial decision to use population as a proxy for increased expenditures. Congress provided that the allocation of Title V funds to Tribal governments would be "determined in such manner as the Secretary determines appropriate." 42 U.S.C. § 801(c)(7). Far from cabining the Secretary's discretion, Congress codified it. So, the Secretary's choice of the HUD data over perhaps more comprehensive, and even more accurate, tribal population statistics is not subject to judicial review. Nor did the Secretary limit his own discretion by selecting population as a metric for allocating Title V funds. The Secretary issued no regulations, policy statements, or guidance...