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Law360 (December 14, 2020, 2:12 PM EST) -- The Shawnee Tribe of Oklahoma on Friday filed an emergency motion urging the D.C. Circuit to bar the U.S. Department of the Treasury from disbursing certain remaining CARES Act funds while it fights for a larger share on appeal, shortly after another tribe argued all remaining funds should be released now.
The federal government should not be able to spend down at least $12 million of what was $8 billion set aside for tribes under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, the Shawnee said. Rather, the funds should be left untouched in the short term while it continues its appeal.
The motion is urgent, the tribe said, because the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah sought in a Dec. 7 motion to have all remaining funds released immediately.
"[A] development in a related case has necessitated the tribe's request to seek emergency injunctive relief with this court," the Shawnee wrote Friday. "In short, another tribe has moved to compel the secretary to disburse millions of dollars of CARES Act funds. If the secretary does so, the tribe would be irreparably harmed because those funds will be forever dissipated and unable to be recovered."
The Shawnee Tribe appealed to the D.C. Circuit in October after a lower court denied its motion for a preliminary injunction to preserve the $12 million in funds while the tribe argued the federal government used a faulty metric to arbitrarily deny it a fair portion.
The district court subsequently tossed the Shawnee suit in September.
"Because the district court declined to grant preliminary injunctive relief, the secretary may obligate and distribute the remaining CARES Act funds at any time if the [Ute] motion is granted," the Shawnee argued Friday. "The moment the secretary does so, the tribe will suffer irreparable injury."
The tribe also noted an impending Dec. 30 deadline for tribes to allocate all CARES Act funds, a tight deadline that was central to the Ute motion.
"Given the urgent nature of this matter, and the impending Dec. 30 deadline, the tribe requests that the court issue an expedited briefing schedule on this motion … seven days to respond and two days to reply would be appropriate under the circumstances," the Shawnee said.
The D.C. Circuit on Dec. 4 heard oral arguments in the Shawnee appeal, and appeared skeptical of the Treasury Department's position that the appellate court has no power to weigh in on how the agency chose to dole out virus relief funds.
In its June complaint, the Shawnee Tribe argued the department had no basis to rely on Indian Housing Block Grant population data to disperse CARES Act funds, since the data wrongly suggests the tribe has a population of "zero."
The Treasury Department neglected better data in awarding the Shawnee Tribe the statutory minimum of $100,000, and in doing so acted arbitrarily and capriciously, according to the tribe.
Tossing the Shawnee case in October, U.S. District Judge Amit P. Mehta countered that Treasury Secretary Steven Mnuchin's distribution methods are not reviewable under the Administrative Procedure Act.
In the related consolidated cases, the Ute Tribe and others successfully argued that Alaska Native corporations cannot share in $8 billion set aside for tribes, snagging a win in September before the D.C. Circuit.
Tribes in the consolidated cases estimate that the Treasury Department has about $535 million remaining of the $8 billion pot.
"Under the unique facts of this case, the court should expressly require that the United States promptly comply with the mandate [to release remaining funds]," the Ute Tribe wrote. "Under the CARES Act, the tribes must not only receive the money — they must also spend or 'incur' expenditure of the funds by Dec. 30, 2020."
Counsel for the tribe declined to comment Monday. The Treasury Department did not immediately respond to a comment request.
The Shawnee Tribe is represented by Pilar Thomas, Luke Cass and Scott McIntosh of Quarles & Brady LLP.
The federal government is represented by Thomas Pulham, Michael S. Raab and Thomas Pulham of the U.S. Department of Justice.
The case is Shawnee Tribe v. Mnuchin et al., case number 20-5286, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Additional reporting by Nadia Dreid and Andrew Westney. Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
