By Emma Whitford

Law360 (July 24, 2020, 4:06 PM EDT) -- The Shawnee Tribe has urged an Oklahoma federal judge to reject the U.S. Treasury Department's bid to transfer its case alleging the government denied it $12 million in coronavirus relief funds using inaccurate population data.

The case should not be transferred to the District of Columbia, the Shawnee Tribe said. According to the tribe, Treasury is wrongly lumping its case with a D.C. case that the Prairie Band Potawatomi Nation of Kansas brought in June. Treasury is trying to combine the cases in a more favorable venue, the tribe claimed.

"It is only through a gross mischaracterization of the Shawnee Tribe's position that defendants can attempt to make this case seem duplicative," the Shawnee wrote Thursday, accusing Treasury of "feign[ing] inability to comprehend nuances or even vast differences in legal argument."

The Shawnee filed suit on June 18, saying the federal government undercounted and undercompensated the tribe when allocating Coronavirus Aid, Relief and Economic Security Act funds.

The government disregarded population data provided by the tribe and instead opted for the Indian Housing Block Grant metric, under which the tribe has a population of "zero," the complaint claimed. In reality, the tribe said, it has 3,021 tribal citizens.

The suit came 10 days after the Prairie Band Potawatomi Nation sued Treasury over the distribution of CARE Act funds, saying its decision to use the IHBG metric was arbitrary and capricious under the Administrative Procedure Act.

U.S. District Judge Amit P. Mehta has since ruled in that case that the department's distribution of funds is "unreviewable."

Transferring the Shawnee case to Judge Meheta in D.C. would "allow a single decision-maker — who is already familiar in the relevant legal background and litigation history — to resolve related disputes pertaining to Treasury's distribution of the relevant funds," the federal government argued in a July 9 filing before the Oklahoma court.

But the Shawnee argued Thursday that the cases are distinct.

"Defendants mischaracterize plaintiff's case, which does not solely challenge the methodology but also challenges the use of patently and objectively false data in that methodology," the Shawnee Tribe wrote in a reply filed alongside its response to the government's motion to transfer. "In doing so, defendants omit half of the reviewability analysis — notably the most critical half."

"Once defendants made the choice to use population data as part of the allocation methodology, they had a duty to avoid using objectively false data for the Shawnee Tribe," the plaintiff continued. 

The Shawnee Tribe also criticized Judge Mehta's ruling in the Prairie Band Potawatomi Nation case, saying the judge "failed to consider that the APA presumes review" of administrative actions.

If the Oklahoma Court does decide to transfer its case, the tribe added, it should do so quickly. The Shawnee Tribe previously urged the court to freeze at least $12 million in CARES Act funds it believes it is owed, and doubled down on that request Thursday.

Even in D.C., the case must "be decided on its own merits in accordance with applicable law and not through the imposition of pre-determined orders handed down in other cases," the Shawnee Tribe said. 

Counsel for the Shawnee Tribe and the federal government did not immediately respond to requests for comment Friday. Treasury also did not immediately comment.

The Shawnee Tribe is represented by Gregory Bigler of Bigler Law and Pilar M. Thomas, and Nicole L. Simmons of Quarles & Brady LLP.

The government is represented by Jason C. Lynch and Kuntal Cholera of the U.S. Department of Justice's Civil Division.

The case is Shawnee Tribe v. Steven T. Mnuchin et al., case number 4:20-cv-00290, in the U.S. District Court for the Northern District of Oklahoma.

--Additional reporting by Andrew Westney. Editing by Amy Rowe.

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