Shawnee Tribe Loses Suit Claiming Unfair Virus Funding

By Emma Whitford
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Law360 (September 11, 2020, 11:32 AM EDT) -- A D.C. federal judge has sided with the U.S. Treasury Department, dismissing the Shawnee Tribe of Oklahoma's case alleging that the federal agency arbitrarily denied it a fair portion of virus relief funds set aside for tribes in the CARES Act.

Treasury Secretary Steven Mnuchin's allocation of $8 billion under Title V of the Coronavirus Aid, Relief and Economic Security Act is not reviewable under the Administrative Procedure Act, U.S. District Judge Amit P. Mehta ruled Thursday, echoing his reasoning in an Aug. 19 order denying the tribe's bid for preliminary injunction.

APA claims don't hold up in cases such as this, where an action has been "committed to agency discretion by law," Judge Mehta ruled, quoting the 2011 D.C. circuit decision in Sierra Club v. Jackson .

Judge Mehta has handled multiple suits challenging tribal funding under the CARES Act, and on Thursday alluded to an injunction request by the Prairie Band Potawatomi Nation, which he rejected in June. The Prairie Band voluntarily dismissed its claims in July, court records show.

"After multiple rounds of briefing and oral arguments on motions for preliminary relief in this case and in Prairie Band, the court has twice found ... the secretary's allocation methodology is not reviewable under the APA," the judge wrote. "Plaintiff now asks the court to change its mind, but nothing plaintiff has added to its argument persuades the court to do so."

The Shawnee filed suit on June 18, saying the federal government undercounted and undercompensated the tribe by relying on Indian Housing Block Grant population data from the U.S. Department of Housing and Urban Development.

The government disregarded population data provided by the tribe and instead opted for the IHGB metric, under which the tribe has a population of "zero," the complaint claimed. In reality, the tribe said, it has more than 2,113 tribal citizens.

Tribes with fewer than 37 members received a minimum $100,000 award, the complaint said. This is the amount the Shawnee Tribe received, though the tribe claimed it is owed at least $6 million.

The Shawnee Tribe argued earlier this month that the government had leveraged a purely procedural argument against it. The tribe also presented case law it claimed supports its reviewability argument.

But Judge Mehta on Thursday rejected the case law as irrelevant and returned to the text of Title V, which states that "the amount paid ... to a tribal government shall be ... determined in such manner as the secretary determines appropriate."

"Title V cannot be reasonably read to place any restriction on how the secretary must allocate the $8 billion to achieve that goal," Judge Mehta said.

The Shawnee Tribe originally brought its claims in the Northern District of Oklahoma, and in July tried to escape a transfer to Judge Mehta's court.

Neither the tribe nor its counsel immediately responded to requests for comment Friday.

The Treasury Department declined to comment.

The Shawnee Tribe is represented by Pilar Thomas, Jonathan P. Labukas and Nicole L. Simmons of Quarles & Brady LLP.

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

The case is Shawnee Tribe v. Mnuchin et al., case number 1:20-cv-01999, in the U.S. District Court for the District of Columbia.

--Additional reporting by Joyce Hanson and Andrew Westney. Editing by Marygrace Murphy.

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District Of Columbia

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Amit P. Mehta

Date Filed

July 29, 2020

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