Feds Shorted Shawnee Tribe On Virus Funds, DC Circ. Told

By Andrew Westney
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Law360 (October 13, 2020, 11:18 PM EDT) -- The Shawnee Tribe has urged the D.C. Circuit to overturn a lower court ruling dismissing the tribe's bid for more coronavirus relief funding under the CARES Act, saying the Treasury Department didn't have the discretion to base the tribe's funding on data showing its population as zero.

The tribe, which is headquartered in Miami, Oklahoma, is seeking reversal of a D.C. federal judge's Sept. 10 decision that Treasury Secretary Steven Mnuchin's use of Indian Housing Block Grant population data to allocate $8 billion under Title V of the Coronavirus Aid, Relief and Economic Security Act wasn't reviewable under the Administrative Procedure Act.

In its Friday opening brief to the D.C. Circuit, the Shawnee Tribe argued that U.S. District Judge Amit P. Mehta "overlooked key, mandatory and discretion-limiting Title V language" and that his decision ran afoul of the D.C. Circuit's determination in another case dealing with the law that "nothing in Title V precludes review of the government's spending decisions."

And there was "simply no rational or reasonable explanation for distributing Title V funds based on the use of an unrelated elective federal housing program formula that contains patently false data," meaning the agency's decision was "more akin to pulling numbers out of a hat — the epitome of arbitrary and capricious action" under the APA, according to the brief.

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 3,000 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.

Judge Mehta tossed the APA suit on Sept. 10, echoing his reasoning in an Aug. 19 order denying the tribe's bid for preliminary injunction.

The judge pointed to the text of Title V, which states that the amount of funding a tribe receives "shall be ... determined in such manner as the secretary determines appropriate," saying that language "cannot be reasonably read to place any restriction on how the secretary must allocate the $8 billion to achieve that goal."

Judge Mehta has handled multiple suits challenging tribal funding under the CARES Act, and in his ruling alluded to an injunction request by the Prairie Band Potawatomi Nation, which he rejected in June for similar reasons.

The Shawnee Tribe said in its brief in the expedited appeal Friday that the lower court's ruling should be overturned and Treasury ordered to pay the tribe as much as other tribes with over 3,000 members.

The lower court's decision "allowed the government to effectively render the Shawnee Tribe extinct for purposes of distributing critical and necessary Title V funds," the tribe said.

The D.C. Circuit recently found that Treasury's decisions on how to distribute CARES Act funds to tribes are reviewable when it overturned a different decision by Judge Mehta, the Shawnee Tribe said. In that case, a unanimous D.C. Circuit panel ruled Sept. 25 that Alaska Native corporations can't share in the tribal government funding under the law.

The tribe said that $162 million made available to federally recognized tribes through that Sept. 25 decision could be used right now to provide full funding to the Shawnee, but added that "the temporary availability of these funds underscores the importance of a swift grant of injunctive relief to prevent the government from repeating history" by relying on the housing data again.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

U.S. Circuit Judges Karen LeCraft Henderson, David S. Tatel and Gregory G. Katsas are sitting on the panel for the D.C. Circuit.

The Shawnee Tribe is represented by Luke Cass, Scott McIntosh, Pilar Thomas and Nicole L. Simmons of Quarles & Brady LLP and by Gregory J. Bigler.

The federal government is represented by Adam C. Jed, Michael S. Raab, Daniel Tenny 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 Joyce Hanson and Emma Whitford. Editing by Daniel King.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Shawnee Tribe v. Steven Mnuchin, et al


Case Number

20-5286

Court

Appellate - DC Circuit

Nature of Suit

1890 Other Statutory Actions

Date Filed

September 21, 2020

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