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Law360 (December 23, 2020, 8:25 PM EST ) A D.C. Circuit panel on Tuesday declined to hold $12 million in coronavirus relief funds for the Shawnee Tribe of Oklahoma as it continues to pursue a larger share on appeal, saying the tribe made a procedural error in seeking an emergency stay this month.
The Shawnee should have first requested the stay at the district court level or explained why such a request would have been impractical, U.S. Circuit Judges David Tatel and Robert Wilkins wrote in a one-page order.
The order comes days after Congress reached a deal on additional coronavirus relief for Americans, yet to be signed by President Donald Trump, that includes a one-year extension on tribes' looming Dec. 30 deadline to spend funds received through the Coronavirus Aid, Relief and Economic Security Act.
A stay for the Shawnee also isn't necessary, Tuesday's order stated, because the lower court issued an order Dec. 14 in a similar case brought by the Miccosukee Tribe of Indians of Florida that the government "must provide it 'with notice of at least three business days before disbursing [CARES Act] Title V funds below the level necessary to pay the amounts claimed by'" both tribes.
The Shawnee Tribe filed its emergency motion on Dec. 11, saying 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 CARES Act.
The motion was urgent, the tribe said, because the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah had just sought to have all remaining funds released immediately, following a ruling in a consolidated D.C. Circuit case that Alaska Native corporations cannot share in the CARES Act funds.
In a one-page Dec. 21 order on the Ute motion, D.C. Circuit Judges Karen Henderson, Patricia Millett and Gregory Katsas agreed to issue their mandate that the Alaska Native corporations cannot share in the funds.
However, the panel declined the tribe's request for an order "requiring the United States to promptly comply with the mandate" to release the money to tribes.
Tribes in the consolidated case estimate that the U.S. Treasury Department has about $535 million remaining of the $8 billion pot, court records show.
In its June complaint, the Shawnee Tribe argued the department had no basis to rely on Indian Housing Block Grant population data to disburse 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.
The tribe appealed to the D.C. Circuit in October after a lower court tossed its suit, saying Treasury Secretary Steven Mnuchin's distribution methods are not reviewable under the Administrative Procedure Act.
The D.C. Circuit on Dec. 4 heard oral arguments in the Shawnee appeal, appearing 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.
Meanwhile, the U.S. Department of Justice and several Alaska Native corporations have appealed to the U.S. Supreme Court, arguing the corporations should regain access to the disputed CARES Act funds.
Pilar Thomas of Quarles & Bradley LLP, counsel for the Shawnee Tribe, told Law360 that her client is eagerly awaiting the D.C. Circuit's decision on its argument that the Treasury Department acted arbitrarily.
"We're anxiously waiting for the court of appeals to decide our appeal on whether the decision by the Treasury is reviewable under the Administrative Procedure Act, and hopefully we will see a decision on that soon," she said.
"Our client is still incurring costs, and COVID is still raging, so these funds are still very important for the tribe," Thomas added.
The Treasury Department did not immediately respond to a request for comment Wednesday. The Department of Justice declined to comment.
U.S. Circuit Judges David Tatel, Robert Wilkins and Merrick Garland sat on the panel for the D.C. Circuit. Garland did not participate in the disposition of the motions.
The Shawnee Tribe is represented by Pilar Thomas, Luke Cass and Scott McIntosh of Quarles & Brady LLP.
The federal government is represented by Michael S. Raab and Thomas Pulham of the 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, Andrew Westney and Christopher Cole. Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
