oklahoma a state with one of the worst than one thousand up breaks in the country your honors i'd like to make three points today here about the government's position and the lower court's decision that supports that position that the government can without any judicial review use objective liam patently false data the results of which flies in the face of the law's expressed intent st the government's use of objectively false data that has the tribe with a population of zero is legally in factually impossible by definition arbitrary and capricious and the result is absurd and contrary to law this federal determination unbounded by actual facts or the record before them is reviewable under the a p a let's assume let's assume we agree with you that it's review of trying to understand your cla im the government says that it attempted to ascertain the population or each tribe in the formula area know rolled population in your formula area do you well your honor the tribe does not have a formula a i'm sorry there was a there was a little bit of a pause in my my video perhaps others got it could you repeat your answer there zero population finish answering the question the tribe doesn't have a formula area it doesn't participate in the indian housing block grant program and the indian housing block grant program formula at the heart of it is a census based formula we make in our complaint is st of all race based it's not based on actual tribal enrollment population data it's based on on the census form somebody checking whether they are of american indian or alaska native descent which is not the same as a tribal based population secondly the tribe doesn't have a census data census populate i'm sorry census tract so it will have zero population under the census and that's why it has a zero population under the ice age b g formula and in arkansas were dark and there were three tribes that the government did not participate in the the h something are you alleging that something like that could have been done for your client but it wasn't yes your honor in fact that's the point we made in the lower court as well that once the government use b g formula and saw that not only for this for shawnee tribe but in fact for twenty four other tribes that has a zero population in the column that the government looked at that the government had at least two and maybe even three other pieces of data if you look at the formula itself which we have in our pending acts you go four columns over there's a column that says hud enroll meant and that's a number that the tribe provided  with their enrollment numbers a few years ago so it's only two thousand one hundred and eleven dollars the government asked the tribes in not in april to submit certified documentation including the certification under penalty of perjury of their tribal enrollment data and we don't know if i'd want to cut you off but i want you to answer my questions specifically  they said that for these three tribes at s a one o three they found out what their formula area was in they got data for the population of the tribes in the formula area you answered me earlier by saying you didn't have a formula area so so i'm trying to understand that answer and how that relates to what occurred for these other tribes that didn't participate in the bici program so as we understand from the government's position as stated in their may th announcement as to what i believe you're referring to your honor they acknowledge that there were several tribes three tribes that are not even in the program on the formula grant and so they had to consult other information and they received other data from hud they don't say whether that data was based on a jurisdictional area or a formula area the government in its own documentation says it refers asked hud for the information it could have done the same thing here but it didn't the government could have consulted with the b i a who also had enrolment data on the tribe but it didn't do that either or the government could have consulted with the certification document that the tribe submitted under penalty of perjury to see what the actual number was but it didn't do that either so instead it used a obviously false piece of data to award the tribe one hundred thousand dollars instead of its fair share something closer to the three thousand dollars population that the tribe actually has and so that is part of the arbitrary and capricious nature of the government's action here it had alternative data that appropriation falls outside of the hill and we support that further by pointing out that this arguably is not even a lump sum distribution that it in fact it's a line item distribution and we cite to the general accounting office yeah but you didn't you didn't argue this and is there a particular reason why you bury dissent a footnote no your honor other than to lurk the court to the fact that there is an alternative explanation for why the record said to suppression in that program was a prerequisite for money your honor the inference is that instead of using the tribes reported and population number money was distributed on the basis of the tribal participation in the age but that's not accurate is that while it is in fact your honor the result because the put it in i think yeah ok od morning and may it please the court thomas poem for the at least the cares act task the secretary of the treasury with distributing one hundred and fifty billion dollars in assistance to state local and tribal governments within thirty days for some governmental units the act provided detailed instructions about how the amount of assistance should be determined for tribal governments however congress provided only general guidance and directed that the specific amounts would be determined by the secretary in a manner by the secretary it's based on increased expenditures are you would be totally right about this if the statute said what you just said that the money should be distributed on the basis of standards adopted by the secretary but that's not what it says it says based on increased expenditures as determined by the secretary so let's just get to the core of this case why isn't  certainly so i think when we look at the statutory language it says that the amount that a tribe receive shall be the amount the secretary shall determine that is based on increased expenditures and determined in such manner as the secretary determines appropriate so this reference to increased expenditures it's kind of nestled within the secretary's determination and this court has said repeatedly that when you have as a secretary have the discretion  not to base it on increase expenditures we're going to well i think it's a it's an instruction to the secretary but it's the secretary's determination whether this number is based on increased expenditures and that's the language i think is comparable to cases like webster and drake and claybrook that invoke more of a subjective standard rather than an objective standard but in drake there is no standard the only standard in drake was the agency decided i didn't say based on anything it was just the secretary should decide and that and we said that that was very important and drake that that that was one of the facts and of course great was oppressed discretion case so we could look at some of the other cases claybrook for example provided that an official could adjourn a hearing if the determine if the official determines that it was in the public interest right so that's a that's a very that's so yes if this one said that the secretary could distribute it as the secretary determines in the public interest that's a standard for which there are no standards but that a cour that the court's analysis there wasn't based on the public interest it's that all we have to review is the official's determination of whether it was in the public interest and it was that determination that made the difference not the public interest standard that's what the score well well the court said i'm going to quote adjourning a meeting quote in the public interest is the kind of decision that resistor dish will review so i don't think you're right that it's their argument the secretary's position is that population data is an adequate proxy for increased expenditures the tribes argument is that it is well i don't respect is it the least we went through the list is at least ten other tribes that came up zero so their argument is goes directly to the secretary's rationale for using the ice age b g data secretary said it was a proxy tribe says no it's not a proxy because it and other tribes came up zero even though they have significant populations that's there are so a couple of points here one this reference to increased expenditures i mean that itself is something that is not that's not an objective independent fact that's directly ascertainable these are numbers that were known because the time period hadn't run yet and they are in fact affected by the secretary's determination because how much a tribe spend estimate i'm focusing on expenditures that are specifically related to the public health emergency and population corresponds with those types of expenditures such as increased cost for medical and public health needs and then the secretary specifically chose a population measure that is a measure of what's called the tribes formula area which is the area of the tribal governments jurisdiction and other areas where the tribal government provides services with adjustments for whatever reason it had absolutely no relationship to expenditures and the phones that distributed based on would that not be reviewable by this court i don't think so for reasons the district court laid out because i think that goes to the manner but even even if so i think we could say look at this let me finish the question so you're telling me that if if the population data produced reviewable that's your position well i don't think we need to actually get that far because i don't think there's any real dispute that that with this population milk train would be helpful there in that case the statute said that that assistance a similar type of assistance would be distributed in a manner determined appropriate by the secretary to compensate for a certain year losses the secretary there such a limit on eligible production levels so that no assistance for losses above those levels would be provided the court said we can't review that because the statute left it to the secretary's discretion how to distribute those funds the court didn't kind of ask whether the limit was unreasonable or had no relationship to last it's that that's something the because it was kind of part and parcel of the ultimate discretionary decision we said it the discretionary decision and based on net facts so why isn't that exactly what we have here well that's right and the court undertook a very limited review just to assess that the secretary was there looking at the right thing aiming at that and trying to calculate it may not be that there's very much review but there was review production limit challenge and milk train rather than the kind of purposive challenge in train but you know even if we're wrong on review ability   specific population are you saying that we should go ahead and go to the merits i thought you said if we find review ability we should remain i do say i mean that would be the norm i agree that is that the normal course that  court says it should follow it would follow and should follow here i was trying to address it if you had questions about that but yes the normal course when a district court issues an injunction on a basis that this court  minimum what more do we need to decide at least a preliminary judgment question so i don't think you need anything more to decide the policeman or injunction question you could do that on the same basis from what was before the district court ok and i agree that this these documents lay out an adequate russia now i think our argument was that if you were going to if you needed to engage in a kind of searching inquiry to what the secretary had beforehand that would normally be done on the basis injury but that the tribe wouldn't succeed or the merits you're not challenging the irreparable injury issue here right there just as correct and i last question is going to go to our discussion earlier ok so you know we have to when we interpret a statute we have to give meaning to all of its words so what in your view of the statute do you think the phrase is based on increased expenditures of dot dot dot what what role does that which claims that i think that's telling the secretary what he should base determination of the amount paid it should it should have a relationship to increased expenditures and and save once more then why that isn't sufficient limitation in the statute to meet the secretary's ultimate decision with you i think about telling me about the merits i think because it is because it's  secretary's determination at the secretary is determining what the increased expenditures are in a manner that he determines appropriate and i think this brings up that kind of subjective standard of the type that i said at issue in provide a reference point for us to look at the only statutory reference would be the secretary's determination and so it's that kind of distancing having it be based on the secretary's determination in combination with kind of a whole set of factors about this case law tells us to look at the type of administrative action we have the statutory structure and kind of the overall scheme here we have a structure that a very detailed instructions for one part no one's few instructions for another it's just distribution of a set amount of funds over a limited period of time with an instruction that all of the funds have to be distributed so the secretary so i have three questions for you the st is imagine the secretary said i'm going to base my determination the alphabet and question you can you can explain but i need a yes or no is that reviewable or not reviewable no but i don't think that you need to agree with me on that point in order to you know i understand that you have a fallback position but why b because of kind of for the reasons i was trying to lay out before because of the way this is focused on the secretary's determination right if that's the case how do you explain the supreme court's decision and department of commerce versus new york from last year that's the census case in which the court the same argument is made and the secretary of the said he had unreviewable decisions about what questions to include in the census courts as we disagree to be sure the section instructs the secretary to quote take a dissenting l census in such form and content as he may determine nonetheless the court said it was reviewable because the cens imposes a quote duty to conduct a sentence census that is accurate and that fairly accounts for the crucial representation all rights that depend on the census that wasn't even from the statute that was from a from the supreme court opinion so there's a there's a case just last year from the united states supreme court in which the statute says as the secretary made that term and and which the court said that does not resolve the review ability question what's your answer to that so i think because then we're looking at  what is being determined which is an important thing here the census count is kind of independent objective lee ascertainable concept these increased expenditures are reviewable because i think the subject of what's being determined is relevant and here what's being determined is something that doesn't exist independently of the secretary's actions all this was why why doesn't this this is this this statute is it's pretty specific as to the basis we've been saying and creased expenditures but dot dot dot but the rest of the sentence says based on increased expenditures of each the tribal government relative to aggregate expenditures in fiscal year twenty one thousand i think for two reasons one the increased expenditures haven't they haven't happened yet they haven't but you can you can do it you could have based it on how much the increased expenditures secretary's actions so that the well that you make the amount of money that as secretary provides will influence what the tribes actually spent and well congress didn't say that congress said this is the way you do it and it gives a pretty objective way to do it i'm not saying you had to do it that way i'm not saying you couldn't use a proxy but the question is is it reviewable at all let me let me ask another question which judge table began with  question your colleague on the other side which i don't see how this can be regarded as a lump sum expenditure this is nothing like what happened in vigil where the court says congress never expressly appropriated funds for the centers that were at issue in the case that case it came from a purely annual lump sum appropriation and the g a o makes clear the difference is yes sometimes it's hard to know the difference between a line item and a lump sum but this isn't a large amount of money that the agents department can use for whatever it wants and that puts into this thing this is a specific line item of money that has to be spent for a specific purpose why do you regard this as a lump sum  think for a few reasons and i would just like to preface it this is not an argument that we think the tribe actually makes we heard we heard that too in that in the back and forth between judge had on your colleagues and now i just want to ask the question about why why why you're not asking us to apply the wrong presumption here i think it it shares some features with the appropriation in lump sum we have a general instruction of purpose and explicit i mean in this case explicit direction to the secretary to distribute it to kind of possible recipients as it as the secretary sees fit it's also informed by a kind of similar policy rationales the nature of the task requires  considerable amount of judgement a balance of factors that is not the distinction between a lump sum judgement as not the distinction as when a large amount of money is given to an agency which can then distribute it to various programs as it wishes this is only one program it has to be done for this purpose no other purpose yes you can't you have discretion as to how to do it for the purpose but it's not like it can go for a different thing that the department thinks it needs the money for if if this is a lump sum almost everything that is appropriated islams so i take your point on on the differences we thought that some of the some of the policy rationales you know apply involving that the balancing of factors that are an agency is better situated to do taking into account kind of what better at dances the purpose sum appropriation is unreviewable and we think that those factors apply here but ultimately as this court has has emphasized repeatedly this doesn't move the ball very far in one direction or the other you don't think you get any advantage from calling it a lump sum that's why i make sure we now understand that so you don't think it's a big deal at all presumption isn't much different i mean if the person the presumption helps but this court has said that it  actually even if it slips it in the words of this court it doesn't move the ball very far because judicial review was unavailable regardless of which presumption applies one of review ability or non review ability if there are no meaningful standards to cap and agency's otherwise plenary discretion and we think that's the case here for reasons i've set out so whether it falls under link link at the vigil or you know something else that's not  i'm not saying it makes no difference i just it's kind of different ways of getting at a similar issue and ultimately what matters is whether the standard the statute provides a meaningful standard that this court can use to or provide services and there are many different ways for a tribe to obtain a formal area the kind of two most common and easily understandable would be if the tribe has a reservation or trust lands that it's responsible for  does not have a formula area and the secretary explained when as part of the selection of the population measure rejected enrollment data because it doesn't distinguish between  the population that is within a tribal area and those that are outside and the secretary was specifically focusing on expenditures related to the public health emergency such as increased cost for medical and public health needs and this selection of this measure reflected the belief that tribal governments would be best position to make expenditures for emergency related issues for areas of the tribal would capture some things that might be increased expenditures but would not necessarily be appropriate uses of the funds under under that cares act occurs accepts out certain requirements for  of funds and the secretary said specifically he was focusing on expenditures that were due to the public health emergency and that population was expected to correspond with those types of expenditures  database and just lehman and included some non eligible tribes and excluded three judges completely but i assume those were all tribes which the secretary reached out to to get accurate data  those had formulas those three tracks did have formulary as that's what the secretary and the secretary seems to be making here right that that that money will be distributed under the hood database other components that yeah well taken point i was in so where do we walk in the record to find that the why the secretary thought that the presence or absence of a formula  secretary explains how this population measure is based on formulary which corresponds broadly to respect jurisdiction and where the tribe provides services and incorporates adjustments to address overlapping  between members living within the tribal area and those living outside the tribal area whereas formula area does kind of make that distinction so this reflects the belief that tribes would be kind of better position to make expenditures for the public health emergency in the areas where they provide services the secretary also identified other reasons why he chose this measure he said explain consistent and reliable it's updated annually using the same census data that congress required treasury to use for the allocations to state and local governments that's the population estimate program i believe it's called it's also it's it it's a fair assumption or ors rational or reasonable to assume that a tribe with no or militaria doesn't provide any service so i don't think that is this is secretary certainly didn't take that view that that's why among other reasons there's more than one component to the award there's also an employment component and one that's think what the secretary was what he explained here was that he was focusing on expenditures due to the public health emergency that population was expected to correspond to that and that specifically  kind of tribes would be most likely you know best position to make expenditures for the population living within their area  having a fixed amount that he could distribute and a requirement that all the money be given out in a quick period of time kind of all at once so this has to be done with an eye towards the whole program giving one tribe more necessarily means that the other tribes receive less so this has to be done by kind of a general formula that works kind of on the whole there may be you know certain tribes that come out better and certain that come out less but good so a couple of points real quick st with respect to the review ability and the meaningful standards the united states government would had have you believe that the only part of the cares act that's relevant here is the last half of the sentence the words that follow and a determination as the secretary shall determine in order to ensure that the monies are expended so there's two sets of components here the st is how much money should try to get and the nd is making sure that all of the money is distributed and the government's focused on that last standard of making sure all of the money is distributed and so this court is rightly pointed out that the st part of the sentence and as a reminder this court ruled in the show hale is st is minucci in case a related case that it has the ability to review the government's spending decisions here and so it's already looked at this language the exact same sentence the exact same wording to find that the government's actions here are reviewable secondly with respect to the merits and i know that the court was asking about the merits of the use of the b g formula is obviously in error because it is in error the data in the formula with respect to the shawnee tribe is clear error it is clearly false and so to the extent that this court we believe can and should look to the merits of the case certainly in the interest of time and in the interest of judicial economy and since this court is no deference to the lower court it owes no deference to the government's decision it sits in appellate review of the government's decision as this court has already pointed out the relevant facts are already in front of it with was arbitrary and capricious for the government to assign zero population to those tribes that had no formula area isn't that really the question that we would review that's the heart of the question your honor the heart of the question is whether of zero population number which is obviously false and legally impossible whether that is book text book arbitrary and capricious and contrary to the law the law says but i think i think the arguments a little different than that it's not whether the number is false it's whether whether formula area is a adequate proxy for increased expenditures right we think both questions your honor we challenge the use of the i b g formula which uses the formula area which the tribe doesn't have and then we challenge the use the selection of the zero population notwithstanding of course the fact that there is additional data for the federal government so for the federal government to use obviously false data and its decision is in fact textbook arbitrary and capricious even if the formula the selection of b g is reasonable which we don't waive that argument but even if it is a reasonable formula to use the the purposeful selection of zero population when there was other data available to the government to use is it's also arbitrary and capricious and so we would suggest that this court can in fact reach the merits of the case again it owes no deference to the lower court but if the court decides not to reach the merits of the case d then we certainly ask this court to overturn the lower court's dismissal of our preliminary injunction motion because we believe we will win on the on the merits of the case the court the government has admitted and the lower court has found that there is a reparable harm and so for those reasons we would ask this court to certainly overturn the motion to dismiss reinstating our claim to find in favor of the tribe on the merits in awarding the tribe the twelve million dollars that it seeks alternatively if the court does not reach the merits we ask it to overturn the a preliminary injunction motion and remand for