UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

THE MICCOSUKEE TRIBE 

OF INDIANS OF FLORIDA, 

 Plaintiff, 

v. Case No. 1:20-cv-23182-KMW

UNITED STATES DEPARTMENT OF THE 

TREASURY and UNITED STATES OF 

AMERICA, 

 Defendants. 

PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION 

TO PLAINTIFF’S EXPEDITED MOTION FOR PRELIMINARY INJUNCTION 

Plaintiff, the Miccosukee Tribe of Indians of Florida (“Miccosukee Tribe” or “Tribe”), 

hereby replies to Defendants’ Response in Opposition (Dkt. # 17) to the Tribe’s Expedited Motion 

for Preliminary Injunction (Dkt. # 5). 

SUMMARY 

Primarily for the following reasons, Defendants’ Response is without merit: 

A. Treasury fails to respond to the Tribe’s claim that its decision to distribute only 

$100,000 of CARES Act funds to the Tribe, based on its determination that the Tribe had zero 

members, was arbitrary and capricious. Instead, Treasury responds to different claims that the 

Tribe has not asserted. Treasury’s failure to address the Tribe’s specific challenge to its zeropopulation funding decision constitutes a tacit admission that the Tribe’s claim is likely to succeed 

on the merits. 

B. Treasury’s assertion that its funding decision is not subject to judicial review hinges 

upon ignoring the CARES Act statutory mandate that Treasury must distribute funds “based on 

increased [relative] expenditures” of each Tribal government. That mandate, which cannot be 

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ignored, provides a clear measuring stick by which this Court can evaluate Treasury’s funding 

decision. Furthermore, the D.C. Circuit Court of Appeals recently rejected one of Treasury’s 

assertions that CARES Act funding decisions are not subject to judicial review. See Confederated 

Tribes of the Chehalis Reservation, et al., v. Mnuchin, Case # 20-5204 (D.C. Cir.), slip opinion 

(Sept. 25, 2020) (copy included as Exhibit 1). 

3. Defendants fail to allege any harm caused by the timing of the Tribe’s complaint 

and expedited motion for preliminary injunction. And the timing is not suspect because: (1) the 

Tribe responsibly sought to resolve this dispute by means other than litigation; and, (2) the 

exigency regarding the remaining CARES Act funds arose only recently, thus necessitating the 

Tribe’s Expedited Motion. 

ARGUMENT AND AUTHORITIES 

A. Defendants Fail to Respond to the Tribe’ Claim that its “Zero-Population” 

Determination was Arbitrary and Capricious. 

In its Expedited Motion the Tribe established that that it is likely to prove that Treasury’s 

specific funding determination for the Tribe was arbitrary and capricious for at least five reasons: 

1. Treasury knew at the time that it made the determination that the population listing 

of zero was not correct; 

2. It was irrational for Treasury to conclude that a Tribe could have zero members yet 

still be a Tribe entitled to a distribution; 

3. Treasury failed to explore or resolve the conflicts among the various sources of 

population data for the Miccosukee Tribe; 

4. Treasury did not give a rational explanation for how it chose a population number of 

zero in the face of conflicting evidence; and 

5. Treasury relied on an incorrect assumption that the Tribe’s IHBG/AIAN population 

of zero was a reliable and consistently-prepared metric in the face of concrete 

evidence that it was not. 

Pl. Br. at 10-12. Treasury does not respond to any of these arguments. 

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Instead, Treasury attempts to change the subject to a different agency decision: the general 

decision to rely upon the IHBG/AIAN dataset, instead of other datasets, for all Tribal funding 

determinations. Treasury suggests that the Miccosukee Tribe is challenging the wrong agency 

decision. Defs’ Br. at 17 (accusing the Tribe of “misconstru[ing] the relevant agency decision” 

and of having a “myopic focus on its own datum”). Treasury does not, however, refute the 

arbitrary and capricious nature of its specific funding determination for the Miccosukee Tribe. 

Treasury cannot rewrite the Tribe’s complaint or otherwise dictate the parameters of the 

Tribe’s challenge. The Tribe’s motion and complaint both target the particular Miccosukee 

funding decision at issue here. Pl. Br. at 9 (challenging Treasury’s “zero-population” funding 

determination for the Tribe); Complaint ¶ 57 (“The Treasury Secretary’s Population Distribution 

of $100,000 to the Miccosukee Tribe was a final agency action within the meaning of, and subject 

to judicial review under, the Administrative Procedure Act, 5 U.S.C. § 706.”). 

Both the CARES Act and the Administrative Procedure Act (APA) establish that 

Treasury’s specific funding determination for the Miccosukee Tribe is a proper target for judicial 

review. In the text of the CARES Act, Congress expressly referred to such individualized 

determinations as decisions that Treasury must make, within specific statutory constraints, for each 

Tribe: the “amount paid . . . to a Tribal government” must be based on increased expenditures of 

“each such Tribal government” relative to 2019 expenditures by “the Tribal government.” 42 

U.S.C. § 801(c)(7) (emphasis added). And the APA defines such individualized funding 

determinations as agency actions subject to judicial review. The APA expressly authorizes judicial 

review of five specific categories of “discrete agency actions.” Norton v. S. Utah Wilderness 

Alliance, 542 U.S. 55, 62 (2004). One of those categories is an agency action “withhold[ing]” a 

“grant of money.” 5 U.S.C. §§ 10(B), 11(A); see also Norton, 542 U.S. at 62. The Tribe’s 

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expedited motion challenges Treasury’s decision to withhold a grant of CARES Act funds due to 

its irrational decision-making process.1

Finally, Treasury argues—unpersuasively—that under the CARES Act it has unfettered 

discretion to make an across-the-board decision to use IHBG/AIAN data for all Tribal funding 

determinations regardless of whether specific applications of such data are irrational. See Defs’ 

Br. at 18. That broad-brush approach would effectively nullify the specific statutory command 

that each Tribal government is entitled to a distribution based on its own increased expenditures. 

See 42 U.S.C. § 801(c)(7). Absolute precision may not be required. Contrary to its assertions, 

however, Treasury still has a fundamental obligation to establish “a rational connection between 

the facts found and the choice made” in executing the statutory command to decide the amount 

distributed to each Tribe. See, e.g., Mozilla Corp. v. FCC, 940 F.3d 1, 49 (D.C. Cir. 2019). 

Treasury cannot escape that obligation by asserting that its decision-making would be more 

efficient if it were free to ignore irrational results arising from the application of IHBG/AIAN data 

in particular funding decisions. “The APA’s presumption of judicial review is a repudiation of the 

principle that efficiency of regulation conquers all.” Sackett v. EPA, 566 U.S. 120, 130 (2012). 

If Treasury were correct, and it could rely exclusively on the IHBG/AIAN data no matter 

how irrational an individual funding decision may be, the agency could have (1) refused to 

distribute any funds to Indian Tribes not listed in the IHBG/AIAN data, or (2) distributed funds to 

1

 Because the Tribe’s motion challenges the specific funding determination for the 

Miccosukee, not the agency’s choice of one dataset over another, the Tribe does not claim here 

that Treasury could never use IHBG/AIAN data in determining distributions to other tribes. 

Treasury misconstrues the Tribe’s argument in suggesting otherwise. See Defs’ Br. at 18 n.15. 

The Tribe’s argument is that Treasury could not rationally rely on a population figure of zero when 

the agency had ample evidence that the Miccosukee Tribe has hundreds of members. The remedy 

flowing from a final judgment on the Tribe’s claim would be a remand to the agency to resolve 

the conflicting Miccosukee population figures through a rational decision-making process, not a 

judicial directive to use one dataset instead of another. 

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state-recognized Indian Tribes that receive HUD funds but are not recognized by the Federal 

government. Doing so would plainly violate the statutory command that each Tribal government 

is entitled to a distribution based upon its own increase in relative expenditures, and that only 

Federally recognized tribes are entitled to funding. 

At the time it made its population distributions Treasury publicly acknowledged the 

limitations of the IHBG/AIAN data. Specifically, Treasury announced that some Tribes that were 

eligible to receive CARES Act funds were not included in the IHBG/AIAN data and that it had 

separately gathered individualized population data for those Tribes. Treasury also announced that 

the IHBG/AIAN data included Tribes that received HUD funds but were otherwise not eligible to 

receive CARES Act funds. Specifically, in its May 5, 2020, announcement regarding its 

population-based distributions, Treasury stated: 

For Indian Tribes not included in the IHBG date, HUD provided population figures 

at Treasury’s request. Treasury will not include state-recognized Tribes that 

participate in the IHBG program but that are not Indian Tribes as defined by Title 

V of the CARES Act. 

See Exhibit 2, p. 3 (also included as Exhibit 4 to the Tribe’s Expedited Motion). 

Thus, contrary to its portrayal of its decision-making process, Treasury did not merely 

decide which population dataset was the most reliable and then immediately make funding 

decisions based solely on its chosen dataset. Rather, Treasury picked a dataset, scrutinized it for 

some errors, and then took steps to correct those errors. Yet when faced with an undisputed zeropopulation error for the Miccosukee Tribe, however, Treasury did nothing. The zero-population 

error is essentially the equivalent of not being included in the IHBG/AIAN data at all. Treasury 

had an obligation to address this error and resolve internal inconsistencies through a rational 

process that resolved conflicting evidence regarding the Miccosukee Tribe’s population, just as it 

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did for Indian Tribes not listed in the IHBG/AIAN data, and just as it did for non-federally 

recognized Indian Tribes listed in the data. There is no dispute that Treasury failed to do so. 

In sum, Treasury’s response addresses an agency decision—the choice of one dataset over 

another—that the Tribe has not challenged. Whatever the merits of Treasury’s arguments may be 

with respect to that decision, they are irrelevant here. Accordingly, the Court should hold that the 

Tribe is likely to succeed on the merits of its claim.2

B. Treasury’s argument that CARES Act distribution decisions are not subject to 

judicial review ignores the CARES Act’s statutory mandate and was recently 

rejected, in part, by the D.C. Circuit Court of Appeals. 

There is “a ‘strong presumption’ favoring judicial review of administrative action.” Mach 

Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (citation omitted). A narrow exception to that 

rule applies only in the rare circumstances in which judicial review is simply not feasible because 

there is no statutory standard against which the Court can evaluate the agency’s action. As the 

Tribe’s opening brief explained, there is such a standard here: the requirement that the funding 

determination for each Tribal government must be “based on increased expenditures of each such 

Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal 

government . . . .” 42 U.S.C. § 801(c)(7). Pl. Br. at 15–17. 

2

 There is a substantial question whether Treasury even has adequately defended its 

decision to choose one dataset over another. Attempting to explain why its choice of the 

IHBG/AIAN dataset was rational, Treasury relies almost entirely upon arguments of counsel and 

a Declaration by an agency official (Daniel Kowalski) drafted for purposes of this litigation. Defs’ 

Br. at 15-16. Yet the arbitrariness and capriciousness of an agency decision turns on the rationale 

stated contemporaneously in the decisional document itself, not in later litigation submissions. It 

is a “foundational principle of administrative law that a court may uphold agency action only on 

the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U.S. 743, 

758 (2015). In determining whether an agency decision is arbitrary and capricious under the APA, 

courts must base their judicial review on the “reasons stated in the [decision] under review.” ANR 

Storage Co. v. FERC, 904 F.3d 1020, 1024 (D.C. Cir. 2018). The courts must not “consider the 

agency’s post-hoc rationalizations.” Id. (citing Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 

F.3d 145, 164 (D.C. Cir. 2010)). 

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Treasury does not even respond to the Tribe’s argument that the CARES Act’s “increased 

expenditures” provision empowers the Court to review Treasury’s zero-population funding 

decision. Accordingly, Treasury also does not address the critical point that because it chose to 

use population as the measure for increased expenditures, an irrational decision regarding 

population also constitutes an irrational decision regarding increased expenditures. This point 

wholly undermines Treasury’s assertion that it has complete and unfettered discretion to determine 

population and that the Court is powerless to step in—even where Treasury relies on population 

data it knows is false. The logical extension of Treasury’s argument is that Treasury can determine 

relative expenditures through a wholly irrational process without being reversed by a court. That 

obviously cannot be the case, given Congress’s express directive that the distributions to Tribes 

“shall be . . . based on” increased relative expenditures. 42 U.S.C. § 801(c)(7). 

As the Tribe has acknowledged, the CARES Act provides discretion to Treasury to 

determine that population can be used to determine increased expenditures. But that certainly does 

not mean that Treasury’s irrational decision regarding the Miccosukee Tribe’s population is 

completely beyond the scope of judicial review. See, e.g., Sierra Club v. EPA, 356 F.3d 296, 307 

(D.C. Cir. 2004) (conducting judicial review of agency decision under statutory requirement that 

decision must be “based on” defined analytical method); see also Citizens for Responsibility and 

Ethics in Washington v. FEC, 892 F.3d 434, 440-41 (D.C. Cir. 2018) (addressing discretionary 

agency decisions that are subject to judicial review for “abuse of discretion” under 5 U.S.C. 

§ 706(2)(A)). 

Instead of addressing the foregoing analysis on its merits, Treasury simply repeats the 

bottom-line conclusions of two decisions of the U.S. District Court for the District of Columbia—

Shawnee Tribe v. Mnuchin, 2020 WL 5440552, and Prairie Band Potawatomi Nation v. Mnuchin, 

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2020 WL 3402298. (Def. Brief, at 11–12). The Tribe addressed the Shawnee Tribe decision in its 

Expedited Motion. (Expedited Motion at 15–17). In sum, the Tribe contends that both the 

Shawnee Tribe decision and the Prairie Band decision were decided incorrectly because they both 

rely on an incorrect application of the U.S. Supreme Court’s decision in Lincoln v. Virgil, 508 U.S. 

182 (1993). Lincoln stands for the proposition that courts cannot review certain agency funding 

decisions from so-called “lump-sum” appropriations which provide no guidance or restrictions on 

spending. The appropriation at issue in Lincoln provided no guidance to the administering agency, 

Indian Health Services (“IHS”), other than the requirement that the funds be used “for the benefit, 

care, and assistance of the Indians,” for the “relief of distress and conservation of health,” and, 

“therapeutic and residential treatment centers” for Indian mental-health care. See id. at 185. The 

plaintiffs in Lincoln did not assert that IHS failed to meet these broad statutory goals. Rather, they 

challenged IHS’s decision to end a specific health services program and reassign funds and 

personnel to a different health services program designed to address the same needs. Id. at 187-

88. Congress had never specifically authorized either program and had never specifically 

appropriated funds to either program. Id. In that context, the U.S. Supreme Court held that it had 

no ability to review IHS’s decision because Congress provided no restrictions on IHS’s specific 

spending decisions so long as those decisions met the broad goals of the applicable statutes. See 

id. at 194–95. 

Lincoln has no application to this dispute. In contrast to the statutes at issue in Lincoln, the 

CARES Act did not provide Treasury with broad discretion to distribute funds based solely on 

general criteria such as “the benefit, care, and assistance of the Indians.” Rather, the CARES Act 

specifically states that the “amount paid . . . to a Tribal government” must be “based on increased 

expenditures” of “each such Tribal government” relative to 2019 expenditures by “the Tribal 

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government.” These specific criteria distinguish this dispute from Lincoln and provide the 

necessary measuring stick against which this Court can review Treasury’s actions.3 

Finally, Treasury asserts that three structural or contextual considerations in the statute 

preclude judicial review: the short deadline for disbursing funds, the urgency of providing funds 

quickly, and the lack of any requirement for advance notice of funding decisions. Defs’ Br. at 12–

14. On Friday, September 25, 2020, in a different case addressing the distribution of CARES Act 

funds to Tribal governments, the U.S. Court of Appeals for the D.C. Circuit decisively rejected 

Treasury’s argument, ruling that “[w]e are unpersuaded.” See Confederated Tribes of the Chehalis 

Reservation, et al., v. Mnuchin, Case # 20-5204 (D.C. Cir.), slip opinion, p. 10 (Sept. 25, 2020) 

(copy included as Exhibit 1). The D.C. Circuit properly held that Treasury had not proved that 

short statutory deadlines preclude judicial review by implication, that the agency’s “urgency” 

argument was simply a variation on the same theme, and that advance notice occurred. This Court 

should reach the same conclusions and hold that the Tribe is likely to prove that Treasury’s “zeropopulation” decision is judicially reviewable. 

C. Defendants fail to allege any harm suffered by the timing of the Tribe’s Complaint 

and its Expedited Motion for Preliminary Injunction 

Treasury devotes significant time to what it perceives as the Miccosukee Tribe’s delays in 

filing its Complaint and its Expedited Motion. But at no point in its response does Treasury allege 

3

 Furthermore, Prairie Band did not involve a zero-population determination. Rather, the 

“gravamen of Plaintiff’s complaint” was Treasury’s use of “a different methodology than proposed 

during consultation with the Tribes and one not based on tribal enrollment.” See Prairie Band, * 

2020 U.S. Dist. LEXIS 108155, at *5–6. And although Shawnee did involve a zero-population 

determination, the D.C. District Court construed the plaintiff’s challenge primarily as a challenge 

to Treasury’s decision to use population as a proxy for increased expenditures. See Shawnee, 2020 

U.S. Dist. LEXIS 149434, at *3–5. In neither case did the D.C. Circuit Court address the specific 

claim raised by the Miccosukee Tribe—that Treasury’s specific decision to distribute funds to the 

Tribe based on an obviously false zero-population determination was arbitrary and capricious. 

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any harm caused by the alleged delay. And it does not assert that the Tribe missed any specific 

deadlines in requesting its relief. Furthermore, the Miccosukee Tribe responsibly sought to resolve 

this dispute through discussions and negotiations with Treasury, and other administration officials, 

as well as Congressional representatives. Only after those efforts failed did the Tribe resort to 

litigation. The Tribe cannot be faulted for its responsible approach to seeking a resolution of this 

dispute. 

Lastly, the timing of the Tribe’s Expedited Motion was dictated by the speed at which the 

D.C. Circuit Court of Appeals was considering the expedited appeal in Confederated Tribes of the 

Chehalis Reservation, et al., v. Mnuchin, Case # 20-5204 (D.C. Cir.). As described in the Tribe’s 

Expedited Motion, on July 7, 2020, in the Confederated Tribes matter the D.C. District Court 

enjoined Treasury from distributing the remaining CARES Act funds pending the resolution of the 

appeal to the D.C. Circuit Court. See Confederated Tribes of the Chehalis Reservation, et. at., v. 

Mnuchin, Case # 20-cv-01002 (APM), Dkt. # 107) (D.C. Dist.). Thus, when the Tribe filed its 

Complaint on July 31, 2020, Treasury was already enjoined from distributing the remaining 

CARES Act funds. Thus, there was no need, at that time, for the Tribe to seek a temporary 

restraining order or preliminary injunction. Only after the D.C. District Court scheduled oral 

arguments in the expedited appeal of the Confederated Tribes matter did the Tribe believe it was 

appropriate to seek a preliminary injunction from this Court. Oral arguments in the Confederated 

Tribes appeal were held on September 11, 2020. The Tribe filed its Expedited motion one week 

later, on September 18, 2020. Just as the Tribe acted responsibly in seeking to resolve this dispute 

without litigation, the Tribe also acted responsibly by refrain from seeking injunctive relief until 

an exigency arose: the impending decision in the Confederated Tribes appeal. 

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Respectfully submitted, this 28th day of September, 2020. 

 

/s/ George B. Abney 

George B. Abney 

Daniel F. Diffley (admitted pro hac vice) 

ALSTON & BIRD LLP 

One Atlantic Center 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424 

(404) 881-7000 (telephone) 

(404) 881-4777 (facsimile) 

E-mail: George.Abney@alston.com 

Daniel G. Jarcho (admitted pro hac vice) 

ALSTON & BIRD LLP 

950 F Street, N.W. 

Washington, DC 20004-1404 

(202) 239-3300 (telephone) 

(202) 239-3333 (facsimile) 

E-mail: Daniel.Jarcho@alston.com

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