United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 29, 2022 Decided March 24, 2023

No. 22-5089

PRAIRIE BAND POTAWATOMI NATION AND MICCOSUKEE TRIBE 

OF INDIANS OF FLORIDA,

APPELLANTS

SHAWNEE TRIBE,

APPELLEE

v.

JANET L. YELLEN, IN HER OFFICIAL CAPACITY AS SECRETARY 

OF THE UNITED STATES DEPARTMENT OF THE TREASURY, ET 

AL.,

APPELLEES

Consolidated with 22-5090

Appeals from the United States District Court

for the District of Columbia

(No. 1:20-cv-01999)

(No. 1:20-cv-02792)

(No. 1:21-cv-00012)
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James P. Blenk and George B. Abney argued the causes for 

appellants. With them on the briefs were Daniel G. Jarcho, 

Jean E. Richmann, Carol E. Heckman, and Michael G. 

Rossetti.

Adam C. Jed, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, and Daniel Tenny, Attorney.

Before: CHILDS, Circuit Judge, and ROGERS, Senior 

Circuit Judge. *

Opinion for the Court by Senior Circuit Judge Rogers.

ROGERS, Senior Circuit Judge: Two American Indian

tribes – Miccosukee Tribe of Indians of Florida and Prairie 

Band Potawatomi Nation – challenged as arbitrary and 

capricious the Secretary of the Treasury’s 2020 and 2021 

Distributions of appropriations for relief from the COVID-19 

pandemic. The district court granted summary judgment to the 

Secretary. The Tribes appeal only the 2021 Distribution. 

I.

The Coronavirus Aid, Relief, and Economic Security Act

(“the Act”), effective March 27, 2020, directed the Secretary of 

the Treasury to allocate COVID-19 relief funds to tribal 

governments “based on increased expenditures.” 42 U.S.C. § 

801(c)(7). The Secretary was to make payments within 30 days 

of enactment, id. § 801(b)(1), and therefore needed to devise a 

* Senior Circuit Judge Silberman was a member of the panel before 

his death on October 2, 2022. Judges Rogers and Childs have acted 

as a quorum in this opinion. See 28 U.S.C. § 46(d).
3

method that would approximate future expenditures, id. §§

801(b)(1), 801(c)(7). Where Congress directs an agency to act 

“based on” an identified factor, that factor must be a “starting 

point” and “primary basis” but it need not be the “sole basis” 

for action. United Mine Workers v. Mine Safety & Health 

Admin., 626 F.3d 84, 92 (D.C. Cir. 2010).

In May 2020, the Secretary announced that sixty percent 

of the funds would be distributed according to tribal

population, using HUD data. U.S. Dep’t of Treasury, 

Coronavirus Relief Fund Allocations to Tribal Governments 2 

(May 5, 2020) (“2020 Announcement”). Although various 

Tribes challenged the distribution unsuccessfully, on appeal 

this court determined that the Secretary’s discretion is “limited 

to ‘determin[ing]’ a method for allocating funds that is ‘based 

on increased expenditures’ and that is ‘appropriate to ensure 

that all amounts available . . . are distributed.’” Shawnee Tribe 

v. Mnuchin, 984 F.3d 94, 100 (D.C. Cir. 2021) (“Shawnee I”) 

(alteration in original) (quoting 42 U.S.C. § 801 (c)(7)).

Concluding that the Shawnee Tribe was likely to succeed on its 

challenge to the HUD data as arbitrary and capricious, the court 

remanded to the district court. That court thereafter issued a 

preliminary injunction barring the Secretary from distributing 

$12 million of the remaining COVID-19 funds appropriated to 

tribal governments. Order (Jan. 14, 2021). 

The Secretary proposed an additional allocation in 2021

from approximately $530 million designated for Alaska Native 

Corporations (“ANCs”) that had not been distributed pending 

litigation regarding the ANCs’ eligibility. U.S. Dep’t of 

Treasury, Coronavirus Relief Fund Allocations to Tribal 

Governments 2 (Apr. 30, 2021) (“2021 Announcement”). 

Only those Tribes most undercounted in the 2020 Distribution

would receive additional funds. Id. The Secretary ranked each

Tribe by the percentage the HUD data underestimated its 
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enrolled population, not by the number of uncounted enrolled 

members. Id. at 3. The Secretary used enrollment data 

collected by the Bureau of Indian Affairs and otherwise 

solicited enrollment data and, in the absence of either source, 

the Secretary used enrollment data based on the HUD data. Id. 

Allocations of the remaining undistributed funds were to be 

limited to the fifteen percent of Tribes with the greatest 

percentage of uncounted enrolled population. Id. The amount 

those Tribes received was determined by a “Phaseout”: the 

greater the percentage undercounted, the greater percentage 

awarded of their “shortfall,” i.e., the difference between the 

amount a Tribe would have received had enrollment data been 

used and the amount a Tribe received in the 2020 Distribution. 

Id.

Miccosukee and Prairie Band filed amended complaints 

challenging the 2020 and 2021 Distributions, while Shawnee 

abandoned its legal challenges. Shawnee Tribe v. Yellen, 583 

F. Supp. 3d 36, 40-41 (D.D.C. 2022). The district court granted 

summary judgment to the Secretary. Id. at 41. Miccosukee 

and Prairie Band now challenge only the Secretary’s “decision 

to implement the Phaseout” instead of awarding each Tribe 

receiving a 2021 Distribution the entirety of its shortfall.

II.

Miccosukee and Prairie Band contend that the 2021

Distribution was arbitrary and capricious because it was

unsupported by the administrative record, inconsistent with the 

Act and with the Secretary’s earlier approach, and treated 

similarly situated parties dissimilarly. As explained in Part A, 

Miccosukee’s claim is moot. As explained in Part B, Prairie 

Band’s claim must be remanded to the Secretary for further 

explanation before the court could conclude the choice was a 
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reasonable exercise of broad discretionary authority supported 

by the record.

A.

The doctrine of mootness “addresses whether ‘an 

intervening circumstance [has] deprive[d] the plaintiff of a 

personal stake in the outcome of the lawsuit.’” West Virginia 

v. EPA, 142 S. Ct. 2587, 2607 (2022) (alteration in original) 

(quoting Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 

72 (2013)). That “occurs when . . . the court can provide no 

effective remedy because a party has already ‘obtained all the 

relief that [it] sought.’” Conservation Force, Inc. v. Jewell, 733 

F.3d 1200, 1204 (D.C. Cir. 2013) (alteration in original) 

(quoting Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir. 

1984)).

In 2022, the Secretary offered additional funding to Tribes 

affected by the error in the 2021 Distribution. Miccosukee was

affected by that error while Prairie Band was not. Appellee’s 

Suppl. Br. 3 n* (Sept. 12, 2022). Some Tribes assigned HUD

populations of zero received the entirety of their shortfall in the 

2021 Distribution while others did not. The 2022 Distribution 

corrected that error. See id. The Secretary explained that

Miccosukee “has been offered and has accepted an additional 

payment such that Miccosukee has been given funds as if the 

methodology had used enrollment as the sole measure of 

population for all federally recognized tribes.” Id. at 3.

Miccosukee does not contest this representation. Its 

counsel acknowledged that Miccosukee had received the 2022 

Distribution. Oral Arg. Rec. 31:15-23. Instead Miccosukee 

maintains its claim is not moot because it still seeks to be 

treated on par with Tribes that received approximately $3,000 

per member in the 2020 Distribution (as reflected in the amount 
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of the Shawnee I injunction). Id. 31:01-33:46. But Miccosukee 

stated that “[t]he instant appeal solely addresses Treasury’s 

decision to implement the Phaseout.” Appellants’ Br. 15. In 

that regard it sought the difference between what it received 

and what it would have received had tribal enrollment been 

used as the measure of population. Id. at 32. That amount it 

has now received. Miccosukee still maintains that its claim is 

not moot because it has been unable to verify that it has been 

treated on par with other Tribes assigned HUD populations of 

zero. Appellants’ Reply Br. 4-5. These representations are 

inconsistent with its position that the court can direct an award 

of the entirety of each Tribe’s shortfall because the Secretary 

has all of the relevant data to do so. Appellants’ Br. 32. 

Although Miccosukee notes the 2022 Distribution is absent 

from the administrative record, Appellants’ Reply Br. 7-8 n.5, 

“evidence demonstrating mootness will almost necessarily 

post-date the administrative record in any given case,” Pub.

Emps. for Env’t Resp. v. Nat’l Park Serv., 2022 WL 1657013 

at *4 (D.D.C. May 24, 2022). Miccosukee, in seeking more

than it requested to be made whole as a result of undercounting 

by HUD data, fails to show factual error therein. 

B.

A reviewing court is “to assess only whether the 

[challenged agency] decision was ‘based on a consideration of 

the relevant factors and whether there has been a clear error of 

judgment.’” Dep’t of Homeland Sec. v. Regents of the Univ. of 

Cal., 140 S. Ct. 1891, 1905 (2020) (quoting Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 

(1971)). Because agencies generally have “wide discretion to 

determine where to draw administrative lines,” ExxonMobil 

Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1085 (D.C. Cir. 2002) 

(internal quotation marks and citation omitted), courts are 

especially deferential where agencies must make predictive 
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judgments with limited information, FCC v. Prometheus Radio 

Project, 141 S. Ct. 1150, 1160 (2021). Still, the Secretary

“must cogently explain why . . . discretion [was exercised] in a 

given manner,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983), such 

that the chosen “path may reasonably be discerned,” Alaska 

Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004) 

(quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 

Inc., 419 U.S. 281, 286 (1974)). As a general matter the

explanation must be based on the administrative record and not

provided as a post-hoc rationalization. See Overton Park, 401 

U.S. at 419. 

The requirement that the Secretary allocate funds “based 

on increased expenditures,” 42 U.S.C. § 801(c)(7), does not 

require a population-based allocation or a per capita rate, as 

Prairie Band maintains, Appellants’ Br. 24. Indeed, Prairie 

Band acknowledges that the Secretary acted within the broad 

discretion delegated by Congress in allocating additional

COVID-19 funds only to the fifteen percent of Tribes with the 

greatest share of enrolled population undercounted by HUD’s 

data. See id.

The Secretary used HUD population data as one way to 

approximate increased expenditures. Shawnee I, 984 F.3d at 

97. It is uncontested that some stand-in for increased 

expenditures was necessary as the Secretary explained in the

2020 Announcement. It is also uncontested that population is 

a reasonable stand-in for increased expenditures. Failures of 

the stand-in due to undercounting population are failures to 

allocate based on increased expenditures and redressing those 

failures is to allocate based on increased expenditures. HUD 

data significantly undercounted some Tribes. Shawnee I, 984 

F.3d at 97. The 2021 Distribution was designed to compensate 

Tribes based how much their members had been undercounted 
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so that the Secretary’s total allocations would more closely 

approximate increased expenditures. 2021 Announcement 2. 

The Secretary acknowledged two limitations on designing

the methodology: (1) The tight statutory time limit, 42 U.S.C. 

§ 801(b)(1), meant the methodology could at best only estimate 

Tribes’ funding needs because the “funding needs of Tribes 

cannot be determined with precision” when making a 

prediction about future expenditures, 2021 Announcement 3, 

and (2) Only limited COVID-19 funds remained undistributed. 

The undistributed funds had been allocated to ANCs in view of 

the great need identified during agency consultations, see id. 

The Secretary explained why limited funds required 

prioritization of “additional payments when there is a 

substantial disparity between the Tribe’s [HUD] count and its 

tribal enrollment.” Id. at 2.

Even so, the Secretary has not explained why “substantial 

disparity” was measured by the degree the HUD data 

underestimated enrollment rather than number of uncounted 

enrolled members, nor the Distribution methodology in 

relation to the statutory mandate to allocate funds “based on 

increased expenditures,” 42 U.S.C. § 801(c)(7). Across the 

2020 and 2021 Distributions, a total of $5.3 million was 

allocated to Shawnee for its 3,021 enrolled members. Shawnee 

Tribe, 583 F. Supp. 3d at 53. Prairie Band, by contrast, was 

allocated approximately $3.3 million across the 2020 and 2021 

Distributions for its 4,561 enrolled members. Id. The district 

court observed: “Shawnee received around $2 million more 

with around 1,500 fewer enrolled members: ‘40% more funds 

to Shawnee [than Prairie Band] for an enrolled population that 

is 33% lower.’” Id. (quoting Pls.’ Second Mot. Summ. J. at 15) 

(alteration in original). This resulted in a per enrolled member 

distribution of approximately $1,754 for Shawnee and 

approximately $724 for Prairie Band. See id. Absent further 
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explanation, this “treat[s] similar situations in dissimilar ways”

contrary to the principles of reasoned decisionmaking. Garrett 

v. FCC, 513 F.2d 1056, 1060 (D.C. Cir. 1975) (internal 

citations omitted). An “agency must treat similar cases in a 

similar manner unless it can provide a legitimate reason for 

failing to do so.” Kreis v. Sec’y of the Air Force, 406 F.3d 684, 

687 (D.C. Cir. 2005). “It is clear . . . not only that more than 

enumeration of factual differences between cases is required, 

but also that the [Secretary] must explain their relevance to the 

purposes of the legislation it administers.” Garrett, 513 F.2d 

at 1060 (alteration and internal citation omitted). 

On remand, the Secretary must explain the decision

decided. To the extent the 2021 Distribution would treat some 

Tribes assigned HUD populations of zero differently, the

Secretary corrected the error. Only Miccosukee had standing 

to challenge the error and its claim is moot. To the extent 

Prairie Band’s objection to the Secretary’s explanation is that 

the administrative record would also support awarding Tribes 

the entirety of the shortfall, the court has no occasion to 

“substitute its judgment for that of the [Secretary],” FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting 

State Farm, 463 U.S. at 43). Congress assigned “that difficult 

decision” to the Secretary. Regents of the Univ. of Cal., 140 S. 

Ct. at 1914. The Secretary must sufficiently explain the choice

made. Although the court does “not conclude that the agency 

is incapable of adducing sufficient evidence reasonably to 

support its decision,” the court “cannot, consistently with [its]

limited role in reviewing agency decisions . . . reach the 

reasoned decision [itself]; that task remains to be done by the 

agency.” Am. Min. Cong. v. EPA, 907 F.2d 1179, 1191 (D.C. 

Cir. 1990).

Accordingly, the court dismisses Miccosukee’s challenge 

as moot and reverses the district court’s grant of summary 
10

judgment to the Secretary with instructions to remand Prairie 

Band’s challenge to the 2021 Distribution to the Secretary for 

further explanation.