984 F.3d 94
D.C. Cir.2021Background
- Congress appropriated $150 billion under the CARES Act Title V for COVID-19 relief, reserving $8 billion for Tribal governments and directing the Treasury Secretary to allocate amounts “based on increased expenditures . . . relative to aggregate expenditures in fiscal year 2019” and to ensure all amounts are distributed.
- The Secretary announced a methodology allocating 60% of tribal funds immediately based on population and 40% later on employment and expenditures, and used HUD’s Indian Housing Block Grant (IHBG) formula-area population data instead of tribal enrollment figures.
- IHBG “population” is an estimated formula-area count (capped at twice enrolled population) that can differ materially from a tribe’s enrolled membership; for some tribes (including the Shawnee) IHBG reported population zero.
- The Shawnee Tribe (with >3,000 enrolled members and significant 2019 expenditures) received only the $100,000 minimum and sued, alleging the Secretary’s use of IHBG data and population as a proxy for increased expenditures was arbitrary, capricious, and unlawful under the APA.
- The district court held the allocation unreviewable and denied preliminary relief; the D.C. Circuit reversed, holding Title V allocations are judicially reviewable, found the Tribe likely to succeed on the IHBG-proxy claim, and reversed/directed entry of a preliminary injunction and remanded for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability under the APA: Is the Secretary’s allocation “committed to agency discretion” and therefore unreviewable? | Shawnee: Title V constrains discretion (payments must be based on increased expenditures and distributed to all tribes), so judicial review is available. | Treasury: Title V is a lump-sum appropriation and grants broad discretion, placing allocations beyond review. | Court: Reviewable. Title V imposes statutory constraints sufficient to supply judicially manageable standards. |
| Whether Title V leaves “no law to apply”: Does the phrase “in such manner as the Secretary determines appropriate” preclude meaningful judicial standards? | Shawnee: Statute also requires allocations to be “based on increased expenditures” and distributed to all tribes, supplying standards. | Treasury: The “determines appropriate” language renders the Secretary’s choice unbounded. | Court: Statute provides adequate limits; §701(a)(2) does not bar review here. |
| Validity of using IHBG formula-area population as proxy for increased expenditures | Shawnee: IHBG data can misstate tribal populations (sometimes zero) and is an unsuitable proxy for increased expenditures for some tribes; Treasury failed to seek alternatives for those tribes. | Treasury: IHBG data is reliable, consistently prepared, and the Secretary reasonably used it as a proxy given limited FY2020 expenditure data. | Court: Tribe likely to succeed on claim that IHBG data is an inadequate proxy for increased expenditures in some cases; merits to be addressed by district court. |
| Preliminary injunction: Should relief be entered to halt further distribution of certain Title V funds to allow review? | Shawnee: Irreparable harm established; likelihood of success and public interest favor injunction. | Treasury: Injunction would force creation of new methodology or individualized determinations, delaying distributions. | Court: Reversed denial of PI; found likelihood of success and that balance of equities/public interest favor Tribe; ordered district court to enter PI promptly. |
Key Cases Cited
- Lincoln v. Vigil, 508 U.S. 182 (1993) (lump-sum appropriations may signal non‑reviewability when Congress imposes no statutory restrictions)
- Heckler v. Chaney, 470 U.S. 821 (1985) (certain agency decisions are presumptively immune from judicial review)
- Department of Commerce v. New York, 139 S. Ct. 2551 (2019) (broad statutory delegations are nonetheless reviewable where other statutory provisions constrain agency discretion)
- City of Houston v. Department of Housing & Urban Dev., 24 F.3d 1421 (1994) (equitable doctrine permitting courts to award funds from an appropriation filed before its lapse)
- Nken v. Holder, 556 U.S. 418 (2009) (government’s interests merge with public interest for preliminary-injunction analysis)
- League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016) (public interest generally disfavors continuation of unlawful agency action)