[00:00:00] Speaker 02:
Case number 20-5286, Shawnee Tribe of Balance versus Stephen T. Mnuchin in his official capacity as Secretary of the United States Department of the Treasury, et al.

[00:00:12] Speaker 02:
Ms.

[00:00:13] Speaker 02:
Thomas for the balance, Mr. Boehme for the appellees.

[00:00:19] Speaker 02:
Ms.

[00:00:19] Speaker 02:
Thomas is now unmuted.

[00:00:20] Speaker 04:
Good morning.

[00:00:22] Speaker 03:
Good morning, Your Honors.

[00:00:24] Speaker 03:
And may please the court polar Thomas on behalf of the Shawnee tribe, a federally recognized Indian tribe with over 3000 tribal members located in Oklahoma, a state with one of the worst coven 19 outbreaks in the country.

[00:00:39] Speaker 03:
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 objectively and patently false data, the result of which flies in the face of the law's express intent.

[00:01:00] Speaker 03:
First, the government's use of objectively false data that has the tribe with a population of zero is legally and factually impossible by definition, arbitrary and capricious, and the result is absurd and contrary to law.

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This federal determination unbounded by actual facts or the record before them is reviewable under the APA.

[00:01:26] Speaker 00:
Let's assume we agree with you that it's reviewable.

[00:01:30] Speaker 00:
understand your claim.

[00:01:34] Speaker 00:
The government says that it attempted to ascertain the population for each tribe in the formula area as defined by the Indian housing block grant program, correct?

[00:01:55] Speaker 03:
Yes, your honor.

[00:01:57] Speaker 00:
You don't allege

[00:01:59] Speaker 00:
that you had enrolled population inside your formula area, do you?

[00:02:11] Speaker 03:
Well, Your Honor, the tribe does not have a formula area.

[00:02:20] Speaker 00:
I'm sorry.

[00:02:21] Speaker 00:
There was a little bit of a pause in my video.

[00:02:26] Speaker 00:
Perhaps others got it.

[00:02:27] Speaker 00:
Could you repeat your answer?

[00:02:30] Speaker 03:
zero population.

[00:02:39] Speaker 00:
Miss Thomas, you're freezing up on me.

[00:02:42] Speaker 00:
I don't know if the other are having a problem.

[00:02:45] Speaker 04:
Yeah, me too.

[00:02:48] Speaker 03:
Yeah, we had a temporary disruption in our internet.

[00:02:51] Speaker 03:
We apologize.

[00:02:51] Speaker 03:
I apologize, your honor.

[00:02:54] Speaker 03:
To finish answering the question, the tribe doesn't have a formula area.

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It doesn't participate in the Indian Housing Block Grant Program.

[00:03:02] Speaker 03:
And the Indian Housing Block Grant Program formula at the heart of it is a census-based formula, which, as we make in our complaint, is first of all race-based.

[00:03:13] Speaker 03:
It's not based on actual tribal enrollment population data.

[00:03:17] Speaker 03:
It's based on

[00:03:18] Speaker 03:
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.

[00:03:28] Speaker 03:
Secondly, the tribe doesn't have a census data, census population, I'm sorry, census tract.

[00:03:36] Speaker 03:
So it will have zero population under the census.

[00:03:40] Speaker 03:
And that's why it has a zero population under the IHBG formula.

[00:03:45] Speaker 00:
And in our, there were three tribes that the government said did not participate in the, the IHBG program, but the government basically ascertained this is at the supplemental appendix at 103 that they ascertain what

[00:04:12] Speaker 00:
population could be attributed to their defined formula areas, the Chicken Ranch, Mahegan, Prairie Island.

[00:04:23] Speaker 00:
Could something, are you alleging that something like that could have been done for your client, but it wasn't?

[00:04:31] Speaker 03:
Yes, Your Honor.

[00:04:32] Speaker 03:
In fact, that's the point we made in the lower court as well, that once the government used the IHBG formula and saw that not only for this, for Shawnee tribe, but in fact for 24 other tribes, they had as 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.

[00:04:56] Speaker 03:
If you look at the formula itself, which we have in our appendix, you go four columns over.

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There's a column that says HUD enrollment.

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And that's a number that the tribe provided to HUD with their enrollment numbers a few years ago.

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So it's only 2,111.

[00:05:13] Speaker 03:
The government asked the tribes in April

[00:05:18] Speaker 03:
to submit certified documentation, including a certification under penalty of perjury of their tribal enrollment data.

[00:05:27] Speaker 00:
And the Shawnee tribe.

[00:05:28] Speaker 00:
I don't want to cut you off, but I want you to answer my question specifically.

[00:05:34] Speaker 00:
My question specifically is that they said that for these three tribes at SA 103, they found out what their formula area was

[00:05:48] Speaker 00:
and then they got data for the population of the tribes in the formula area.

[00:05:55] Speaker 00:
You answered me earlier by saying you didn't have a formula area.

[00:06:01] Speaker 00:
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 IHBG program.

[00:06:14] Speaker 03:
So as we understand from the government's position as stated in their May 5 announcement is what I believe you're referring to your honor, they acknowledge that there were several tribes three tribes that are not even in the HPG program on the formula grant.

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And so they had to consult other information and they received other data from HUD.

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They don't say whether that data was based on a jurisdictional area or a formula area.

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The government in its own documentation says it asked HUD for the information.

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it could have done the same thing here, but it didn't.

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The government could have consulted with the BIA, who also had enrollment data on the tribe, but it didn't do that either.

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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.

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So instead, it used a obviously false piece of data

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to award the tribe $100,000 instead of its fair share, something closer to the 3,000 population that the tribe actually has.

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And so that is part of the arbitrary and capricious nature of the government's action here.

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It had alternative data that was arguably more, in fact, factually more reliable than the zero population that the government used instead to make the award.

[00:07:48] Speaker 04:
Ms.

[00:07:50] Speaker 04:
Thomas, were you done with that, Judge Wilkins?

[00:07:53] Speaker 04:
Yes, Your Honor.

[00:07:53] Speaker 04:
Yes.

[00:07:54] Speaker 04:
You were?

[00:07:54] Speaker 04:
Okay.

[00:07:55] Speaker 04:
I just have two quick questions for you.

[00:08:00] Speaker 04:
In a footnote in your blue brief, you make an argument that the funds here are not a lump sum appropriation, but rather a line item.

[00:08:14] Speaker 04:
Did you make that argument in the district court?

[00:08:17] Speaker 03:
We did not, Your Honor.

[00:08:19] Speaker 03:
We pointed out, though, that the lump sum appropriation falls outside of the purview of V Hill.

[00:08:27] Speaker 04:
I thought you said it wasn't a lump sum, that it's a line item.

[00:08:31] Speaker 03:
Well, our argument below was that this particular appropriation falls outside of V Hill.

[00:08:38] Speaker 03:
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.

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And we cite to the general accounting office's definition.

[00:08:52] Speaker 04:
But you didn't argue this.

[00:08:53] Speaker 04:
And is there a particular reason why you buried this in a footnote?

[00:08:59] Speaker 03:
No, Your Honor, other than to alert the court to the fact that there is an alternative explanation for why the Vigil case should apply here.

[00:09:07] Speaker 04:
Your argument, then, I take it, is that even if this is a lump sum, that the language of the statute about basing the distribution of the funds on tribal expenditures is enough of a standard.

[00:09:22] Speaker 04:
That's your argument, right?

[00:09:23] Speaker 03:
Yes, Your Honor.

[00:09:24] Speaker 04:
In fact, even if- My question is this.

[00:09:27] Speaker 04:
You say in one point in your brief that the government used participation in the IHBG program itself, participation in the program as a prerequisite for receiving title fund funding.

[00:09:42] Speaker 04:
You say that at page 10.

[00:09:45] Speaker 04:
Is that in fact what happened?

[00:09:48] Speaker 04:
I mean, I couldn't find anything in the record that said that participation in that program was a prerequisite for the money.

[00:09:59] Speaker 03:
Your honor, the inference is that instead of using the tribes reported and population number, the government in which they asked every tribe to submit instead of using- No, I understand that.

[00:10:11] Speaker 04:
I understand that's not what I was asking you.

[00:10:14] Speaker 04:
I get that argument, but I thought at page 10, you actually say that the money was distributed on the basis of the tribal participation in the IHBG program.

[00:10:27] Speaker 04:
But that's not accurate, is it?

[00:10:29] Speaker 03:
Well, it isn't, in fact, Your Honor, the result, because the Shawnee tribe.

[00:10:34] Speaker 04:
Yeah, okay, I understand your point.

[00:10:40] Speaker 04:
Okay.

[00:10:40] Speaker 04:
And I see my time is up, Your Honor.

[00:10:42] Speaker 04:
Unless my colleagues have any other questions, we'll hear from the government.

[00:10:54] Speaker 05:
Good morning, and may it please the court, Thomas Pullam for the Appalese

[00:11:00] Speaker 05:
The CARES Act tasked the Secretary of the Treasury with distributing $150 billion in assistance to state, local, and tribal governments within 30 days.

[00:11:10] Speaker 05:
For some governmental units, the Act provided detailed instructions about how the amount of assistance should be determined.

[00:11:16] Speaker 05:
For tribal governments, however, Congress provided only general guidance and directed that the specific amounts would be determined by the secretary in a manner that the secretary determines appropriate.

[00:11:27] Speaker 04:
You let me out of that sentence.

[00:11:29] Speaker 04:
It's not determined by the secretary.

[00:11:32] Speaker 04:
It's based on increased expenditures.

[00:11:37] Speaker 04:
You would be totally right about this if the statute said what you just said.

[00:11:42] Speaker 04:
that the money shall be distributed on the basis of standards adopted by the secretary.

[00:11:47] Speaker 04:
But that's not what it says.

[00:11:49] Speaker 04:
It says based on increased expenditures as determined by the secretary.

[00:11:56] Speaker 04:
Let's just get to the core of this case.

[00:11:58] Speaker 04:
Why isn't that sufficient statutory evidence

[00:12:04] Speaker 04:
of both that this is judicial, that this is judicially reviewable, and that we have an adequate standard here.

[00:12:13] Speaker 04:
Even if, let me just finish my question, even if, as you say in your brief, that the secretary's decision to use population data

[00:12:24] Speaker 04:
is not reviewable.

[00:12:28] Speaker 04:
Certainly that population data must in fact be a proxy for expenditures, increased expenditures.

[00:12:38] Speaker 05:
Certainly, so I think when we look at the statutory language, it says that the amount that a tribe receives shall be the amount the secretary shall determine that is based on increased expenditures and determined in such manner as the secretary determines appropriate

[00:12:54] Speaker 05:
So this reference to increased expenditures is kind of nestled within the secretary's determination.

[00:13:01] Speaker 04:
And this court has said repeatedly that when we have Does the secretary have the discretion not to base it on increased expenditures?

[00:13:11] Speaker 05:
Well, I think it's an instruction to the secretary, but it's the secretary's determination whether this number is based on increased expenditures.

[00:13:21] Speaker 05:
And 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.

[00:13:32] Speaker 01:
But in Drake, there's no standard.

[00:13:34] Speaker 01:
The only standard in Drake was

[00:13:37] Speaker 01:
as the agency decided, I didn't say based on anything.

[00:13:45] Speaker 01:
It was just that secretaries should decide.

[00:13:49] Speaker 01:
And we said that that was very important in Drake, that that was one of the facts.

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And of course, Drake was a prosecutorial discretion case.

[00:13:56] Speaker 05:
So we could look at some of the other cases.

[00:13:59] Speaker 05:
Claybrook, for example, provided that an official could adjourn a hearing if the official determines that it was in the public interest.

[00:14:09] Speaker 01:
Right.

[00:14:10] Speaker 01:
So that's a wet yes.

[00:14:12] Speaker 01:
If this one said that the secretary could distribute as the secretary determines in the public interest, that's a standard for which there are no standards.

[00:14:21] Speaker 05:
But the court's analysis there wasn't based on the public interest.

[00:14:29] Speaker 05:
It said all we have to review is the official's determination of whether it was in the public interest.

[00:14:35] Speaker 05:
And it was that determination that made the difference, not the public interest standard.

[00:14:39] Speaker 05:
That's what this court said.

[00:14:41] Speaker 01:
Well, the court said, I'm going to quote, adjourning a meeting in the public interest is the kind of decision that resists judicial review.

[00:14:50] Speaker 01:
So I don't think you're right that it's irrelevant that this was a public interest standard.

[00:14:56] Speaker 05:
Well, so even if that part could provide some kind of hook for review, as the district court said, that's not the challenge that the tribe actually brought here.

[00:15:11] Speaker 05:
They're challenging the manner in which the secretary calculated these amounts.

[00:15:20] Speaker 04:
I don't think that's accurate.

[00:15:23] Speaker 04:
Their argument, the secretary's position is that population data is an adequate proxy for increased expenditures.

[00:15:32] Speaker 04:
The tribe's argument is that it isn't.

[00:15:35] Speaker 04:
Well, I don't, with respect.

[00:15:37] Speaker 04:
It isn't, and it isn't because it isn't for this tribe.

[00:15:44] Speaker 04:
because the data said it had zero.

[00:15:46] Speaker 04:
It isn't for the amicus because the secretary's data said it had zero.

[00:15:51] Speaker 04:
And it isn't for at least, we went through the list, is at least 10 other tribes that came up zero in it.

[00:15:59] Speaker 04:
So their argument goes directly to the secretary's rationale for using the IHBG data.

[00:16:08] Speaker 04:
Secretary said it was a proxy.

[00:16:09] Speaker 04:
The tribe says, no, it's not a proxy because

[00:16:14] Speaker 04:
it and other tribes came up zero, even though they have significant populations.

[00:16:21] Speaker 04:
That's their argument.

[00:16:23] Speaker 05:
So a couple of points here.

[00:16:25] Speaker 05:
One, this reference to increased expenditures, I mean, that itself is something that is not

[00:16:35] Speaker 05:
That's not an objective independent fact that's directly ascertainable.

[00:16:41] Speaker 05:
These are numbers that weren't known because the time period hadn't run yet.

[00:16:45] Speaker 05:
And they are in fact affected by the secretary's determination because how much a tribe spends will be We all accept that.

[00:16:54] Speaker 04:
And that's why the secretary said it needed a proxy.

[00:16:58] Speaker 05:
Right.

[00:16:59] Speaker 05:
Yes.

[00:16:59] Speaker 05:
So maybe I'll walk through what the secretary said here.

[00:17:03] Speaker 05:
He said, as your honor indicated by necessity and statutory design, there has to be an estimate.

[00:17:10] Speaker 05:
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 costs for medical and public health needs.

[00:17:22] Speaker 05:
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 government's jurisdiction and other areas where the tribal government provides services with adjustments for overlapping.

[00:17:39] Speaker 04:
Yeah, I've read all that.

[00:17:42] Speaker 04:
I understand all that.

[00:17:43] Speaker 04:
Suppose the IHBG data here

[00:17:49] Speaker 04:
But suppose the results of it were totally random.

[00:17:52] Speaker 04:
In other words, suppose for whatever reason it had absolutely no relationship to expenditures and the funds got distributed based on that.

[00:18:02] Speaker 04:
Would that not be reviewable by this court?

[00:18:05] Speaker 05:
Well, I don't think so for reasons the district court laid out because I think that goes to the manner, but even if so, I think we could look at.

[00:18:16] Speaker 04:
Just let me finish my question.

[00:18:18] Speaker 04:
So you're telling me that if the population data produced random results, that is the money was distributed with no reference

[00:18:29] Speaker 04:
to the increased expenditure.

[00:18:31] Speaker 04:
In other words, it was in fact not based on increased expenditures.

[00:18:35] Speaker 04:
I use the word from the statute, based on.

[00:18:37] Speaker 04:
It would not be reviewable.

[00:18:41] Speaker 04:
That's your position?

[00:18:44] Speaker 05:
Well, I don't think we need to actually get that far because I don't think there's any real dispute that

[00:18:52] Speaker 05:
that this population measure, in fact, covers increased expenditure.

[00:18:57] Speaker 01:
Isn't that the merits question?

[00:18:58] Speaker 01:
That's not the reviewability question.

[00:19:02] Speaker 01:
Now you're talking about the merits question.

[00:19:04] Speaker 05:
Well, so perhaps this court's decision in Milk Train would be helpful there.

[00:19:13] Speaker 05:
In that case, the statute said that a similar type of assistance would be distributed in a manner determined appropriate by the secretary to compensate for a certain year losses.

[00:19:27] Speaker 05:
The secretary there set a limit on eligible production levels so that no assistance for losses above those levels would be provided.

[00:19:35] Speaker 05:
The court said we can't review that because the statute left it to the secretary's discretion how to

[00:19:41] Speaker 05:
distribute those funds, the court didn't kind of ask whether the limit was unreasonable or had no relationship to losses.

[00:19:52] Speaker 05:
It said that's something the statute puts aside.

[00:19:55] Speaker 00:
Similarly, here- The whole second half of Milk Train, which was at the court said that it could review

[00:20:02] Speaker 00:
whether the secretary compensated the milk producers for economic losses that occurred in 1999 rather than in prior years.

[00:20:13] Speaker 00:
And that wasn't, we didn't find there

[00:20:21] Speaker 00:
that that was unreviewable because it was kind of part and parcel of the ultimate discretionary decision.

[00:20:29] Speaker 00:
We said that the discretionary decision had to be based on that factor.

[00:20:35] Speaker 00:
So why isn't that exactly what we have here?

[00:20:38] Speaker 05:
Well, that's right.

[00:20:39] Speaker 05:
And the court undertook a very limited review just to assess that the secretary was there looking at the right thing, aiming at trying to calculate.

[00:20:49] Speaker 00:
It may not be that there's very much review, but there was review.

[00:20:53] Speaker 00:
And you're arguing that there is no review here.

[00:20:56] Speaker 00:
So why doesn't Milk Train sink your argument?

[00:21:00] Speaker 05:
I think it doesn't for the type of challenge that

[00:21:04] Speaker 05:
that the tribe has brought, which is analogous to the kind of production limit challenge in Milk Train rather than the kind of purpose of challenge in Milk Train.

[00:21:15] Speaker 05:
But even if we're wrong on reviewability, the secretary's decision document laid out in the May 5th announcement and the FAQs,

[00:21:29] Speaker 05:
establish a clear relationship between the increased expenditures and the specific population.

[00:21:39] Speaker 00:
Are you saying that we should go ahead and go to the merits?

[00:21:43] Speaker 00:
I thought you said that if we find reviewability, we should remain.

[00:21:49] Speaker 05:
I agree.

[00:21:50] Speaker 05:
That is the normal course that this court says it should follow and should follow here.

[00:21:56] Speaker 05:
I was just trying to address if you had questions about that.

[00:21:59] Speaker 05:
But yes, the normal course when a district court issues an injunction on a basis that this court or denies an injunction on a basis that this court finds an abuse of discretion or involving legal error.

[00:22:13] Speaker 05:
is to remand back to the district court for the discretionary weighing of the factors.

[00:22:19] Speaker 05:
And that is what this court should do.

[00:22:21] Speaker 04:
Let me ask you this.

[00:22:25] Speaker 04:
Two questions, one related to this point.

[00:22:28] Speaker 04:
One of your arguments in your brief for why this court should not address the merits, is it the record?

[00:22:37] Speaker 04:
Is it before the district court?

[00:22:40] Speaker 04:
We don't have the record.

[00:22:43] Speaker 04:
But we have the May 5th announcement.

[00:22:46] Speaker 04:
We have the data, the IHBG data spreadsheets.

[00:22:53] Speaker 04:
And we have these this June 4th frequently asked questions and

[00:22:58] Speaker 04:
The latter document basically answers every question.

[00:23:01] Speaker 04:
It says, it explains why the secretary selected the data, the data system it did.

[00:23:10] Speaker 04:
It explained why it didn't accept, it didn't use other data.

[00:23:14] Speaker 04:
It explained how it handled tribes who didn't show up in the database.

[00:23:20] Speaker 04:
What more do we need to decide this case?

[00:23:22] Speaker 04:
At a minimum, what more do we need to decide at least the preliminary junction question?

[00:23:26] Speaker 05:
So I don't think you need anything more to decide the preliminary injunction question.

[00:23:32] Speaker 05:
You could do that on the same basis for what was before the district court.

[00:23:36] Speaker 05:
And I agree that these documents

[00:23:39] Speaker 05:
lay out an adequate rationale.

[00:23:41] Speaker 05:
I think our argument was that if you needed to engage in a kind of searching inquiry to what the secretary had before him, that would normally be done on the basis of the administrative branch.

[00:23:53] Speaker 04:
I understand that.

[00:23:54] Speaker 04:
I understand that point.

[00:23:55] Speaker 04:
But speaking of the preliminary injunction, the district court, am I right about this?

[00:24:00] Speaker 04:
Just tell me if I'm right.

[00:24:01] Speaker 04:
The district court seemed to have accepted that there was irreparable injury.

[00:24:09] Speaker 04:
but that the tribe wouldn't succeed on the merits.

[00:24:11] Speaker 04:
You're not challenging the irreparable injury issue here, right?

[00:24:16] Speaker 04:
That's correct.

[00:24:17] Speaker 04:
OK.

[00:24:18] Speaker 04:
And my last question is going back to our discussion earlier.

[00:24:24] Speaker 04:
OK, so when we interpret a statute, we have to give meaning to all of its words.

[00:24:34] Speaker 04:
So what, in your view of this statute, do you think the phrase is based on increased expenditures of dot dot dot?

[00:24:44] Speaker 04:
What role does that language play in the statute?

[00:24:48] Speaker 05:
I think that's telling the secretary what he should base his determination of the amount paid.

[00:24:56] Speaker 05:
It should have a relationship to increased expenditures.

[00:25:03] Speaker 04:
and say once more then why that isn't a sufficient limitation in the statute to make the secretary's ultimate decision reviewable?

[00:25:14] Speaker 04:
Without telling me about the merits.

[00:25:17] Speaker 05:
I think because it's nested in the secretary's determination, the secretary is determining what the increased expenditures are in a manner that he determines appropriate.

[00:25:30] Speaker 05:
And I think this brings up that kind of

[00:25:32] Speaker 05:
subjective standard of the type that I said at issue in Webster and Claybrook.

[00:25:39] Speaker 05:
CC distributors is another one where the secretary of defense there had to determine whether something must be done by the military.

[00:25:48] Speaker 05:
And this court says the statute doesn't provide a reference point for us to look at.

[00:25:54] Speaker 05:
The only statutory reference would be the secretary's determination.

[00:25:57] Speaker 05:
And so it's that kind of

[00:25:59] Speaker 05:
distancing, having it be based on the secretary's determination, in combination with kind of a whole set of factors about this, the case law tells us to look at the type of administrative action we have, the statutory structure, and kind of the overall scheme.

[00:26:17] Speaker 05:
Here we have a structure that gave very detailed instructions for one part, few instructions for another,

[00:26:24] Speaker 05:
It's 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.

[00:26:34] Speaker 05:
So the secretary can't just do one at a time.

[00:26:37] Speaker 05:
It has to be done kind of comprehensively.

[00:26:39] Speaker 05:
And we think all these facts suggest that this is unsuitable for judicial review.

[00:26:44] Speaker 04:
Mr. Palm, thank you.

[00:26:47] Speaker 04:
I have some further questions.

[00:26:49] Speaker 04:
We've got some more questions here.

[00:26:51] Speaker 01:
Go ahead.

[00:26:52] Speaker 01:
So I have three questions for you.

[00:26:55] Speaker 01:
The first is, imagine the secretary said, I'm going to base my determination on the alphabet and tribes that would begin with the letters A through M get the money, tribes with M through Z do not.

[00:27:14] Speaker 01:
Would we be able to review that?

[00:27:19] Speaker 05:
I don't think so.

[00:27:20] Speaker 01:
That's sort of a yes or no question.

[00:27:22] Speaker 01:
You can explain, but I need a yes or no.

[00:27:25] Speaker 01:
Is that reviewable or not reviewable?

[00:27:28] Speaker 05:
No, but I don't think that you need to agree with me on that point in order to.

[00:27:33] Speaker 01:
Why no?

[00:27:34] Speaker 01:
I understand that you have a fallback position, but why no?

[00:27:38] Speaker 05:
Because of kind of for the reasons I was trying to lay out before, because of the

[00:27:47] Speaker 05:
way this is focused on the secretary's determination.

[00:27:50] Speaker 01:
All right, if that's the case, how do you explain the Supreme Court's decision in Department of Commerce versus New York from last year?

[00:27:59] Speaker 01:
That's the census case in which the court, the same argument is made.

[00:28:05] Speaker 01:
And the secretary said he had unreviewable decisions about what questions to include in the census.

[00:28:12] Speaker 01:
Court says we disagree to be sure the section instructs the secretary to quote, take a decennial census in such form and content as he may determine.

[00:28:25] Speaker 01:
Nonetheless, the court said it was reviewable because the census imposes a quote duty to conduct a sentence census that is accurate and that fairly accounts for the crucial representational rights that depend on the census.

[00:28:39] Speaker 01:
That wasn't even from the statute, that was from a Supreme Court opinion.

[00:28:43] Speaker 01:
So there's a case just last year from the United States Supreme Court in which the statute says, as the secretary may determine, and in which the court said that does not resolve the reviewability question.

[00:28:55] Speaker 01:
What's your answer to that?

[00:28:57] Speaker 05:
So I think because then we're looking at what is being determined, which is an important thing here.

[00:29:04] Speaker 05:
The census count is kind of independent, objectively ascertainable concept.

[00:29:12] Speaker 05:
These increased expenditures are not.

[00:29:15] Speaker 01:
It's something that... This went only to the question of what questions could be asked.

[00:29:20] Speaker 01:
And the statute said in such form and content as he may determine.

[00:29:26] Speaker 01:
Yet the court said that wasn't non-reviewable.

[00:29:30] Speaker 05:
Because I think the subject of what's being determined is relevant.

[00:29:36] Speaker 05:
And here what's being determined is something that doesn't exist independently of the secretary's actions.

[00:29:41] Speaker 01:
Well, this does.

[00:29:42] Speaker 01:
Why doesn't this?

[00:29:43] Speaker 01:
This statute is pretty specific as to the basis.

[00:29:48] Speaker 01:
We've been saying increased expenditures, but dot, dot, dot.

[00:29:51] Speaker 01:
But the rest of the sentence says, based on increased expenditures of each sub-tribal government relative to aggregate expenditures in fiscal year 2019.

[00:30:00] Speaker 05:
I think for two reasons.

[00:30:04] Speaker 05:
One, the increased expenditures haven't happened yet.

[00:30:09] Speaker 01:
They haven't, but you could have based it on how much the increased expenditures have happened so far.

[00:30:15] Speaker 01:
That would be an objective measure.

[00:30:17] Speaker 05:
Well, and second, there's a kind of circularity to this where the increased expenditures will be influenced by the secretary's actions.

[00:30:33] Speaker 05:
The amount of money that the secretary provides will influence what the tribes actually spend.

[00:30:39] Speaker 01:
Well, Congress didn't say that.

[00:30:41] Speaker 01:
Congress said this is the way you do it.

[00:30:43] Speaker 01:
And it gives a pretty objective way to do it.

[00:30:45] Speaker 01:
I'm not saying you had to do it that way.

[00:30:47] Speaker 01:
I'm not saying you couldn't use a proxy.

[00:30:49] Speaker 01:
But the question is, is it reviewable at all?

[00:30:52] Speaker 01:
Let me ask you another question.

[00:30:54] Speaker 01:
which Judge Tatel began with questioning her colleague on the other side, which I don't see how this can be regarded as a lump sum expenditure.

[00:31:04] Speaker 01:
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.

[00:31:13] Speaker 01:
That case, it came from a purely annual lump sum appropriation.

[00:31:17] Speaker 01:
And the GAO makes clear the difference.

[00:31:20] Speaker 01:
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 agent's department can use for whatever it wants and that puts into this thing.

[00:31:31] Speaker 01:
This is a specific line item of money that has to be spent for a specific purpose.

[00:31:39] Speaker 01:
Why do you regard this as a lump sum?

[00:31:41] Speaker 05:
I 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.

[00:31:49] Speaker 01:
We heard that in the back and forth between Judge Tatel and your colleagues.

[00:31:52] Speaker 01:
So now I just want to ask the question about why you're not asking us to apply the wrong presumption here.

[00:32:02] Speaker 05:
I think it shares some features with the appropriation in lump sum.

[00:32:06] Speaker 05:
We have a general instruction of purpose and explicit

[00:32:11] Speaker 05:
I mean, in this case, explicit direction to the secretary to distribute it to kind of possible recipients as the secretary sees fit.

[00:32:20] Speaker 05:
It's also informed by kind of similar policy rationales.

[00:32:24] Speaker 05:
The nature of the task requires a considerable amount of judgment.

[00:32:29] Speaker 05:
The balance of factors.

[00:32:30] Speaker 01:
That is not the distinction between a lump sum.

[00:32:33] Speaker 01:
Judgment is not the distinction.

[00:32:36] Speaker 01:
A lump sum is when a large amount of money is given to an agency which can then distribute it to various programs as it wishes.

[00:32:43] Speaker 01:
This is only one program.

[00:32:45] Speaker 01:
It has to be done for this purpose, no other purpose.

[00:32:48] Speaker 01:
Yes, 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.

[00:32:58] Speaker 01:
If this is lump sum, almost everything that is appropriated is lump sum.

[00:33:05] Speaker 05:
So I take your point on the differences.

[00:33:08] Speaker 05:
We thought that some of the policy rationales apply involving the balancing of factors that an agency is better situated to do, taking into account kind of what better advances the purposes and priorities.

[00:33:27] Speaker 01:
Where are those factors?

[00:33:29] Speaker 01:
In which case use those factors to determine the difference between a lump sum and a line item?

[00:33:35] Speaker 05:
Well, Lincoln v. Vigil said that these are some of the factors that explain why the lump sum appropriation is unreviewable, and we think that those factors apply here.

[00:33:46] Speaker 05:
But ultimately, as this Court has emphasized repeatedly, this doesn't move the ball

[00:33:53] Speaker 05:
very far in one direction or the other.

[00:33:56] Speaker 01:
So you don't think you get any advantage from calling it a lump sum?

[00:33:59] Speaker 01:
I just want to make sure we understand that.

[00:34:01] Speaker 01:
So you don't think it's a big deal at all?

[00:34:03] Speaker 01:
Presumption isn't much different?

[00:34:06] Speaker 05:
I mean, the presumption helps.

[00:34:09] Speaker 05:
But this court has said that it actually, even if it flips,

[00:34:14] Speaker 05:
In the words of this court, it doesn't move the ball very far because judicial review is unavailable, regardless of which presumption applies, one of reviewability or non-reviewability, if there are no meaningful standards to cabin an agency's otherwise plenary discretion.

[00:34:30] Speaker 05:
And we think that's the case here for reasons I've set out.

[00:34:33] Speaker 05:
So whether it falls under Lincoln v. Vigil or something else, that's not dispositive here.

[00:34:43] Speaker 05:
it's whether there's kind of a meaningful standard in the statute that is the dispositive question.

[00:34:48] Speaker 00:
Okay, thank you.

[00:34:49] Speaker 00:
I don't want to intrude on Judge Garland here, but ordinarily under the APA there's a presumption of reviewability, correct?

[00:35:00] Speaker 05:
Yes.

[00:35:02] Speaker 00:
So you're saying that it doesn't matter if this is a lump sum

[00:35:12] Speaker 00:
appropriation when the Supreme Court and our court has said that there's a presumption of unreviewability with those?

[00:35:25] Speaker 05:
I'm not saying it makes no difference.

[00:35:27] Speaker 05:
It's kind of different ways of getting at a similar issue.

[00:35:33] Speaker 05:
And ultimately what matters is whether the statute provides a meaningful standard that this court can use to judge.

[00:35:40] Speaker 05:
If it does, then either a presumption against, a presumption of non-reviewability is rebutted.

[00:35:50] Speaker 05:
If there's no standard, no meaningful standard, then a presumption of reviewability is rebutted.

[00:35:57] Speaker 05:
So ultimately what's just positive is the, as I said, whether the statute sets out a meaningful standard to review, a reference point that this court can use.

[00:36:10] Speaker 00:
So turning to the facts of this case, why was the population in the IHBG formula area for Shawnee zero?

[00:36:24] Speaker 05:
My understanding, which the council for the tribe has confirmed, is it's because the tribe doesn't have a formula area.

[00:36:34] Speaker 05:
Formula area,

[00:36:36] Speaker 05:
As I said, is generally the area that a tribe has jurisdiction over or provide services in.

[00:36:42] Speaker 05:
There are many different ways for a tribe to obtain a formula area.

[00:36:46] Speaker 05:
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.

[00:36:53] Speaker 05:
This tribe does not have a formula area and the secretary explained when

[00:37:02] Speaker 05:
as part of the selection of a population measure, rejected enrollment data because it doesn't distinguish between the population that is within a tribal area and those that are outside.

[00:37:16] Speaker 05:
And the secretary was specifically focusing on expenditures related to the public health emergency, such as increased costs for medical and public health needs.

[00:37:26] Speaker 05:
And this selection of this measure reflected the belief that tribal governments would be best positioned to make expenditures for emergency-related issues for areas of the tribal where the tribe has jurisdiction and provides services.

[00:37:42] Speaker 05:
So that's the connection that was laid out in the appendix.

[00:37:46] Speaker 04:
Do tribes without formula areas have expenditures related to the pandemic?

[00:37:55] Speaker 05:
They might.

[00:37:57] Speaker 05:
And the tribe here received funds.

[00:38:02] Speaker 05:
It received both an allocation under the population.

[00:38:06] Speaker 04:
That wasn't my question.

[00:38:09] Speaker 04:
First of all, tribes without formula areas have budgets and expenditures, correct?

[00:38:16] Speaker 04:
Yes.

[00:38:17] Speaker 04:
OK.

[00:38:17] Speaker 04:
And are those expenditures related to the pandemic?

[00:38:20] Speaker 04:
I mean, would those expenditures go up in 2020 over 2019?

[00:38:25] Speaker 05:
So they could.

[00:38:26] Speaker 05:
The Secretary explained this a little bit in the May 5th document that he didn't look just at kind of the 2019 budget and do a mechanical adjustment because that would capture some things that might be increased expenditures but would not necessarily be appropriate uses of the funds under the CARES Act.

[00:38:51] Speaker 05:
The CARES Act sets out certain

[00:38:53] Speaker 05:
requirements for the use of funds.

[00:38:56] Speaker 05:
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 for reasons I've addressed.

[00:39:12] Speaker 04:
Where would I look to find a judgment by the secretary that the distribution of the full

[00:39:22] Speaker 04:
allocation of funds to a tribe depends on whether it has or doesn't have a formula.

[00:39:27] Speaker 04:
Because that seems to be the distinction here, right?

[00:39:30] Speaker 04:
The tribes

[00:39:33] Speaker 04:
tribes that, see if I'm right about this, this tribe and the Amicus and the others that came out to be zero, they are all tribes, presumably don't have formula areas, whereas the tribes, there were, the database, the HUD database, I'm just leaving my notes, included

[00:39:58] Speaker 04:
some non-eligible tribes and excluded three tribes completely, but I assume those were all tribes which the secretary reached out to to get accurate data, right?

[00:40:08] Speaker 04:
Those had formulas?

[00:40:11] Speaker 05:
Those three tribes did have formula areas.

[00:40:13] Speaker 05:
That's what the secretary asked.

[00:40:14] Speaker 04:
That's the decision that the secretary seems to be making here, right?

[00:40:17] Speaker 04:
That

[00:40:18] Speaker 04:
that money will be distributed under the HUD database to tribes, the full alignment to tribes that have formula areas, but those without formula areas get 100 grand, right?

[00:40:36] Speaker 05:
With respect to the population component of the award, there were other components that... Yeah, well taken point.

[00:40:43] Speaker 04:
I understand that.

[00:40:43] Speaker 04:
So where do we look in the record to find why the secretary thought that the presence or absence of a formula area was somehow related to the increased expenditures from 2019 to 2020?

[00:41:04] Speaker 05:
So I think there are two places.

[00:41:06] Speaker 05:
At the appendix 99 to 100,

[00:41:09] Speaker 05:
The secretary explains how this population measure is based on formula area, which corresponds broadly to jurisdiction and where the tribe provides services and incorporates adjustments to address overlapping jurisdictions.

[00:41:26] Speaker 05:
And then in the FAQs at appendix 103 and 104, the secretary

[00:41:37] Speaker 05:
talked about how tribal enrollment doesn't distinguish between members living within the tribal area and those living outside the tribal area, whereas formula area does kind of make that distinction.

[00:41:49] Speaker 05:
So this reflects the belief that tribes would be kind of better positioned to make expenditures for the public health emergency in the areas where they provide services.

[00:42:00] Speaker 05:
The secretary also identified other reasons why he chose this measure.

[00:42:07] Speaker 05:
It's, he said, explained consistent and reliable.

[00:42:11] Speaker 05:
It's updated annually using the same census data that Congress required Treasury to use for the allocations to state and local governments.

[00:42:19] Speaker 05:
That's the population estimate program, I believe it's called.

[00:42:23] Speaker 05:
It's also familiar.

[00:42:25] Speaker 05:
This formula was conducted through negotiated rulemakings with tribes.

[00:42:30] Speaker 00:
We've read all of that, but I don't think that any of it really answers the question of why

[00:42:38] Speaker 00:
It's a fair assumption or it's rational or reasonable to assume that a tribe with no formula area doesn't provide any services.

[00:42:55] Speaker 05:
So I don't think that is, the secretary certainly didn't take that

[00:43:01] Speaker 05:
view.

[00:43:02] Speaker 05:
That's why, among other reasons, there's more than one component to the award.

[00:43:07] Speaker 05:
There's also an employment component and one that's just tied to actual expenditures that had been incurred by the time the award was made.

[00:43:17] Speaker 05:
So this tribe obtained over $500,000 in that second

[00:43:24] Speaker 05:
allotment.

[00:43:25] Speaker 05:
I 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 positioned to make expenditures for

[00:43:52] Speaker 05:
the population living within their area.

[00:43:54] Speaker 05:
The statute doesn't create an entitlement to kind of a penny for penny reimbursement of increased expenditures.

[00:44:01] Speaker 05:
I mean, that's impossible given the twin kind of goals here of 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.

[00:44:17] Speaker 05:
So this has to be done with an eye towards

[00:44:21] Speaker 05:
the whole program, giving one tribe more necessarily means that the other tribes receive less.

[00:44:27] Speaker 05:
So this has to be done by kind of a general formula that works kind of on the whole.

[00:44:33] Speaker 05:
There may be certain tribes that come out better and certain that come out less, but that doesn't make it an unreasonable action, especially in the circumstances we have here.

[00:44:49] Speaker 04:
Judge Wilkins, Judge Garland, any further questions?

[00:44:53] Speaker 01:
No, thank you.

[00:44:54] Speaker 01:
No.

[00:44:56] Speaker 04:
Thank you.

[00:44:57] Speaker 04:
Thank you.

[00:44:57] Speaker 04:
We've got your argument.

[00:44:59] Speaker 04:
Mr. Zucker, I think you had a little time, not Mr. Zucker, Ms.

[00:45:02] Speaker 04:
Thomas.

[00:45:03] Speaker 04:
I think you have a few minutes.

[00:45:05] Speaker 04:
No, did Ms.

[00:45:05] Speaker 04:
Thomas have time left?

[00:45:08] Speaker 02:
Ms.

[00:45:08] Speaker 02:
Thomas had no time left.

[00:45:10] Speaker 02:
Pardon me?

[00:45:11] Speaker 02:
Ms.

[00:45:11] Speaker 02:
Thomas had no time left.

[00:45:13] Speaker 04:
Okay, Ms.

[00:45:13] Speaker 04:
Thomas, you can take a minute.

[00:45:16] Speaker 03:
Okay, thank you, Your Honor.

[00:45:17] Speaker 03:
A couple of points then real quick.

[00:45:19] Speaker 04:
First of all, this won't come out of your minute, I promise.

[00:45:23] Speaker 04:
But do you agree with Mr. Pollum that the reason your client showed up with zero is because it doesn't have a formula area?

[00:45:34] Speaker 04:
Is that the reason?

[00:45:34] Speaker 03:
Yes, that's the way the, yes, yes, your honor.

[00:45:36] Speaker 03:
That's the way the IHBG program works.

[00:45:39] Speaker 03:
Okay, go ahead.

[00:45:41] Speaker 03:
So a couple of points real quick.

[00:45:42] Speaker 03:
First, with respect to the reviewability and the meaningful standards, the United States, the government would 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.

[00:46:04] Speaker 03:
So there's two sets of components here.

[00:46:06] Speaker 03:
The first is how much money should tribes get?

[00:46:09] Speaker 03:
And the second is making sure that all of the money is distributed.

[00:46:14] Speaker 03:
And the government's focused on that last standard of making sure all of the money's distributed.

[00:46:19] Speaker 03:
And so this court has rightly pointed out that the first part of the sentence, and as a reminder, this court ruled in the Chehalis versus Mnuchin case, a related case, that it has the ability to review the government's spending decisions here.

[00:46:34] Speaker 03:
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.

[00:46:43] Speaker 03:
Secondly, with respect to the merits, and I know that the court was asking about the merits, the use of the IHBG formula is obviously in error because it is in error.

[00:46:54] Speaker 03:
The data in the formula with respect to the Shawnee tribe is

[00:46:58] Speaker 03:
clear error.

[00:46:59] Speaker 03:
It is clearly false.

[00:47:01] Speaker 03:
And so to the extent that this court, um, 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.

[00:47:12] Speaker 03:
And since this court owes no deference to the lower court, it owes no deference to the government's decision.

[00:47:17] Speaker 03:
It sits in appellate review of the government's decision.

[00:47:21] Speaker 03:
As this court has already pointed out, the relevant facts are already in front of it with respect to the reason.

[00:47:26] Speaker 00:
If we were to review this,

[00:47:28] Speaker 00:
Isn't our review, as you have, you know, pled this case, doesn't it really boil down to whether it was arbitrary and capricious for the government to assign zero population to those tribes that had no formula area?

[00:47:52] Speaker 00:
Isn't that really the question that we would review?

[00:47:55] Speaker 03:
That's the heart of the question, Your Honor.

[00:47:58] Speaker 03:
The heart of the question is whether a zero population number, which is obviously false and legally impossible, whether that is textbook arbitrary and capricious and contrary to the law.

[00:48:11] Speaker 00:
The law says tribes should be funding- I think that the argument's a little different than that.

[00:48:15] Speaker 00:
It's not whether the number is false.

[00:48:20] Speaker 00:
It's whether formula area,

[00:48:25] Speaker 00:
is a adequate proxy for increased expenditures, right?

[00:48:32] Speaker 03:
We think both questions, Your Honor.

[00:48:34] Speaker 03:
We challenge the use of the IHBG formula, which uses the formula area, which the tribe doesn't have.

[00:48:42] Speaker 03:
And then we challenge the use, the selection of the zero population, notwithstanding, of course, the fact that there's additional data for the federal government.

[00:48:51] Speaker 03:
So for the federal government to use obviously false data in its decision is in fact textbook arbitrary and capricious.

[00:49:00] Speaker 03:
Even if the formula, the selection of IHBG is reasonable, which we don't waive that argument, but even if it is a reasonable formula to use, the purposeful selection of zero population when there was other data available to the government to use,

[00:49:19] Speaker 03:
is it's also arbitrary and capricious.

[00:49:23] Speaker 03:
And so we would suggest that this court can in fact reach the merits of the case.

[00:49:28] Speaker 03:
Again, it owes no deference to the lower court.

[00:49:30] Speaker 03:
But if the court decides not to reach the merits of the case, 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 merits of the case.

[00:49:43] Speaker 03:
The government has admitted and the lower court has found that there is irreparable harm.

[00:49:49] Speaker 03:
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 and awarding the tribe the $12 million that it seeks.

[00:50:02] Speaker 03:
Alternatively, if the court does not reach the merits, we ask it to overturn the preliminary injunction motion and remand for further proceedings.

[00:50:11] Speaker 04:
Okay, thank you.

[00:50:12] Speaker 04:
Thank you, Mr. Cohn.

[00:50:14] Speaker 04:
Thank you, both the cases submitted.