[00:00:01] Speaker 00:
Case number 22-5089 et al.

[00:00:04] Speaker 00:
Shawnee Tribe and Nicosukee Tribe of Indians of Florida, 20 CD 2792.

[00:00:10] Speaker 00:
Primary Bandwith Zawah Domination, 21 CD 12 at balance versus Janet Alley-Ellen in her official capacity as Secretary of the United States Department of the Treasury et al.

[00:00:21] Speaker 00:
Mr. Blank for the balance, general issues and issues specific to the primary Bandwith Zawah Domination,

[00:00:28] Speaker 00:
Mr. Abney, party of balance, issue specific to the Mekosuki Farm of Indians.

[00:00:33] Speaker 00:
Mr. Jen, for any other leads.

[00:00:36] Speaker 03:
Thank you.

[00:00:37] Speaker 03:
Welcome, Council.

[00:00:53] Speaker 05:
Thank you, Your Honor.

[00:00:53] Speaker 06:
May it please the court?

[00:00:54] Speaker 06:
Teams blank on behalf of the Prairie Band Potawatomi Nation.

[00:00:58] Speaker 06:
There was a preliminary, before this argument, Your Honor, this court directs a briefing on the issue of truth.

[00:01:05] Speaker 06:
If the court doesn't have any specific questions on that issue, or if the court wants to hear argument on that issue, I'm happy to offer argument on that issue.

[00:01:12] Speaker 06:
Otherwise, I would proceed to the merits.

[00:01:16] Speaker 06:
Your Honor, this is the second time that this court has had the opportunity to address Treasury's distribution of CARES Act funds

[00:01:26] Speaker 06:
Under the statutory mandate, the Treasury was obligated to distribute funds based on increased expenditures.

[00:01:38] Speaker 06:
The last time before this court, it considered the argument of Shawnee Tribe, which was a tribe that was zeroed out under the IHBG population metric that Treasury had chosen for per capita worth 60% of the Title V Fund.

[00:01:55] Speaker 06:
Perry Van Potawatomi participated as an amicus in that argument, as did my co-appellant's Miccosukee tribe.

[00:02:04] Speaker 06:
When considering Shawnee's argument in that case, a case that Shawnee had lost at the district court level on the issue of reviewability, this court reached at least the preliminary injunction merits and concluded that the IHBG population metric was not a suitable proxy for population

[00:02:25] Speaker 06:
The court therefore remanded.

[00:02:27] Speaker 06:
While the case was on remand, the Treasury developed an alternative methodology, what we call in our papers the revised methodology.

[00:02:37] Speaker 06:
In the revised methodology, the Treasury took the top 15% of tribes that were most prejudiced by the choice of the IHBT population metric and cut off the remaining 85% of the tribes.

[00:02:52] Speaker 06:
That's 15% cut off.

[00:02:55] Speaker 06:
The Treasury calculated what we call the shortfall calculation.

[00:03:02] Speaker 06:
The shortfall calculation was a pretty clear calculation of the difference that the amount that the tribal government would have received in a world where tribal enrollment had been considered versus the world that had actually occurred where the IHBG population metric had been considered.

[00:03:23] Speaker 06:
This gave us a clear, or gave Treasury at least, a clear calculation of the difference and the effect of their poor choice of the IHBG population metric.

[00:03:35] Speaker 06:
Treasury then took the fatal mistake of implementing what we call the phase out.

[00:03:43] Speaker 06:
In the phase out, within that top 15%, Treasury elected to award 8888

[00:03:51] Speaker 06:
of the shortfall calculation to the tribal governments at the very top of the ratio rank.

[00:03:59] Speaker 06:
At the bottom of the ratio rank, Treasury only awarded 188.

[00:04:05] Speaker 06:
It created a literally descending allocation

[00:04:09] Speaker 06:
so that the tribes at the very highest receive the greatest percentage of funds in that shortfall calculation.

[00:04:17] Speaker 01:
So I understand that you make two arguments.

[00:04:20] Speaker 01:
One is that the statute prohibited the secretary from doing this.

[00:04:27] Speaker 01:
And the secretary responds, well, look at the terms of the statute in terms of vesting discretion in the secretary.

[00:04:37] Speaker 01:
Then secondly, as I understand it, you argue that the allocations should have been equal, even if the secretary wanted to phase out in terms of looking at the top 15 whom it considered were the worst off.

[00:05:00] Speaker 01:
Everybody within that lesser group should have received the same amount.

[00:05:08] Speaker 01:
stated your arguments accurately?

[00:05:13] Speaker 05:
Yes, I think that's a fair summary of our arguments.

[00:05:16] Speaker 01:
So to rule for you, we would have to find that although the statute gave the secretary this broad discretion, in fact, that discretion was limited and

[00:05:36] Speaker 01:
notwithstanding the secretary's consideration of the fact that most of this money had already been distributed.

[00:05:46] Speaker 01:
There was some poor data in terms of exact numbers and the secretary's opinion explains that.

[00:05:58] Speaker 01:
she really could only divide whatever amount she found was still available by 15.

[00:06:08] Speaker 01:
Why is that a reasonable way to view the secretary's legal authority under the circumstances when she was ruling?

[00:06:29] Speaker 06:
In Shawnee 1, Treasury tried to avoid any review of its allocation.

[00:06:37] Speaker 06:
Treasury lost that argument, and this court remanded and granted a preliminary injunction.

[00:06:44] Speaker 01:
Right.

[00:06:44] Speaker 01:
So we're beyond that.

[00:06:45] Speaker 01:
I'm trying to focus on where we are now in light of our previous decision.

[00:06:52] Speaker 06:
Our argument is that Treasury needed to

[00:06:55] Speaker 06:
maintain its allegiance to the statutory mandate.

[00:07:00] Speaker 06:
The secretary had a statutory mandate to track increased expenditure, to anticipate increased expenditures, both in 2020 and 2021.

[00:07:10] Speaker 01:
There was no- Suppose she found that the data, while based on her revised methodology,

[00:07:24] Speaker 01:
was much better and consistent with the statute.

[00:07:30] Speaker 01:
Nevertheless, she could make no distinctions, maybe for that reason, between the top 15.

[00:07:38] Speaker 06:
So as a preliminary matter, there is no explanation for why, there's no explanation with any

[00:07:50] Speaker 06:
connection to increased expenditures that Treasury used in its contemporaneous decision-making on the issue of why it was going to implement the phase-out.

[00:08:00] Speaker 06:
That doesn't appear in the administrative record.

[00:08:02] Speaker 06:
And it's illogical on its face.

[00:08:04] Speaker 06:
If we look at how it affected the actual litigants, we end up with a per capita distribution to Perry Van Potawatomi of approximately $900, a per capita distribution to Shawnee Tribe in excess

[00:08:19] Speaker 06:
of $1,700.

[00:08:20] Speaker 06:
And on net, we look at an enrolled population for Prairie Band Potawatomi of 4515 by the government's old numbers and an enrolled population of 3,000 for the Shawnee Tribe.

[00:08:36] Speaker 06:
Despite having a total population that's 50% greater than Shawnee Tribe, the Prairie Band received

[00:08:45] Speaker 06:
30% less funds, even after accounting for the initial distribution in the IHPG methodology.

[00:08:53] Speaker 06:
Your Honor asked about the fact that the Treasury has heard that the Secretary has tried to excuse for decision making on the basis of the fact that that money had already been distributed.

[00:09:05] Speaker 06:
The case law

[00:09:06] Speaker 06:
does not justify agencies deviating from statutory terms just because of finite resources.

[00:09:14] Speaker 06:
Really here, Treasury, from the very beginning, there was no chance or no expectation, I don't think, in the statute, that that $8 billion was actually going to resolve every increased expenditure that tribal governments were going to face.

[00:09:29] Speaker 06:
It was finite resources in 2020 that remained finite resources in 2021.

[00:09:34] Speaker 01:
But specifically- The Secretary

[00:09:37] Speaker 01:
position, and I just want to be sure I understand your argument, is that even if where we are now in terms of the distribution of this money and what's happened and the secretary's essential acknowledgement about the era of her first methodology, she has changed that methodology

[00:10:05] Speaker 01:
accepted basically your arguments in that regard.

[00:10:10] Speaker 01:
But she's looked at in her or the secretary's view, those who are worse off, and that's the 15.

[00:10:27] Speaker 01:
And she makes distinctions between them.

[00:10:31] Speaker 01:
And your view is given the statutory provision about increased expenditures, the secretary would have to determine that any distinction between those 15 must pertain to increased expenditures?

[00:10:54] Speaker 05:
That's correct, Your Honor.

[00:10:55] Speaker 01:
In other words, what I'm trying to understand is, look, the secretary says most of this money has already been distributed, but there are these 15 that are left as the worst off among everybody who is claiming this limited amount of money that's left.

[00:11:23] Speaker 01:
And so at this phase,

[00:11:27] Speaker 01:
the analysis shifts a little bit.

[00:11:30] Speaker 01:
It's no longer at method or at month one where the secretary has the full amount.

[00:11:41] Speaker 01:
That's been distributed.

[00:11:44] Speaker 01:
So there's a small amount that's left and what's to be done with it.

[00:11:50] Speaker 01:
In other words, if it would be distributed as I think you're arguing, if it went to everybody,

[00:11:56] Speaker 01:
who was claiming, then it would just be a minuscule amount.

[00:12:02] Speaker 01:
On the other hand, if she looks at those who are the worst off, notwithstanding the distribution, she's going to focus on that group.

[00:12:14] Speaker 01:
And among that group, she's going to draw distinctions.

[00:12:17] Speaker 01:
And your argument is that given the statutory term of increased expenditures,

[00:12:26] Speaker 01:
That is all that the secretary could look at, even if she could find these 15 are the worst off.

[00:12:40] Speaker 01:
And that even with the new methodology, there was bound to be some uncertainty about numbers.

[00:12:52] Speaker 01:
And she, secretary's reasoning explains that.

[00:12:58] Speaker 01:
And so she made a judgment, I keep saying she, but I mean the secretary, just made a judgment about what do I do with this very limited amount of money?

[00:13:13] Speaker 01:
And you're just saying that is clearly not authorized by the statute and it's abuse of an abuse of discretion.

[00:13:24] Speaker 06:
That's great.

[00:13:25] Speaker 06:
Right, Your Honor, in within the 15%, which amounted to 88 tribes, the

[00:13:32] Speaker 06:
The Secretary should have endeavored to equalize the per capita payments.

[00:13:38] Speaker 06:
In the methodology underlying the 2021 revised methodology, there's no statement of why we're going to move away from justification for moving away from a per capita approach.

[00:13:50] Speaker 06:
Really, if you read the statement, it's simply saying we're going to make enrollment-based allocations rather than IHBG-based allocations.

[00:13:59] Speaker 06:
And then they implement phase out.

[00:14:02] Speaker 06:
phase out without justification relating to increased expenditures creates these perverse gross disparities in distribution.

[00:14:14] Speaker 06:
When the treasury had the shortfall calculation, that would have given the treasury a very straightforward

[00:14:23] Speaker 06:
more than 80 million dollars in funds.

[00:14:25] Speaker 06:
I don't think that there's any, in other words, there has to be some, it's not that Curry Band is on its own.

[00:14:37] Speaker 06:
It was intentional that Treasury would distribute funds to create gross disparities in per capita distributions between the low end of the 15% and the high end of the 15%.

[00:14:49] Speaker 06:
And there's no rational basis, there's no rational even post hoc justification that's ever come up for that.

[00:14:55] Speaker 06:
It's just excuses about the finite resources, excuses about discretion.

[00:15:04] Speaker 06:
And that is not meeting the burden of rational decision making by agency.

[00:15:10] Speaker 03:
Let me go back into the record a little bit here because it appears that within the briefs,

[00:15:17] Speaker 03:
trial record, that the numbers keep changing.

[00:15:21] Speaker 03:
And so do you all have an accurate basis for what actually got paid out?

[00:15:26] Speaker 03:
What were those distribution?

[00:15:27] Speaker 03:
What statistics were used in terms of populations and things of that nature?

[00:15:33] Speaker 06:
At many points in the course of this, those numbers were very opaque, even to the litigants.

[00:15:39] Speaker 06:
If you look at the record, there's no hard and fast

[00:15:45] Speaker 06:
statements regarding what numbers were used when.

[00:15:48] Speaker 06:
For example, both in 2020 and 2021, the Treasury had solicited enrollment figures, which led litigants to believe that those solicited enrollment figures were the ones that would be used.

[00:16:00] Speaker 06:
Ultimately, we found out that they used enrollment figures that had been maintained by the federal government separate from the solicitation.

[00:16:11] Speaker 06:
The Prairie Bands

[00:16:14] Speaker 06:
Prairie Bay received approximately $4 billion in sum from the 2020 distribution and the 2021 distribution.

[00:16:25] Speaker 06:
In addition, that 2021 distribution, because of an intervening error that was subsequently corrected,

[00:16:31] Speaker 06:
Um, there was a disparity between the time that the case was commenced, uh, until in time, the second amended complaint was filed until we sit here today in which another payment was made.

[00:16:45] Speaker 06:
Likewise, because he received a payment in 2022, but there's no dispute in the treasury's briefing on this, um, is quite clear that

[00:16:55] Speaker 06:
Prairie Band would be entitled to, could conceivably be entitled to relief from an additional payment.

[00:17:01] Speaker 06:
And that Prairie Band has not been treated the same as Miccosukee Tribe, as Shawnee Tribe.

[00:17:07] Speaker 03:
And you don't, do you dispute the different methodology that's used a second time, or is it just the rationalization for that methodology?

[00:17:17] Speaker 06:
We, we dispute the, we note that the rationalization is lacking.

[00:17:23] Speaker 06:
We note that it's lacking.

[00:17:25] Speaker 06:
But we dispute the methodology.

[00:17:27] Speaker 06:
We don't think that there could be any rational basis to treat these tribes at the top and the bottom of the 15% cutoff.

[00:17:35] Speaker 06:
So it was such gross disparities that a tribe would receive half of the per capita distribution.

[00:17:41] Speaker 06:
Perry Van received $900 per enrolled member, whereas Shawnee has received approaching $1,800 per enrolled member.

[00:17:52] Speaker 03:
What's the remedy at this point?

[00:17:54] Speaker 03:
Because there's obviously a lot less left.

[00:17:57] Speaker 03:
And so what's the remedy at this point?

[00:18:00] Speaker 06:
Perry Van proactively obtained an injunction on $7.6 million at the same time that Miccosukee obtained an injunction from a less than $2 million, which left $9 million at issue.

[00:18:20] Speaker 06:
those funds have been drawn against in the 2021 distribution.

[00:18:25] Speaker 06:
Those funds remain, and those funds, our understanding is that those funds are sufficient to bring Perry Van Potawatomi in parity with the best treated tribes within the 15%.

[00:18:37] Speaker 06:
The court should direct, and I understand that the court, there's not enough data in the record to give the court specific dollar value.

[00:18:47] Speaker 06:
But what the court should do is remand and direct

[00:18:50] Speaker 06:
Treasury to make an award that brings Prairie Van Potawatomi and Miccosukee tribe, to the extent they have not already been treated so, into parity with the best treated tribes within the 15%.

[00:19:04] Speaker 03:
But how do they do that in terms of any calculation other than you asking us to make them award exactly that $7.6 million?

[00:19:15] Speaker 03:
Should they be using any type of methodology, or are you asking us to just direct them to that payment?

[00:19:21] Speaker 06:
No, Your Honor, I think that the methodology will be encapsulated in the finish.

[00:19:28] Speaker 06:
We think that the way that the best treated tribes were treated was a fair way of treating the best treated tribes.

[00:19:35] Speaker 06:
Every other tribe after that 88 out of 88 was treated unfairly.

[00:19:39] Speaker 06:
We would just be want we would want to be receiving funds on the 88 out of 88 extraction.

[00:19:45] Speaker 06:
Okay, so I don't there's no additional calculations that need to be made.

[00:19:49] Speaker 06:
In fact,

[00:19:51] Speaker 06:
Treasury has demonstrated that it has both the funds and all the data it needs to make subsequent distributions to tribes like Miccosukee tribes and other tribes that were near the top to equal them out with the 88 out of 88s.

[00:20:07] Speaker 06:
And those payments went out, our understanding is, only weeks ago.

[00:20:11] Speaker 06:
So we don't think that there's a great deal of additional number crunching that needs to occur or very bad to have a remedy here.

[00:20:19] Speaker 03:
But I'm trying to wrestle with the fact that we can't, they have discretion.

[00:20:25] Speaker 03:
They're supposed to use that discretion based on the increased expenditures and rationalize that.

[00:20:32] Speaker 03:
So we can't really direct them to say this amount of money automatically paid to Prairie Band and or the other tribes.

[00:20:40] Speaker 03:
So I'm trying to get a balance of that.

[00:20:44] Speaker 03:
When you say remand, they're still supposed to have some judgment

[00:20:48] Speaker 03:
how they come up with their calculations.

[00:20:50] Speaker 03:
So how do we attribute language correctly to make sure that they do that and that we're not back here?

[00:20:58] Speaker 06:
The language should say that, um, very bad.

[00:21:04] Speaker 06:
Potawatomi is entitled to be treated on the same terms as the best treated, uh, tribal government within the top 15%.

[00:21:15] Speaker 03:
And judge,

[00:21:16] Speaker 03:
When you were responding to Judge Rogers earlier, you were using the term worse off.

[00:21:21] Speaker 03:
What data or how do we consider who's worse off in this regard?

[00:21:27] Speaker 06:
We think that these justifications that we see that didn't arrive, weren't in the contemporaneous decision making, but did appear in arguments before the district court and were adopted by the district court are flat wrong.

[00:21:39] Speaker 06:
There's no way that the zero tribes or the 88 out of 88 tribes

[00:21:45] Speaker 06:
was wronged in a way that is different in kind than the way that Harry Van Potawatomi was wronged by the choice of the IHPG population metric.

[00:21:59] Speaker 06:
It's a quantity, a qualitative versus quantitative distinction.

[00:22:03] Speaker 06:
Everything could be captured in that shortfall calculation, which was the way to quantify the harm in a way that was connected to

[00:22:13] Speaker 06:
to increased expenditures and anything that would consider any other sort of harm, optics

[00:22:23] Speaker 06:
some sort of harm attributed to zero, including the number of zero.

[00:22:28] Speaker 06:
To the extent that's a harm at all, that's not a harm.

[00:22:33] Speaker 06:
This is not a remedial statute.

[00:22:35] Speaker 06:
There was no intervening change in the law that allowed this to work as some sort of remedial statute as an apology to the zero tribes.

[00:22:43] Speaker 06:
They should have approached it on a one-to-one quantitative basis with the error to the prize at the top of the 15% and at the bottom of the

[00:22:53] Speaker 03:
And is this request that you would have that be a reversal or vacate the judgment?

[00:22:58] Speaker 03:
Do you have thoughts there?

[00:23:00] Speaker 05:
It would be a reversal of the district court's decision.

[00:23:06] Speaker 01:
Council, let me follow up on Judge Child's question.

[00:23:12] Speaker 01:
This court, in order to rule in your favor on the question of law,

[00:23:23] Speaker 01:
would rule, as I understand it, that because of the statutory requirement of increased expenditures, that is the only legal factor that the secretary could properly consider.

[00:23:49] Speaker 01:
Therefore, wouldn't it follow as to

[00:23:54] Speaker 01:
in terms of the secretary's responsibility to follow the law as clarified by this court as you request, wouldn't the secretary be required to take whatever amount is left?

[00:24:15] Speaker 01:
Look at the increased expenditures, if any, by all 85.

[00:24:24] Speaker 01:
of the tribes in the top 15%.

[00:24:27] Speaker 01:
See what each can come forth with and then allocate.

[00:24:40] Speaker 01:
And it may well be that your client or the appellants petitioners would not end up at the top, but

[00:24:53] Speaker 01:
along the lines you're arguing, the secretary would have followed the statutory directive of increased expenditures.

[00:25:08] Speaker 01:
So, I mean, for all the reasons Judge Child's question suggested, but I just want to be clear that even accepting your legal argument

[00:25:25] Speaker 01:
our order of reversal and remanding, as you would request, would not at this point be able to direct that appellants end up at the top.

[00:25:42] Speaker 01:
Do you get the point?

[00:25:43] Speaker 01:
That if we hold that there was a violation of law in distinguishing because of the statutory

[00:25:57] Speaker 02:
provision and the secretary's failure to provide an adequate explanation, the secretary would have to look at all 85.

[00:26:15] Speaker 01:
And just suppose hypothetically the secretary did so and had firm figures to show that

[00:26:26] Speaker 01:
Just hypothetically here, some of the other 85 had greater expenditures than the appellants here.

[00:26:37] Speaker 01:
Wouldn't the secretary be obligated to adjust the awards accordingly?

[00:26:48] Speaker 06:
I don't think it's necessarily the case

[00:26:53] Speaker 01:
I don't understand.

[00:26:54] Speaker 01:
We're telling the secretary in your view that the secretary was legally in error not to consider the statutory factor and send it back.

[00:27:15] Speaker 01:
And you seek an order that says giving appellants preferential treatment.

[00:27:24] Speaker 01:
But how could we do that without getting the information that you say the statute requires from the secretary and then seeing what the secretary comes up with?

[00:27:40] Speaker 05:
I think that Shawnee 1 is instructive on this point.

[00:27:43] Speaker 06:
The remedy in Shawnee 1 was not a simple remand.

[00:27:46] Speaker 06:
It was remand with specific instruction

[00:27:50] Speaker 06:
to the district court to implement an injunction in the amount that Shawnee had asked for.

[00:27:56] Speaker 06:
I think this recognizes that even if every tribe can't be resolved and every error can't be resolved, it's rational or it's acceptable for the court to fashion a remedy that would allow these litigants to have a remedy and to be treated fairly and to not be treated arbitrarily and capriciously.

[00:28:19] Speaker 06:
That's implicit.

[00:28:20] Speaker 06:
in the injunction that the court ordered in Shawnee 1.

[00:28:24] Speaker 01:
So if the secretary on remand were able to come up with a rationale and explain it, wouldn't that suffice?

[00:28:41] Speaker 01:
In other words,

[00:28:43] Speaker 01:
I'm not sure the remedy, and maybe I'm wrong about this, and maybe Judge Childs and Judge Silverman will disagree, that the remedy can be quite as simple as you request.

[00:28:58] Speaker 01:
Reverse and remand, and the appellants get as high as the top tier.

[00:29:09] Speaker 01:
Isn't it a bit more complicated if we say there was an era of law?

[00:29:17] Speaker 06:
The treasury as recently as six weeks ago, made payments to several tribes that were no different than the concept that Prairie Band is seeking to obtain.

[00:29:32] Speaker 01:
I understand that council.

[00:29:33] Speaker 01:
Maybe we just dropped this because I realize our argument has gone over, but that's one of the concerns I have on the remedy you seek.

[00:29:45] Speaker 06:
I'm sorry, Your Honor, but just to put a bit on that, any remedy, any amount that fixes the shortfall that fixes the shortfall embodied in the 2021 distribution would be a win.

[00:30:01] Speaker 01:
No, I understand that point.

[00:30:03] Speaker 01:
Thank you.

[00:30:20] Speaker 04:
Thank you, your honors, and may it please support George happening on behalf of the Mexican tribe of Indians of Florida.

[00:30:28] Speaker 04:
I think it's relevant to let the court know that for the Mexican tribe and for many other Native American tribes, the past is not really the past.

[00:30:39] Speaker 04:
The past is always present for the Mexican tribe, as it is for many other tribes in the past.

[00:30:46] Speaker 04:
and the Miccosukee tribe's unique history informs how the tribe operates and carries out its business on a day-to-day basis, even today.

[00:30:56] Speaker 01:
So, Council, could I just be clear that in the supplemental briefs, the Secretary argues that the tribe has received all of the funds to which it was claiming.

[00:31:11] Speaker 01:
Are you disputing that or

[00:31:15] Speaker 01:
Have you conceded that?

[00:31:17] Speaker 04:
We have received the supplemental payment of approximately $117,000 that Treasury represented they would be sending to us.

[00:31:26] Speaker 01:
And is that what the tribes sought?

[00:31:30] Speaker 04:
No, Your Honor.

[00:31:30] Speaker 04:
What we sought in our claim below, and this is in our second amended complaint, is to be treated consistently with how tribes were treated in the 2020 distribution.

[00:31:41] Speaker 04:
And that amount,

[00:31:42] Speaker 04:
is reflected in the amount of the injunction that the Miccosukee tribe sought that this court ordered and that the district court put in place.

[00:31:50] Speaker 04:
And that amount is approximately $2 million.

[00:31:54] Speaker 04:
Thus far, the Miccosukee tribe has received just short of $1 million.

[00:31:59] Speaker 01:
All right.

[00:32:00] Speaker 01:
So what else did you make clear that you were seeking from the secretary?

[00:32:07] Speaker 04:
Well, this case is about receiving funds, and so we believe that we have made our case clear at the court below that what we were seeking is to be treated on par with tribes that received a distribution in 2020 of approximately $3,000 per member.

[00:32:27] Speaker 04:
Thus far, Miccosukee has received a distribution of approximately between $1,500 and $1,700 per member.

[00:32:35] Speaker 04:
And that is a significant disparity, Your Honor.

[00:32:38] Speaker 01:
I get that.

[00:32:40] Speaker 01:
But I'm trying to understand this additional amount.

[00:32:44] Speaker 01:
If your injunction was for $2 million, and that was to make the tribe whole, and let's just hypothetically assume, as you admit that you received $1,700, and let's also assume, for purposes of argument, that the tribe gets the other $300,

[00:33:05] Speaker 01:
then have you received all, has the tribe received all the relief?

[00:33:10] Speaker 01:
I mean, this is just a jurisdictional question, Council.

[00:33:14] Speaker 04:
No, the tribe has not received all of the relief that it has been claimed in the court below.

[00:33:20] Speaker 01:
And you would point me to?

[00:33:22] Speaker 04:
I would point you to our second amended complaint where we requested to be treated on par with the tribes that received

[00:33:32] Speaker 04:
a 20-20 distribution of approximately $3,000 per member.

[00:33:38] Speaker 04:
And I would also point the court to the injunction that was entered in the court below.

[00:33:43] Speaker 04:
And the approximately $3,000 per member calculation resulted in approximately $2 million being placed under injunction at

[00:33:59] Speaker 03:
Are you suggesting that issue is not moot then?

[00:34:03] Speaker 04:
We do not believe the question is moot.

[00:34:05] Speaker 04:
And further to that point, Your Honor, I certainly give the government credit for attempting to remedy an error in paying Miccosukee an additional amount of funds.

[00:34:16] Speaker 04:
But there are certainly lingering questions about that error.

[00:34:19] Speaker 04:
And we don't have enough facts in front of us.

[00:34:21] Speaker 04:
We don't believe the court has enough facts in front of us to determine whether or not Miccosukee is now being treated on par

[00:34:29] Speaker 04:
with the other zero tribes that received a distribution, a second distribution in 2021.

[00:34:35] Speaker 04:
The record is just, it's really just a letter from Mr. Jed and it's the fact that we did receive an additional payment.

[00:34:43] Speaker 04:
We have no idea what the other zero tribes may have received.

[00:34:46] Speaker 04:
We don't know if we're being treated on par with the other zero tribes.

[00:34:50] Speaker 04:
So we don't believe our question is

[00:34:52] Speaker 04:
our pace has moved.

[00:34:54] Speaker 04:
And any time new facts are introduced into evidence, of course, those new facts need to be held up to scrutiny and examined.

[00:35:02] Speaker 04:
And we have not had the opportunity to do any of that.

[00:35:04] Speaker 04:
So I would go ahead.

[00:35:06] Speaker 01:
Excuse me, Judge Jones.

[00:35:08] Speaker 03:
Go ahead, Judge Rogers.

[00:35:09] Speaker 03:
Thank you.

[00:35:10] Speaker 01:
No, no, no.

[00:35:10] Speaker 01:
You finish your thought.

[00:35:12] Speaker 03:
No, I was just going to ask you the same question about the remedy, because if we send it back and then there's a recalculation on method given discretion to the Treasury with respect to the method of allocation, are you risking again, as Judge Rogers was indicating, perhaps a pro rata share, perhaps a description of

[00:35:34] Speaker 03:
being placed back into the pot, things of that nature.

[00:35:36] Speaker 03:
So what's your view on the?

[00:35:38] Speaker 04:
Well, Your Honor, you know, and we provided some supplemental briefing on this point, and maybe the supplemental briefing that we provided didn't quite answer all of the questions.

[00:35:47] Speaker 04:
But I think I'm not sure how much there is that money the Treasury has left.

[00:35:53] Speaker 04:
Apparently they have some amount of money left.

[00:35:56] Speaker 04:
We don't know the precise amount of that.

[00:35:58] Speaker 04:
But there is there remains approximately seven million dollars under injunction.

[00:36:02] Speaker 04:
And that money, approximately 5 million, is reserved for Prairie Band.

[00:36:07] Speaker 04:
Approximately 2 million is reserved for Miccosukee.

[00:36:12] Speaker 04:
I'm sorry, approximately 1 million remains for Miccosukee.

[00:36:15] Speaker 04:
I don't know the exact number that's under injunction.

[00:36:17] Speaker 04:
But it's my understanding that those funds are reserved for payments to Miccosukee and to Prairie Band.

[00:36:23] Speaker 04:
And I don't believe there's any bar using those funds to pay Miccosukee and Prairie Band.

[00:36:28] Speaker 04:
And it's a matter of appropriations law, and perhaps some supplemental briefing would be appropriate on this issue.

[00:36:33] Speaker 04:
But if another tribe were to file a case today or tomorrow, I don't think they would be entitled to any of those funds that are under injunction right now.

[00:36:42] Speaker 04:
So I don't think we really run the risk that.

[00:36:45] Speaker 03:
Well, and that's what I was getting at, too.

[00:36:47] Speaker 03:
You say under injunction for just those two tribes, not to go back to a general pot.

[00:36:55] Speaker 04:
That's my understanding, Your Honor.

[00:36:56] Speaker 03:
And your understanding comes from where?

[00:36:58] Speaker 04:
Uh, my understanding is judge made his border specifically reserve that money for make a city in Prairie van.

[00:37:07] Speaker 04:
Recent 2021 distribution and then the 2022 distribution to make a city received, uh, $117,000 recently received.

[00:37:17] Speaker 04:
All of that was drawn down from the money under injunction and that other money's that, uh, were paid to other tribes other than make a city.

[00:37:27] Speaker 04:
Prairie Band, those came from some other source that sort of remains unknown.

[00:37:31] Speaker 04:
We don't know, apparently, it's some CARES Act money that was left over from the distributions to the Alaskan Native corporations in the Chahalas case.

[00:37:39] Speaker 04:
But I don't really profess to have a lot of insight into other monies that Treasury has.

[00:37:44] Speaker 01:
Well, I'm afraid, counsel, you know, the burden is on you in part here to persuade us that in obtaining the injunction,

[00:37:55] Speaker 01:
And we have to look at the record here, obviously, in more detail.

[00:38:03] Speaker 01:
The tribe didn't get what it was asking for.

[00:38:07] Speaker 01:
And so the government's obligation went up to 2 million.

[00:38:14] Speaker 01:
If you get the 2 million, the government has satisfied your claim.

[00:38:25] Speaker 01:
In other words, it's a settlement.

[00:38:30] Speaker 01:
We're going to put this injunctive relief is to the 2 million.

[00:38:33] Speaker 01:
When we pay you that, all claims are satisfied.

[00:38:39] Speaker 01:
And you're saying, well, you're not that familiar.

[00:38:42] Speaker 01:
Well, I mean, I understand parties seek relief beyond the relief that the district court may award.

[00:38:53] Speaker 01:
But I'm trying to understand what was the nature of this injunctive relief.

[00:38:57] Speaker 01:
And that's why I started off.

[00:38:59] Speaker 01:
Let's just assume you get the three, the total 2 million.

[00:39:08] Speaker 01:
Why isn't your claim resolved as it were?

[00:39:16] Speaker 01:
And I mean, you're likely more familiar than I and Judge Child certainly is.

[00:39:21] Speaker 01:
Parties file complaints seeking relief on multiple grounds, but ultimately they may resolve matters with the other side and agree to some other figure or some other relief.

[00:39:36] Speaker 01:
And the case is over.

[00:39:40] Speaker 01:
That's what we're trying to nail down, because certainly the supplemental brief filed by the government suggests that.

[00:39:48] Speaker 01:
And you haven't disputed it.

[00:39:51] Speaker 01:
And that's why it was my first question.

[00:39:54] Speaker 01:
But anyway, I think we understand your position subject to any questions that Judge Childs may wish to.

[00:40:02] Speaker 04:
Madge, I'll just address briefly the points that Your Honor made.

[00:40:06] Speaker 04:
Your Honor, the relief we are seeking is the $2 million

[00:40:09] Speaker 04:
that we sought initially when we filed our complaint and then filed our second amended complaint we're not seeking relief beyond that two million that's right so if you get your two million you're satisfied and the matter is moot that's correct thus far we've received only approximately one million

[00:40:31] Speaker 01:
I think there was another payment.

[00:40:33] Speaker 01:
So you've got 17.

[00:40:34] Speaker 01:
Anyway, I just want to be clear about that.

[00:40:37] Speaker 01:
And I think I'm clear now.

[00:40:39] Speaker 01:
And that answer may also affect the other tribe.

[00:40:48] Speaker 01:
Thank you, counsel.

[00:40:49] Speaker 05:
Thank you, your honor.

[00:40:50] Speaker 01:
Thank you.

[00:40:59] Speaker 07:
Your Honors, Adam Jett on behalf of the federal government.

[00:41:02] Speaker 07:
May it please the court?

[00:41:04] Speaker 07:
I'd like to begin, if I may, with a colloquy that Judge Rogers had with actually both of my friends about the statutory standard.

[00:41:11] Speaker 07:
Because the question, just if you look at the statutory text, is not some sort of philosophical, distributive conception.

[00:41:17] Speaker 07:
The question is whether the Secretary has made a determination, one within just a zone of reasonableness, that the payments are based on increased expenditure.

[00:41:26] Speaker 07:
Now, there is inherent uncertainty

[00:41:28] Speaker 07:
you're trying to estimate and trying to predict what increased expenditures are going to be.

[00:41:32] Speaker 07:
And so I think it's common ground among all the parties here that the issue is just selecting a proxy.

[00:41:38] Speaker 07:
The question is, which population measure is not necessarily the best proxy but is at least within a zone of reasonableness is to sort of use the language that this court used in Shawnee is not so unreasonable that it can no longer be considered a proxy for increased expenditures.

[00:41:54] Speaker 07:
And I think then that

[00:41:55] Speaker 07:
plaintiffs can kind of tip their hands, actually, when both of them are at the podium.

[00:42:00] Speaker 07:
When they start referencing per capita payment, this is question begging.

[00:42:03] Speaker 07:
When the plaintiffs stand up here and say, one tribe received x amount per person and a different tribe received y amount per person, they're re-supposing that the relevant count of people are the number of enrolled members.

[00:42:15] Speaker 07:
In other words, their whole argument is assuming the answer that they want this court to reach.

[00:42:20] Speaker 07:
But the question, everyone agrees that for the purposes of this proxy distribution, it will be per capita.

[00:42:25] Speaker 07:
The question is, what's the capital?

[00:42:27] Speaker 07:
Are you measuring the number of people based on the enrollment in the tribe, the number of citizens, no matter where they live?

[00:42:33] Speaker 07:
Are you measuring the number of people based on the number of individuals who live in their formula area population or some blend of those two factors?

[00:42:40] Speaker 03:
But the statute refers to increased expenditures.

[00:42:44] Speaker 03:
So based on what you're saying here, how does that formulate with increased expenditures?

[00:42:49] Speaker 07:
Sure, absolutely.

[00:42:51] Speaker 07:
So just stepping back again, I think everyone is common ground.

[00:42:54] Speaker 07:
In this case, everyone agrees that using some population measure is kind of acceptable as a proxy for increased expenditures.

[00:43:01] Speaker 07:
And maybe if I could just sort of briefly walk you through the administrative record as the agency explained from the very beginning, you can find this at 751 to 751.

[00:43:12] Speaker 07:
and then 755 to 756.

[00:43:14] Speaker 07:
The idea is that one, again, there were sort of three different tranches of money that were given out here.

[00:43:20] Speaker 07:
For the population-based tranche, the idea is that the more individuals that a tribal government is providing services for, the more, again, this is just an estimate, back of the envelope prediction of what will happen, but the more likely it is then that they will have more expenditures, these sort of person-based expenditures, as a result of the COVID-19 pandemic.

[00:43:39] Speaker 07:
And the agency specifically talked about expenditures such as providing medical services.

[00:43:44] Speaker 07:
Now, that's the reason that the agency initially decided to use as a proxy the formulary of population.

[00:43:50] Speaker 07:
This is a number that has been used by HUD and by other agencies to sort of figure out the population of people that a tribe is providing certain services for.

[00:43:58] Speaker 07:
And it's a number that essentially sort of captures the population of folks who live around the seat of the tribe where the tribe is exercising control and the tribe is exercising services.

[00:44:08] Speaker 07:
Now, obviously, the plaintiffs believe that there's a different number that should be used, but the number that should be used is enrollment, the number of citizens, no matter where they may live.

[00:44:16] Speaker 07:
In this court, in the Shawnee decision, I think it's very important that this not get lost, said that it didn't rule definitively, but sort of as a likelihood of success on the merits, it said that for zero population.

[00:44:27] Speaker 07:
where the formula area population is zero, that for those folks, it seems like formula area population is not a reasonable property.

[00:44:35] Speaker 07:
So the government responded to that such that for the zero population tribes, the government is solely using enrollment.

[00:44:41] Speaker 07:
At this point, the amount of money that is zero population tribes receive

[00:44:46] Speaker 07:
is the amount they would have received.

[00:44:47] Speaker 07:
All federally recognized tribes have been evaluated solely based on enrollment and not by using formula area population.

[00:44:54] Speaker 07:
And then for the sort of additional number of tribes that are kind of close to them, low populations, may very well be meaningful, but can see that we are low and somewhat disparate from their enrollment.

[00:45:05] Speaker 07:
There's a sort of additional plus up that's been provided.

[00:45:08] Speaker 07:
And I actually think this may then kind of pivot nicely to the colloquy that Judge Rogers was just having with my friend at the end of the argument, because when my friend

[00:45:15] Speaker 07:
indicates that they were seeking $2 million.

[00:45:18] Speaker 07:
I see none of this is brief.

[00:45:19] Speaker 07:
This is coming up for the first time at the podium.

[00:45:22] Speaker 07:
But if your honors do go back to look at those sort of relevant district court filings, the $2 million figure that the Mekisuki were seeking was, and I apologize, I keep looking at the screen, but I realize the camera is actually in front of me.

[00:45:34] Speaker 07:
The $2 million figure was essentially a calculation that was reached based on using enrollment for the Mekisuki or it may have been from the Mekisuki and the two other plaintiff tribes

[00:45:45] Speaker 07:
But they're using formula area population for everyone else.

[00:45:49] Speaker 07:
But at this point, what the Mitsuki has received is a sort of per capita count that solely they used enrollment for them, premised on the idea that enrollment had been used for everybody else.

[00:45:59] Speaker 07:
And I think then that sort of paradox actually then plays in nicely judged trials with the colloquy that you are having with my friend about remedy.

[00:46:06] Speaker 07:
Because essentially what my friends are asking for is they're saying, so Prairie Band, for example, was ranked number 63 on that ranking of ratio.

[00:46:13] Speaker 07:
They're saying,

[00:46:15] Speaker 07:
Treat number 63 in the same way that you treat number one.

[00:46:18] Speaker 07:
Plus them up entirely so that they receive what they would have received if everyone had received money based on enrollment.

[00:46:25] Speaker 07:
But skip over everyone in between.

[00:46:27] Speaker 07:
And by the way, ignore everyone underneath us.

[00:46:29] Speaker 07:
But if what my friend was saying was correct, if there was some reason that enrollment is better, if there's some reason that the ratio between enrollment and formula area population is relevant, then either it's better for everyone else or it's relevant.

[00:46:42] Speaker 07:
And that's then where the sort of redistribution formula comes into play, because the whole idea in 2021 is the Secretary started with what this court said in Shawnee.

[00:46:51] Speaker 07:
This court said in Shawnee, if you have tribes that have enrollment between a formula area population of zero and have a high enrollment, there's at least reason to believe that basically formula area population just isn't capturing what it's supposed to capture.

[00:47:05] Speaker 07:
In other words, to sort of go back to the relevant statutory terms, that the number being used is no longer within a zone of reasonableness.

[00:47:11] Speaker 07:
as a proxy for increased expenditures.

[00:47:14] Speaker 07:
And so that's why then the zero population tribes, which now include Miccosukee after the government corrected their relevant error, that they're receiving funds totally based on enrollment.

[00:47:23] Speaker 07:
And then for others, it's just a weighting.

[00:47:25] Speaker 07:
It's essentially a sort of mashup of the two numbers.

[00:47:27] Speaker 07:
And because the whole idea is that the disparity between the two numbers calls into question the accuracy of using

[00:47:36] Speaker 07:
The greater the disparity, the greater the plus up.

[00:47:38] Speaker 07:
So for the zero population tribes, they're plus up all the way.

[00:47:41] Speaker 07:
And as you go down and the disparity gets smaller and smaller, the redistribution gets smaller and smaller.

[00:47:46] Speaker 07:
And one thing that I want to make sure doesn't get lost in this discussion is it's not just a redistribution out of the general treasury.

[00:47:52] Speaker 07:
Remember, these are being funds, these are funds that are being taken away from other recipients here from the AMCs.

[00:47:59] Speaker 07:
And the plaintiffs haven't argued that there was any kind of error in giving funds to the AMCs.

[00:48:03] Speaker 07:
They haven't argued that there's some reason the ANC should have received less funds.

[00:48:08] Speaker 07:
The ANC has just basically had the misfortune of having their funds tied up while there was a legal question that got litigated all the way up to the Supreme Court.

[00:48:15] Speaker 07:
So at this point, basically, every dollar that is given to the plaintiffs is then taken away from someone else who also has a claim to that money.

[00:48:24] Speaker 03:
So you don't believe that plaintiffs representing what's left just goes to them?

[00:48:30] Speaker 07:
I think if nothing else, so, you know, obviously the government hopes that the district court's decision is affirmed and sort of happy to explain why the government believes the district court's decision was correct.

[00:48:41] Speaker 07:
If the court were to determine that the district court erred, obviously what happens next, of course, would depend on the basis for this court's decision.

[00:48:48] Speaker 07:
If, for example, the court said, well, theoretically what the government did might be substantively reasonable, but there just wasn't enough explanation.

[00:48:55] Speaker 07:
And again, I'm happy to

[00:48:57] Speaker 07:
tell the court, well, I think there was enough explanation.

[00:48:59] Speaker 07:
But if the court concluded that there wasn't, then it would go back to the agency, and then the agency would have the ability to sort of make a further explanation.

[00:49:06] Speaker 07:
If there was some other substantive error, if there's some reason, and it's really hard to imagine what this is, but if there's some reason that, for example, if you look deep within the heart of the statute, the term increased expenditure is actually needed to use enrollment for the top 88 and then switch the formula area population as soon as you jump from 88 to 89, hard to imagine how that could be the case.

[00:49:25] Speaker 07:
But if that were the case,

[00:49:26] Speaker 07:
Then I think then you get a remand, and it goes back to the agency.

[00:49:29] Speaker 07:
And again, this is just black letter administrative law.

[00:49:32] Speaker 07:
The agency then takes into account whatever the court said and can then make a further distribution.

[00:49:37] Speaker 07:
And so I think when the colloquy was happening with Mr. Abney about what the appropriate remedy is, and he suggested that the reason that this preliminary injunction was entered in the first place is to benefit his client and to benefit the remand.

[00:49:52] Speaker 07:
I don't think that the fact that they got a particular interim relief

[00:49:56] Speaker 07:
can then be used as a kind of foot in the door to kind of work backwards and force a particular remedy on the agency.

[00:50:02] Speaker 07:
So as for the kinds of appropriations questions that were referenced up here, obviously the parties haven't briefed those at all.

[00:50:09] Speaker 07:
And I don't want to, you know, sort of stand on my feet and opine on what would be a sort of somewhat unusual application of appropriations law.

[00:50:16] Speaker 07:
But normally the black letter law is sort of once there's money that's kind of held up in litigation, even when an appropriation expires, that money can continue to be spent.

[00:50:25] Speaker 07:
You know, to kind of satisfy what ends up being the sort of final judgment in the litigation.

[00:50:29] Speaker 07:
Now, ordinarily, final judgment in an APA case is you set aside an action that's arbitrary and capricious, and you send it back to the agency to redo that action in a way that's not arbitrary.

[00:50:39] Speaker 07:
I don't want to get ahead of the agency.

[00:50:41] Speaker 07:
I think the agency could potentially choose, depending on what this court said, to distribute the funds in different ways and the sorts of appropriations issues that my friend referenced.

[00:50:49] Speaker 07:
I think it would be fair game for the agency to consider on remand, but I think it could be highly premature for the court to consider it.

[00:50:55] Speaker 03:
Well, I want to go back to you suggesting that you have explanations, because it did not appear that those were really in the record in terms of

[00:51:04] Speaker 03:
The data that you're relying on, as I indicated earlier, there just seems to be a lot of different numbers and moving targets throughout the record.

[00:51:12] Speaker 07:
Sure.

[00:51:13] Speaker 07:
So I guess if I could sort of briefly just address the kind of conceptual issue with numbers and moving targets, and if I could kind of specifically kind of walk the court through the explanation.

[00:51:23] Speaker 07:
So as for kind of numbers and moving targets,

[00:51:25] Speaker 07:
As I began, this is all about proxies and estimates, because remember, as this money was going out the door, no one knew exactly what the increased expenditures were going to be.

[00:51:35] Speaker 07:
This was all an issue of what was going to happen in the future in 2020.

[00:51:38] Speaker 07:
Initially, we thought it was funds that would be expended throughout 2020.

[00:51:41] Speaker 07:
Congress actually then

[00:51:42] Speaker 07:
amended the statute so that it would include funds that were expended through the end of 2021.

[00:51:47] Speaker 07:
So everything was just a sort of question of future predictions.

[00:51:51] Speaker 07:
The data sets that were being used, I think the agency was extremely clear on them.

[00:51:56] Speaker 07:
The whole conversation was about enrollment versus formula area population.

[00:51:59] Speaker 07:
The agency decision spells out in some detail exactly what formula area population is, that they're taking it from POD.

[00:52:05] Speaker 07:
I think they actually cite the relevant regulations, the relevant HUD regulations, which set up how formula area population is calculated.

[00:52:12] Speaker 07:
Um, so as for that, I think the sort of data is pretty clear.

[00:52:16] Speaker 07:
I mean, just, just in case this is what your honor was getting at, it is black, but a lot of the Supreme Court's recent decision.

[00:52:25] Speaker 07:
out and just kind of create a whole new data set, an agency is allowed to basically use the data it has access to.

[00:52:32] Speaker 07:
And so the data that, for purposes here, were being used as potential proxies for increased expenditures, in addition to the expenses and the employment data that nobody is disputing here, are just one of these two populations.

[00:52:44] Speaker 07:
So then, as for whether the agency provided a sufficient explanation for the phase out, because again, I think it is common ground here.

[00:52:51] Speaker 07:
Everyone agrees that zero population tribes at this point should be, or at least are, and this is undisputed, receiving funds as if all federally recognized tribes have been evaluated based on their enrollment.

[00:53:05] Speaker 07:
So the only question then is just whether there should be a sort of taper down or, as I think Prairie Band is arguing,

[00:53:11] Speaker 07:
or basically whether the tribe in 63rd place could be treated the same as the tribe in first place.

[00:53:16] Speaker 07:
And then once you hit 88, there should be a fall off.

[00:53:18] Speaker 07:
And so I just want to make sure that the court kind of sees the explanation that the agency provided.

[00:53:23] Speaker 07:
We spell this out to some extent of the court to sort of want to still look at a further discussion of it on pages 47 to 49 of our brief.

[00:53:29] Speaker 07:
But basically, the concern, the whole thing that motivated this, stemming from this court-shining decision,

[00:53:35] Speaker 07:
is the disparity between the two measurements.

[00:53:38] Speaker 07:
And you can find the agency's discussion at J1395 and J1400.

[00:53:42] Speaker 07:
And so because it's the disparity that kind of raises this question of whether the initial measurement formula area population was an unreasonable proxy, then further adjustment that gets made, and now I'm quoting the agency's decision on page 1400, the adjustment is, quote, based on the disparities.

[00:53:59] Speaker 07:
So I think there's sort of a little bit of a game of shadow boxing going on here, where the plaintiffs say it was sort of an unexplained, fait accompli, that the agency just never explained why it is that there was a taper, why it is that there was a phase out.

[00:54:15] Speaker 07:
The agency didn't explain it twice.

[00:54:16] Speaker 07:
In other words, the agency didn't first say, what's driving us are the disparities, we care about the magnitude of the disparities, and then again say,

[00:54:25] Speaker 07:
we're going to have a phase out.

[00:54:27] Speaker 07:
And the reason we're having a phase out is what's driving us is the disparities and the phase out would be based on disparities.

[00:54:32] Speaker 07:
But there's no legal requirement that an agency say something twice.

[00:54:35] Speaker 07:
When you're looking at an agency explanation, again, this is just black letter administrative laws the court well knows.

[00:54:40] Speaker 07:
You read the explanation as a whole.

[00:54:42] Speaker 07:
And the question just to use the sort of governing Supreme Court standard is whether the path may reasonably be discerned.

[00:54:48] Speaker 07:
And so when the agency says the concern is the disparity and we're making an adjustment based on the disparities,

[00:54:54] Speaker 07:
And then they sort of say they're going to have a taper of phase out and they explain the formula.

[00:54:59] Speaker 07:
The taper in the phase out is following logically from the issue of disparities.

[00:55:02] Speaker 07:
In other words, if you're having an adjustment based on disparities, the less the disparity, the less the adjustment.

[00:55:10] Speaker 07:
Unless the court has any other questions.

[00:55:12] Speaker 03:
What do you make of the district courts in Shawnee One's statement about there will be a likelihood of success on the mayor?

[00:55:19] Speaker 07:
Your Honor, I apologize.

[00:55:20] Speaker 07:
I couldn't quite hear you.

[00:55:20] Speaker 03:
Will you make up the district court statement in Shawnee-Wan about there being a likelihood of success in the merits?

[00:55:27] Speaker 07:
Well, Your Honor, I think Your Honor is referring to this court's decision in what's being referred to.

[00:55:31] Speaker 07:
Yes, I'm sorry.

[00:55:31] Speaker 03:
This court's decision.

[00:55:33] Speaker 07:
So I think this court's decision in Shawnee-Wan underscores everything the agency did in response.

[00:55:39] Speaker 07:
So this court, if you look at the decision, the sole plaintiff there was being kind of colloquially called the zero population tribe.

[00:55:47] Speaker 07:
It was a tribe that had zero formula area population, but did have a significant number of police.

[00:55:53] Speaker 07:
One of the amici, Miccosukee, who is now a plaintiff here, was also a zero population tribe.

[00:55:58] Speaker 07:
And with respect to the plaintiff there, and then the court suggested that this might be true for Miccosukee as well, it said that, I mean, if you just read it, it repeatedly refers to there being zero population

[00:56:08] Speaker 07:
And it says, for these folks, zero population tribes, it looks like using formula area population is an unreasonable metric.

[00:56:15] Speaker 07:
And so Treasury responded to that.

[00:56:17] Speaker 07:
And in fact, what Treasury has now done is for all of what are being called the zero population tribes, formula area population has entirely dropped out.

[00:56:25] Speaker 07:
All that is being considered is enrollment.

[00:56:27] Speaker 07:
And again, just to be clear,

[00:56:29] Speaker 07:
Enrollment isn't being considered only for them and no one else.

[00:56:32] Speaker 07:
They've received what they would have received if everybody had been evaluated based on enrollment, which is what they have been looking for the entire time.

[00:56:39] Speaker 07:
Now, I should point out, my friend from Prairie Band was standing up here, and he indicated that Prairie Band filed an amicus brief in Shawnee One.

[00:56:46] Speaker 07:
Notice that in Shawnee One, this court referred to the facts of their, the amicus mikesuki.

[00:56:51] Speaker 07:
It didn't refer there to the facts of Prairie Band.

[00:56:54] Speaker 07:
And as we spell out in our brief, this is the sort of nature of an agency having

[00:56:59] Speaker 07:
I think in response to Shawnee One, one thing that Treasury could have done is said, look, the DC Circuit has indicated that when there's just zero formula area population, basically just no one knows what to make of that number.

[00:57:11] Speaker 07:
Maybe that number can't be trusted.

[00:57:12] Speaker 07:
Maybe it's not a reasonable proxy.

[00:57:14] Speaker 07:
And you could have stopped there, could have only provided additional funds to those who had zero formula area population.

[00:57:21] Speaker 07:
But instead, the agency went a little bit further.

[00:57:23] Speaker 07:
The agency said, you know, some of this logic, sort of some of what seems to be driving the concern about the zero tribes,

[00:57:29] Speaker 07:
could potentially stretch a little bit further.

[00:57:31] Speaker 07:
And that's why you end up with this kind of boundary zone past zero population tribes.

[00:57:36] Speaker 07:
And that's why Prairie Band is kind of having this conversation at all.

[00:57:39] Speaker 07:
Because when you have a tribe like Prairie Band, which does have a meaningful formula area population, the fact that its enrollment is greater than its formula area population could be the very reason that the agency selected formula area population in the first place, which is that's the number of folks who kind of live near the tribe.

[00:57:56] Speaker 07:
The tribe is generally entrusted

[00:57:58] Speaker 07:
Providing services to you.

[00:57:59] Speaker 07:
And by the way, just to make sure that this doesn't get lost.

[00:58:01] Speaker 07:
Although the plaintiffs here are plaintiffs where their enrollment is higher than their formula area population.

[00:58:07] Speaker 07:
There are plenty of tribes and we cite some examples in the record of tribes talking about that where those tribes formula area population is a lot bigger than their enrollment.

[00:58:14] Speaker 07:
because there are plenty of tribes who are providing not just for their own members, but are providing for lots of Native American members of other tribes, some of whom may very well be old members in the plaintiff's tribes and would potentially be double counted.

[00:58:27] Speaker 07:
So, you know, again, just stepping back, at the end of the day, this is the nature of administrative decision making.

[00:58:33] Speaker 07:
You can't predict the future.

[00:58:34] Speaker 07:
You can't do anything perfectly.

[00:58:36] Speaker 07:
The question is just whether Treasury has acted within a zone of reason.

[00:58:40] Speaker 07:
in predicting whether there's increased expenditures.

[00:58:42] Speaker 07:
And again, just to say this one more time, with a limited pool of funds, in not taking essentially an infinite amount of money away from the Alaska Native corporations, who nobody has disputed or properly assigned to the initial amount of money that is now being taken away from them.

[00:58:57] Speaker 03:
Thank you.

[00:58:58] Speaker 03:
Jeff Rogers, any questions?

[00:58:59] Speaker 01:
No, thank you.

[00:59:00] Speaker 03:
Thank you.

[00:59:01] Speaker 02:
Thank you.

[00:59:02] Speaker 03:
All right.

[00:59:10] Speaker 06:
Just quickly, one note about the record.

[00:59:14] Speaker 06:
This is an important note.

[00:59:18] Speaker 06:
Mr. Jen makes reference to Joint Appendix 1400, where Treasury for the first time mentions, based on disparities, 1400 was not contemporaneous with the revised methodology.

[00:59:32] Speaker 06:
1400 comes out months later when Treasury is actually figuring out this single race versus multi-race issue that had resulted in Prairie Band receiving successive payments.

[00:59:44] Speaker 06:
They've already seen the second complaint at the time that Joint Appendix 1400 is developed by Treasury, and they're already anticipating the arguments that are raised in the complaint and trying to repud them.

[00:59:55] Speaker 06:
It's not contemporaneous decision-making.

[01:00:00] Speaker 06:
Treasury, even in that,

[01:00:02] Speaker 06:
concedes in that at that point in the record concedes that it's not based at the 2021 methodology is not based on increased expenditures, but it's based on these disparities.

[01:00:14] Speaker 06:
And Treasury repeats this point at point at pages 30 and 32 of its brief.

[01:00:19] Speaker 06:
There's you didn't hear any connection between the to justify the differential treatment

[01:00:25] Speaker 06:
or very bad receiving $900 per person, whereas the tribes at the top received approximately $1,800 per person.

[01:00:33] Speaker 06:
Nothing at all that's connected based on increased expenditure.

[01:00:36] Speaker 06:
Mr. Jed makes reference to the idea of blending, that there's some sort of weighing of the two factors.

[01:00:42] Speaker 06:
That's not the case here.

[01:00:44] Speaker 06:
If there had been any blending, it wouldn't be the case that Prairie Band was a far greater, 747 IHBG population.

[01:00:53] Speaker 06:
And a 45-15 enrolled population would be receiving $1.3 million less than Shawnee Tribe that had a zero IHBG population metric and 3,000 enrolled members.

[01:01:05] Speaker 06:
If there were a blending, there would be some convergence.

[01:01:08] Speaker 06:
There's no convergence, total inversion of the original approach.

[01:01:12] Speaker 01:
Okay, anything new?

[01:01:16] Speaker 05:
It's nothing further, your honor, unless you have any further questions for me.

[01:01:24] Speaker 03:
I don't.

[01:01:24] Speaker 04:
Thank you.

[01:01:28] Speaker 04:
Thank you, your honors.

[01:01:29] Speaker 04:
I do want to address a couple of points that Mr Jed made, and I want to emphasize from the court that our Mickey's case is not moved.

[01:01:37] Speaker 04:
We dispute his representation.

[01:01:40] Speaker 04:
that all zero tribes have been treated equally.

[01:01:42] Speaker 04:
We don't have any information in front of us.

[01:01:45] Speaker 04:
The court doesn't have any information in front of the court to determine whether that's accurate or not.

[01:01:50] Speaker 01:
All we have- But counsel, the statement was not that, but that simply in obtaining the injunction by the district court, Mikusuki agreed that

[01:02:08] Speaker 01:
upon receiving the $2 million, its claims were satisfied.

[01:02:16] Speaker 04:
Your Honor, and I don't want to touch on, we have not received the $2 million.

[01:02:19] Speaker 04:
We've received $1 million.

[01:02:20] Speaker 01:
Counsel, you said that several times and my hypothetical was

[01:02:26] Speaker 01:
based on the assumption that the secretary is not going to violate the district court's order of injunction.

[01:02:35] Speaker 01:
That's all.

[01:02:36] Speaker 01:
So you get your two million.

[01:02:38] Speaker 01:
And if you get your two million, your claims are satisfied.

[01:02:42] Speaker 01:
And I thought at the end of your argument to us, you admitted that.

[01:02:49] Speaker 01:
And what you're saying now is just what you said before.

[01:02:53] Speaker 01:
And it doesn't in any way undercut that in getting the injunction for $2 million.

[01:02:59] Speaker 01:
Upon receiving the $2 million, your claims are satisfied.

[01:03:04] Speaker 01:
And you may have had other claims, but you agreed to this injunction at the district court entered in your favor.

[01:03:16] Speaker 04:
And that is all right, Your Honor.

[01:03:18] Speaker 04:
But my point is, and we agree, if Miccosukee receives the two million, then we are satisfied, but we have not received one million.

[01:03:29] Speaker 01:
And the last point I wanted to make is... Council in reply, that is nothing new.

[01:03:34] Speaker 01:
You're just repeating and you're not taking back your statement that when you get the two million, your claims are satisfied.

[01:03:44] Speaker 04:
That's correct.

[01:03:45] Speaker 01:
All right, fine.

[01:03:47] Speaker 04:
So Mr. Jed, I do want to address his point about a zone of reasonableness.

[01:03:51] Speaker 04:
Of course, we don't dispute that a zone of reasonableness would apply in most APA cases in attempting to evaluate the government's decision-making in an APA case.

[01:04:02] Speaker 04:
But consider the facts here.

[01:04:04] Speaker 04:
The formula which they are defending did not produce results that are in a zone of reasonableness.

[01:04:09] Speaker 04:
It produced these skewed results.

[01:04:12] Speaker 04:
So a tribe with an IHBG formula area population of 600 receives 2 million dollars, but a tribe with a population

[01:04:22] Speaker 04:
of 600 receives only $1 million.

[01:04:25] Speaker 04:
That is not within a zone of reasonableness.

[01:04:28] Speaker 04:
That is the definition of disparate treatment, and that clearly is arbitrary and capricious.

[01:04:33] Speaker 01:
Well, with all due respect, the zone of reasonableness does not only look at the dollar amount, but it looks at the context in which the secretary is ruling.

[01:04:46] Speaker 04:
And I'm happy to address the context, Governor.

[01:04:50] Speaker 01:
All right.

[01:04:50] Speaker 01:
Did you get your $2 million?

[01:04:53] Speaker 01:
You're satisfied.

[01:04:54] Speaker 04:
We definitely are satisfied.

[01:04:57] Speaker 01:
Thank you.

[01:04:58] Speaker 04:
Thank you, Your Honor.

[01:04:59] Speaker 03:
Thank you.

[01:05:01] Speaker 03:
Of course, the court will take this matter under advisement.

[01:05:04] Speaker 03:
Thank you.