`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided January 5, 2021
`
`Argued December 4, 2020
`
`
`No. 20-5286
`
`SHAWNEE TRIBE,
`APPELLANT
`
`v.
`
`STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS
`SECRETARY OF THE UNITED STATES DEPARTMENT OF THE
`TREASURY, ET AL.,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:20-cv-01999)
`
`Pilar M. Thomas argued the cause for appellant. With her
`on the briefs were Luke Cass, Scott McIntosh, and Nicole L.
`Simmons.
`
`
`Michael G. Rossetti was on the brief for amicus curiae
`Prairie Band Potawatomi Nation in support of appellant.
`
`Daniel G. Jarcho was on the brief for amicus curiae the
`Miccosukee Tribe of Indians of Florida in support of appellant.
`
`
`
`
`
`
`

`

`2
`Thomas Pulham, Attorney, U.S. Department of Justice,
`argued the cause for appellees. With him on the brief were
`Jeffrey Bossert Clark, Acting Assistant Attorney General, and
`Michael S. Raab and Daniel Tenny, Attorneys. Adam C. Jed,
`Attorney, entered an appearance.
`
`Before: TATEL, GARLAND*, and WILKINS, Circuit Judges.
`
`Opinion for the Court filed by Circuit Judge TATEL.
`
`TATEL, Circuit Judge : The Shawnee Tribe, located in
`Oklahoma, challenges the allocation of funds under the
`Coronavirus Aid, Relief, and Economic Security Act (CARES
`Act), which Congress enacted in response to the current public
`health emergency. The district court, finding that the allocation
`of funds under the CARES Act was unreviewable, denied the
`Tribe’s motion for a preliminary injunction and then dismissed
`the case. For the reasons set forth below, we reverse and
`remand for the district court to consider the merits and to
`enter a preliminary injunction promptly.
`
`I.
`Title V of the CARES Act appropriated $150 billion “for
`making payments to States, Tribal governments, and units of
`local government,” 42 U.S.C. § 801(a)(1), for “necessary
`expenditures incurred due to the public health emergency with
`respect to [COVID-19],” id. § 801(d)(1). Congress directed the
`Secretary of the Treasury to make the payments within thirty
`days of the Act’s March 27, 2020 enactment. Id. § 801(b)(1).
`
`* Judge Garland was a member of the panel at the time this case was
`argued but did not participate in the final disposition of the case.
`
`

`

`3
`Of the $150 billion, Congress reserved $8 billion for
`payments to “Tribal governments,” id. § 801(a)(2)(B), and
`specified that the amount to be paid
`
`to a Tribal government shall be the amount the
`Secretary [of the Treasury] shall determine, in
`consultation with the Secretary of the Interior and
`Indian Tribes, that is based on increased expenditures
`of each such Tribal government . . . relative to
`aggregate expenditures in fiscal year 2019 by the
`Tribal government . . . and determined in such manner
`as the Secretary determines appropriate to ensure that
`all amounts available . . . for fiscal year 2020 are
`distributed to Tribal governments.
`
`Id. § 801(c)(7).
`
`government
`consultation with Tribal
`Following
`representatives, the Secretary published on April 13 a form
`requesting enrollment data from all 574 federally recognized
`Tribal governments “to help apportion Title V funds.”
`Confederated Tribes of the Chehalis Reservation v. Mnuchin,
`976 F.3d 15, 20 (D.C. Cir. 2020). In response, the Shawnee
`Tribe certified that it had 3,021 enrolled members.
`
`The Secretary subsequently announced his chosen
`methodology for distributing funds. See U.S. Department of the
`Treasury, Coronavirus Relief Fund Allocations to Tribal
`(May 5, 2020)
`(“May 5 Document”),
`Governments
`https://home.treasury.gov/system/files/136/Coronavirus-
`Relief-Fund-Tribal-Allocation-Methodology.pdf.
`Because
`data about increased expenditures for fiscal year 2020 were
`“unknown” and could only be “estimate[d]” at that point, the
`Secretary “determined that it [was] reasonable and appropriate
`to allocate payments based on a formula [that] takes into
`account population data, employment data, and expenditure
`
`
`
`

`

`4
`data.” Id. at 1. Sixty percent of the $8 billion would be
`distributed “immediately based on population,” while the
`remaining forty percent would be distributed later “based on
`employment and expenditures data.” Id. at 2.
`
`For the sixty percent based on population, the Secretary
`explained that “Tribal population [wa]s expected to correlate
`reasonably well with the amount of increased expenditures of
`Tribal governments related directly to the public health
`emergency, such as increased costs to address medical and
`public health needs.” Id. Rather than using the enrollment
`numbers submitted by the tribes, however, the Secretary relied
`on “Tribal population data used by the Department of Housing
`and Urban Development (HUD) in connection with the Indian
`Housing Block Grant (IHBG) program.” Id. According to the
`Secretary, the data were “reliable and consistently-prepared,”
`and the Tribal governments were “familiar” with the data and
`had been able to previously “scrutinize and challenge its
`accuracy.” Id.
`
`The IHBG data does not reflect actual tribal enrollment.
`Instead, it estimates a tribe’s “population” in a geographical
`“formula area” based on population numbers drawn from
`census projections of the number of individuals who consider
`themselves “American Indian or Alaska Native” on census
`forms. See 24 C.F.R. §§ 1000.302, 1000.330; see also May 5
`Document at 2. A Tribal government’s formula area is defined
`to be its formula area as it existed in 2003, any of its land that
`falls into nine categories (including “reservations for federally
`recognized Indian tribes”), and any other areas added by
`application of the Tribe and at HUD’s discretion. See 24 C.F.R.
`§ 1000.302. A formula area,
`the Secretary explained,
`“corresponds broadly with the area of a Tribal government’s
`jurisdiction and other areas to which the Tribal government’s
`provision of services and economic influence extend.” May 5
`
`
`
`

`

`5
`Document at 2–3. Because the IHBG data does not reflect
`actual enrollment, a tribe’s IHBG “population” sometimes
`exceeds its actual enrollment numbers. 24 C.F.R. § 1000.302.
`A tribe’s IHBG formula area population is thus capped at twice
`its “enrolled population.” Id. § 1000.302(5).
`
`The Secretary’s decision to use IHBG data had an
`unfortunate impact on the Shawnee Tribe. Even though the
`table displaying the IHBG data included HUD enrollment
`figures indicating that the Tribe had 2,113 enrolled members,
`the IHBG data reported that the Tribe had a formula area
`population of zero. So although the Tribe had over $6.6 million
`in expenditures in 2019, Compl. Ex. A, and although it
`“incurred significant medical and public health expenses in
`responding to the devastation resulting from the COVID-19
`pandemic,” id. ¶ 62, it received just $100,000—the minimum
`payment for tribes with a population of fewer than thirty-seven,
`id. ¶ 26. See Barker v. Conroy, 921 F.3d 1118, 1121 (D.C. Cir.
`2019) (explaining that on “appeal from the district court’s grant
`of a motion to dismiss, ‘we must accept as true all material
`allegations of the complaint’” (quoting LaRoque v. Holder,
`650 F.3d 777, 785 (D.C. Cir. 2011))). Twenty-four other tribes
`also had formula area populations of zero, including amicus
`curiae Miccosukee Tribe of Indians of Florida, which has 605
`enrolled members. Miccosukee Tribe’s Br. 2.
`
`On June 18, the Shawnee Tribe sued the Department of the
`Treasury, the Secretary of the Treasury, the Department of the
`Interior, and the Secretary of the Interior (collectively, the
`Secretary) in the Northern District of Oklahoma. See Shawnee
`Tribe v. Mnuchin (Shawnee Tribe I), No. 20-CV-290,
`2020 WL 4334908 (N.D. Okla. July 28, 2020). Seeking
`declaratory and injunctive relief, the Tribe contended that the
`Secretary acted arbitrarily, capriciously, and unlawfully by
`using population as a proxy for increased expenditures,
`
`
`
`

`

`6
`selecting the IHBG population data rather than other available
`data, and refusing to adjust what the Tribe deemed errors in the
`IHBG data. See id. at *1–2; Compl. ¶¶ 45–52. The Tribe also
`filed a motion for a temporary restraining order. The Oklahoma
`district court converted the motion to a motion for a
`preliminary injunction and transferred the case to the district
`court here. Shawnee Tribe I, 2020 WL 4334908, at *1, 3–4.
`
`The district court denied the Tribe’s motion for a
`preliminary
`injunction. See Shawnee Tribe v. Mnuchin
`(Shawnee Tribe II), No. 20-CV-1999 (APM), 2020 WL
`4816461 (D.D.C. Aug. 19, 2020). Although “accept[ing]” that
`the Tribe would suffer irreparable harm, id. at *4 n.3, the court
`concluded that the Tribe had failed to satisfy the other
`requirements for preliminary relief, id. at *2–4. According to
`the district court, the Tribe failed to show a likelihood of
`success on the merits because the Secretary’s allocation of
`funds under Title V was “committed to agency discretion” and
`thus unreviewable under the Administrative Procedure Act
`(APA). Id. The district court also found that the balance of
`equities weighed against granting preliminary relief. Id. at
`*4–5.
`
`The Secretary subsequently moved to dismiss, again
`arguing that the allocation of Title V funds was unreviewable.
`Relying on and incorporating its reasoning in its opinion on the
`preliminary injunction, as well as in an earlier decision it had
`issued in a similar case brought by the Prairie Band Potawatomi
`Nation, see Prairie Band Potawatomi Nation v. Mnuchin, No.
`20-cv-1491 (APM), 2020 WL 3402298 (D.D.C. June 11,
`2020), the district court agreed and dismissed the case.
`Shawnee Tribe v. Mnuchin (Shawnee Tribe III), No. 20-CV-
`1999 (APM), 2020 WL 5440552, at *1–2 (D.D.C. Sept. 10,
`2020). The Tribe appealed both decisions and a motions panel
`
`
`
`

`

`7
`of this court granted expedition. Order, Shawnee Tribe v.
`Mnuchin, No. 20-5286 (D.C. Cir. Sept. 25, 2020).
`
`II.
`The same motions panel that expedited the case also
`directed the parties to “address whether this Court can provide
`relief to appellant after the CARES Act appropriation lapses or
`the remaining CARES Act funds are obligated.” Id. The
`Secretary and the Tribe agree that there are no immediate
`mootness concerns, as do we.
`
`“[A] case becomes moot only when it is impossible for a
`court to grant any effectual relief whatever to the prevailing
`party. As long as the parties have a concrete interest, however
`small, in the outcome of the litigation, the case is not moot.”
`Sanchez v. Office of the State Superintendent of Education,
`959 F.3d 1121, 1125 (D.C. Cir. 2020) (alteration in original)
`(internal quotation marks omitted). In the appropriations
`context, our court has recognized “an equitable doctrine . . .
`that permits a court to award funds based on an appropriation
`even after the date when the appropriation lapses, so long as
`the lawsuit was instituted on or before that date.” City of
`Houston v. Department of Housing & Urban Development,
`24 F.3d 1421, 1426 (D.C. Cir. 1994) (internal quotation marks
`omitted); see 1 U.S. Government Accountability Office,
`Principles of Federal Appropriations Law, 5-85 (3d ed. 2004)
`(“As long as the suit is filed prior to the expiration date, the
`court acquires the necessary jurisdiction and has the equitable
`power to ‘revive’ expired budget authority, even where
`preservation is first directed at the appellate level.”). But “even
`if a plaintiff brings suit before an appropriation lapses, this
`circuit’s case law unequivocally provides that once the relevant
`funds have been obligated” to a particular purpose or entity, “a
`court cannot reach them in order to award relief.” City of
`Houston, 24 F.3d at 1426.
`
`
`
`

`

`8
`In this case, the Tribe filed suit on June 18, over three
`months before the appropriation lapsed on September 30. See
`42 U.S.C. § 801(a)(1). Moreover, there is no risk that the
`“relevant funds” will be “obligated” before the courts can act,
`City of Houston, 24 F.3d at 1426, given that in a related case,
`Miccosukee Tribe of Indians of Florida v. United States
`Department of the Treasury, the district court ordered the
`government to provide it “with notice of at least three business
`days before disbursing Title V funds below the level necessary
`to pay the amounts claimed by Plaintiffs in th[at] case” and in
`this case. Minute Order, Miccosukee Tribe of Indians of
`Florida v. United States Department of the Treasury, No. 20-
`cv-2792 (D.D.C. Dec. 14, 2020).
`
`III.
`We start with the district court’s conclusion, defended by
`the Secretary, that the allocation of Title V funds is
`unreviewable. Although “[t]here is a strong presumption of
`reviewability under the” APA, section 701(a) “expressly
`precludes judicial review of agency action ‘committed to
`agency discretion by law.’” Steenholdt v. FAA, 314 F.3d 633,
`638 (D.C. Cir. 2003) (quoting 5 U.S.C. § 701(a)(2)). “That
`provision imposes two related, but distinct, barriers to judicial
`review.” Physicians for Social Responsibility v. Wheeler,
`956 F.3d 634, 642 (D.C. Cir. 2020).
`
`First, the Supreme Court has “read § 701(a)(2) to preclude
`judicial review of certain categories of administrative decisions
`that courts traditionally have regarded as ‘committed to agency
`discretion.’” Lincoln v. Vigil, 508 U.S. 182, 191 (1993)
`(quoting 5 U.S.C. § 701(a)(2)). Certain agency decisions are
`thus “presumed immune from judicial review.” Heckler v.
`Chaney, 470 U.S. 821, 832 (1985). Second, “even if agency
`action is presumptively reviewable, section 701(a)(2) also
`applies ‘in those rare instances where statutes are drawn in such
`
`
`
`

`

`9
`broad terms that in a given case there is no law to apply.’”
`Physicians for Social Responsibility, 956 F.3d at 642 (quoting
`Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
`410 (1971)). “That is, ‘if the statute is drawn so that a court
`would have no meaningful standard against which to judge the
`agency’s exercise of discretion,’ then there can be no judicial
`review.” Id. (quoting Heckler, 470 U.S. at 830). The Secretary
`argues that the Tribe cannot overcome either barrier.
`
`Relying on the Supreme Court’s decision in Lincoln v.
`Vigil, 508 U.S. 182, the Secretary first argues that Title V is a
`lump sum appropriation and that his allocation of Title V funds
`is therefore unreviewable. In Lincoln, the Court held that
`“where Congress merely appropriates lump-sum amounts
`without statutorily restricting what can be done with those
`funds, a clear inference arises that it does not intend to impose
`legally binding restrictions.” Id. at 192 (internal quotation
`marks omitted). “[A] lump-sum appropriation,” the Court
`explained, “reflects a congressional recognition that an agency
`must be allowed flexibility to shift funds within a particular
`appropriation account so that the agency can make necessary
`adjustments for unforeseen developments and changing
`requirements.” Id. at 193 (alterations omitted) (internal
`quotation marks omitted). In Lincoln, plaintiffs challenged the
`Indian Health Service’s decision to discontinue a program
`providing services to “handicapped Indian children in the
`Southwest.” Id. at 184. The Court pointed out, however, that
`“the appropriations Acts for the relevant period d[id] not so
`much as mention the Program,” and the other two relevant
`statutes “likewise sp[oke] about Indian health only in general
`terms.” Id. at 193–94. Accordingly, the Court concluded, the
`Service’s decision to end the program was unreviewable.
`
`Title V is nothing like the statutes at issue in Lincoln.
`Congress has not left the Secretary any “flexibility to shift
`
`
`
`

`

`10
`funds within a particular appropriation account so that [he] can
`make necessary adjustments for unforeseen developments and
`changing requirements.” Id. at 193 (alterations omitted)
`(internal quotation marks omitted). Quite to the contrary, Title
`V appropriates funds for only “necessary expenditures incurred
`due to the public health emergency with respect to” COVID-
`19. 42 U.S.C. § 801(d)(1). The statute, moreover, directs the
`Secretary to (1) “ensure that all amounts available” be
`“distributed to Tribal governments,” id. § 801(c)(7); (2)
`“base[]” the allocation of funds “on increased expenditures . . .
`relative to aggregate expenditures in fiscal year 2019,” id.; and
`(3) “pay each . . . Tribal government” no “later than 30 days”
`after the Act’s enactment, id. § 801(b)(1). In other words,
`Congress has “circumscribe[d] agency discretion to allocate
`resources by putting restrictions in the operative statute[].”
`Lincoln, 508 U.S. at 193. Title V thus carries no presumption
`of non-reviewability.
`
`Invoking section 701(a)(2)’s second barrier to judicial
`review, the Secretary argues that, even if his allocation
`decisions are presumptively reviewable, there is still no law for
`us to apply because Title V provides that the Secretary must
`allocate funds “in such manner as [he] determines appropriate.”
`See 42 U.S.C. § 801(c)(7). If that were all Title V said, the
`Secretary would have a point. But the statute says much more:
`that the “amount paid to a Tribal government” shall be “based
`on
`increased expenditures
`. . .
`relative
`to aggregate
`expenditures . . . and determined in such manner as the
`Secretary determines appropriate to ensure that all amounts
`available . . . are distributed to Tribal governments.” Id.
`(emphasis added). To be sure, the provision gives the Secretary
`some discretion, but
`that discretion
`is
`limited
`to
`“determin[ing]” a method for allocating funds that is “based on
`increased expenditures” and that is “appropriate to ensure that
`all amounts available . . . are distributed.” Id. In other words,
`
`
`
`

`

`11
`however the Secretary chooses to exercise his discretion, he
`must ensure that (1) the “amount paid to . . . a Tribal
`government” is “based on increased expenditures” and (2) “all
`amounts available . . . are distributed to Tribal governments.”
`Id. This is more than enough to provide us with a “judicially
`manageable
`standard” against “which
`to
`judge
`the
`[Secretary’s] action.” Steenholdt, 314 F.3d at 638 (internal
`quotation marks omitted).
`
`This case, then, is very much like Department of
`Commerce v. New York, 139 S. Ct. 2551 (2019). There,
`emphasizing that APA section 701(a)(2) is read “quite
`narrowly,” the Supreme Court held that despite the Census Act
`“confer[ring] broad authority on the Secretary” of Commerce
`by instructing him to “take a decennial census of population in
`such form and content as he may determine,” the Act did “not
`leave his discretion unbounded” because various provisions
`constrained his authority. Id. at 2568–69 (internal quotation
`marks omitted). Here, as there, by requiring that the allocations
`be “based on increased expenditures,” Congress has not left the
`Secretary with “unbounded” discretion. See id. Indeed, our
`court has found agency action to be judicially reviewable when
`taken pursuant to statutes containing far more permissive
`language. Examples include a statute mandating that the
`Armed Forces Retirement Home’s Chief Operating Officer
`“shall” provide “high quality and cost-effective” healthcare,
`Cody v. Cox, 509 F.3d 606, 611 (D.C. Cir. 2007); an
`appropriations act providing that the “moneys” were for
`“economic losses incurred during 1999,” Milk Train, Inc. v.
`Veneman, 310 F.3d 747, 752 (D.C. Cir. 2002) (internal
`quotation marks omitted); a statute that allowed a board to
`excuse a failure to file a request to correct an error in a military
`record within a certain time period only if “it f[ound] it to be in
`the interest of justice,” Dickson v. Secretary of Defense,
`68 F.3d 1396, 1402 (D.C. Cir. 1995); and regulations providing
`
`
`
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`

`12
`that the General Services Administration “must . . . assure”
`compliance with federal ethics rules, Physicians for Social
`Responsibility, 956 F.3d at 643–44.
`
`We thus have jurisdiction to review the Tribe’s challenge
`to the Secretary’s allocation of Title V funds. The Tribe urges
`us to proceed to the merits and find that the Secretary’s
`“methodology based on population and use of IHBG data was
`arbitrary and capricious, and violated the APA as a matter of
`law.” Appellant’s Br. 42. But as the Secretary points out, “the
`Tribe never moved for summary judgment in [the] district
`court,” that court did “not address[] the merits of the Tribe’s
`APA claim,” and “the administrative record has not been filed
`in this case.” Appellee’s Br. 34. Under these circumstances, we
`think it best for the district court to consider the merits in the
`first instance. See Perot v. FEC, 97 F.3d 553, 561 (D.C. Cir.
`1996) (declining to reach the merits of an APA claim when “no
`party ha[d] produced the administrative record,” “th[e] issue
`was not fully briefed,” and “the district court did not have the
`opportunity to consider the [challenged] regulations’ legality in
`terms of that record or the APA and the case law under it”); CC
`Distributors, Inc. v. United States, 883 F.2d 146, 156 (D.C.
`Cir. 1989) (remanding a case to the district court because
`remand “would give the district court the benefit of the parties’
`arguments concerning” the relevant regulations “and thereby
`facilitate the proper disposition of plaintiffs’ claim”).
`
`IV.
`This brings us finally to the Tribe’s challenge to the district
`court’s order denying its motion for a preliminary injunction.
`To obtain a preliminary injunction, “the moving party must
`make a clear showing that four factors, taken together, warrant
`relief: likely success on the merits, likely irreparable harm in
`the absence of preliminary relief, a balance of the equities in its
`favor, and accord with the public interest.” Archdiocese of
`
`
`
`

`

`13
`Washington v. Washington Metropolitan Area Transit
`Authority, 897 F.3d 314, 321 (D.C. Cir. 2018) (internal
`quotation marks omitted). Although “[w]e review the district
`court’s ultimate decision to deny injunctive relief, as well as its
`weighing of the preliminary injunction factors, for abuse of
`discretion,” we “review the district court’s legal conclusions de
`novo.” In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir.
`2012). Here, the district court’s conclusion that the Tribe had
`failed to demonstrate a likelihood of success on the merits
`rested, as did the court’s dismissal of the case, on a legal error:
`that the Secretary’s allocation of Title V funds is unreviewable.
`Accordingly, we shall reverse the district court’s denial of the
`Tribe’s motion for a preliminary injunction.
`
`The Secretary urges us to remand the question of
`preliminary relief for the district court to consider. But unlike
`the merits, the parties have fully briefed this issue, and counsel
`for the Secretary acknowledged at oral argument that the record
`is adequate to consider the Tribe’s motion for a preliminary
`injunction. Oral Arg. Rec. 22:29–23:45. Given this, and given
`the urgency of the matter, we shall resolve the preliminary
`injunction question here and now. Because the Secretary does
`not challenge the Tribe’s claim that it will suffer irreparable
`harm, see Oral Arg. Rec. 24:01–31, our analysis focuses on the
`three remaining factors, beginning with likelihood of success
`on the merits.
`
`The Secretary chose the IHBG formula area population
`data as a proxy for “increased expenditures.” See May 5
`Document at 1–3. But as the Tribe points out, and as the record
`demonstrates, the IHBG formula area population data is, at
`least with respect to some tribes, an unsuitable proxy. Even
`though the Shawnee Tribe alleges (unchallenged by the
`Secretary) that it has 3,021 enrolled members and that it had
`expenditures of some $6.65 million in 2019, the IHBG formula
`
`
`
`

`

`14
`area population data indicates that the Tribe had a population
`of zero. See Compl. Ex. A. As a result, the Tribe received the
`minimum payment of $100,000, even though it “has incurred
`significant medical and public health expenses in responding
`to the devastation resulting from the COVID-19 pandemic” by,
`for instance, “provid[ing] essential services to its citizens
`residing on-reservation and off-reservation.” See id. ¶ 62. The
`same is likely true for amicus the Miccosukee Tribe—
`according to its brief, it has 605 enrolled members yet the
`IHBG data indicates it had zero population—as well as for the
`Eastern Delaware Band of Indians, which, according to the
`IHBG data table, had a HUD enrollment figure of 11,014 but a
`population of zero. See Miccosukee Tribe’s Br. 2; Compl. Ex.
`B at 10. Moreover, the Secretary himself acknowledged that
`the IHBG data was inadequate as a proxy for increased
`expenditures in some cases when he requested population data
`from HUD for three tribes that did not participate in the IHBG
`program, see May 5 Document at 3; U.S. Department of the
`Treasury, Coronavirus Relief Fund Frequently Asked
`Questions on Tribal Population at 1 (June 4, 2020),
`https://home.treasury.gov/system/files/136/FAQ-on-Tribal-
`Population-Data.pdf, yet he failed to do the same for the
`Shawnee Tribe, which also does not participate in the program,
`Compl. ¶ 47. Nor did the Secretary explain why he failed to
`seek alternative information for the Shawnee Tribe or the
`twenty-four other tribes with no IHBG population. On this
`record, then, the Shawnee Tribe is likely to succeed in its claim
`that the IHBG data is not a suitable proxy for “increased
`expenditures.” See 42 U.S.C. § 801(c)(7).
`
`The last two factors—harm to the opposing party and the
`public interest—also favor the Tribe. Where, as here, “the
`Government is the opposing party,” the last two factors
`“merge”: “the government’s interest is the public interest.”
`Nken v. Holder, 556 U.S. 418, 435 (2009); Pursuing America’s
`
`
`
`

`

`15
`Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). A
`party’s likelihood of success on the merits “is a strong indicator
`that a preliminary injunction would serve the public interest”
`because “[t]here is generally no public interest in the
`perpetuation of unlawful agency action.” League of Women
`Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir.
`2016). Here, the Tribe is likely to succeed in showing that the
`Secretary is distributing congressionally appropriated funds in
`violation of the authorizing statute, and the public interest
`therefore favors the Tribe.
`
`The Secretary insists that granting a preliminary injunction
`will “forc[e] [him] to create a whole new methodology based
`on a different data set with other flaws, or to make
`individualized determinations for each tribe, risking further
`delay of the distribution of funds.” Appellee’s Br. 44. The
`Tribe, however, seeks an injunction prohibiting the Secretary
`from distributing only $12 million of the remaining Title V
`funds. Whether the Secretary will have to devise a new
`methodology depends on the merits, which the district court
`will address in the first instance.
`
`V.
`For the foregoing reasons, we reverse the district court’s
`order dismissing the case and remand for further proceedings
`consistent with this opinion. We also reverse the district court’s
`order denying the Tribe’s motion for a preliminary injunction
`and remand for it to enter a preliminary injunction promptly.
`
`So ordered.
`
`