Shawnee Tribe v. Steven Mnuchin ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2020 Decided January 5, 2021
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).
Following consultation with Tribal government
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
Governments (May 5, 2020) (“May 5 Document”),
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
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.