U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:20-cv-00430-jdp

Doe, Jane v. Trump, Donald et al Assigned to: District Judge James D. Peterson Referred to: Magistrate Judge Stephen L. Crocker Cause: 28:2201 Injunction

Date Filed: 05/06/2020 Date Terminated: 08/10/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Jane Doe

represented by Guinevere Marie Moore Moore Tax Law Group LLC 150 N Wacker Drive Suite 1250 CHICAGO, IL 60606 312-549-9993 Email: guinevere.moore@mooretaxlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Nitschke Blaise & Nitschke, P.C. 123 N Wacker Dr, Suite 250 Chicago, IL 60148 312-448-6602 x251 Fax: 312-803-1940 Email: tjnitschke@blaisenitschkelaw.com ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump

represented by David Daly Conway United States Attorney's Office 222 West Washington Ave. Suite 700 Madison, WI 53703 608-264-5158 Fax: 608-658-3802

Email: david.conway@usdoj.gov (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Mitch McConnell

Defendant Steven Mnuchin

Defendant Charles Rettig

Defendant
U.S. Department of the Treasury

Defendant U.S. Internal Revenue Service

Defendant United States of America

represented by Charles P Hurley U.S. Department of Justice-Tax Division 555 4th Street, N.W. Suite 8634 Washington, DC 20001 202-305-6717 Fax: 202-514-6770 Email: Charles.P.Hurley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Peter Robins United States Department of Justice 555 4th St, N.W. Ste. 8921 Washington, DC 20001 202-307-0668 Email: samuel.p.robins@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

05/06/2020 1

COMPLAINT against All Defendants. (Filing fee $400, receipt number 0758-2673655) filed by All Plaintiffs. (Nitschke, Thomas) (Additional attachment(s) added on 5/7/2020: # 1 JS-44 Civil Cover Sheet) (arw) (Entered: 05/06/2020)

05/07/2020

Case randomly assigned to District Judge James D. Peterson and Magistrate Judge Stephen L. Crocker. (kwf) (Entered: 05/07/2020)

05/07/2020

Standard attachments for District Judge James D. Peterson required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement. (kwf) (Entered: 05/07/2020)

06/12/2020

2 MOTION TO DISMISS or in the Alternative to Stay by Defendant United States of America. Brief in Opposition due 7/6/2020. Brief in Reply due 7/13/2020. (Hurley, Charles) (Entered: 06/12/2020)

06/12/2020

3 Brief in Support of 2 Motion to Dismiss or in the Alternative to Stay by Defendant United States of America (Hurley, Charles) (Entered: 06/12/2020)

07/02/2020

4 Notice of Appearance filed by Samuel Peter Robins for Defendant United States of America. (Robins, Samuel) (Entered: 07/02/2020)

07/06/2020

5 Joint Stipulation for Extension of Time by Plaintiff Jane Doe. (Nitschke, Thomas) (Entered: 07/06/2020)

07/23/2020

6 ** TEXT ONLY ORDER ** ORDER accepting and granting 5 Joint Stipulation for Extension of Time. Signed by Magistrate Judge Stephen L. Crocker on 7/23/2020. (kwf) (Entered: 07/23/2020)

07/23/2020

Set/Reset Briefing Deadlines as to 2 MOTION TO DISMISS or in the Alternative to Stay. Brief in Opposition due 8/7/2020. Brief in Reply due 8/14/2020. (kwf) (Entered: 07/23/2020)

08/04/2020

7 Request for Issuance of Summons by Plaintiff Jane Doe. (Attachments: # 1 Summons Donald J. Trump, # 2 Summons Mitch McConnell, # 3 Summons Steven Mnuchin, # 4 Summons Charles Rettig, # 5 Summons U.S. Department of the Treasury, # 6 Summons U.S. Internal Revenue Service) (Nitschke, Thomas) (Entered: 08/04/2020)

08/06/2020
08/07/2020 08/07/2020 08/10/2020

8 Summons Issued as to Mitch McConnell, Steven Mnuchin, Charles Rettig, Donald J. Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (kwf) (Entered: 08/06/2020)
9 Notice of Appearance filed by Guinevere Marie Moore for Plaintiff Jane Doe. (Moore, Guinevere) (Entered: 08/07/2020)
10 Stipulated Motion to Stay this Action by Plaintiff Jane Doe. (Nitschke, Thomas) Modified on 8/10/2020. (lak). (Entered: 08/07/2020)
11 ** TEXT ONLY ORDER ** The parties have filed a joint motion to stay this case "until a final decision has been rendered wherein a class has been certified" in one of five other cases. Dkt. 10 . Like this case, all of those other cases challenge the constitutionality of a provision in the CARES Act, 26 U.S.C. § 6428(g)(1)(B), that limits payments to U.S. citizens whose spouses do not have a social security number. Because the parties acknowledge that one or more of those cases could be dispositive, this case is DISMISSED without prejudice. If the other cases do not resolve plaintiff's claims, plaintiff may move to reopen this case. Signed by District Judge James D. Peterson on 8/10/2020. (kwf) (Entered: 08/10/2020)

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 Case: 3:20-cv-00430-jdp Document #: 2 Filed: 06/12/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

JANE DOE, individually and on behalf of others similarly situated,
Plaintiff, v. DONALD J. TRUMP, et al.
Defendants.

) ) ) ) Case No. 3:20-cv-00430 ) ) ) ) ) )

THE UNITED STATES’ MOTION TO DISMISS OR IN THE ALTERNATIVE TO STAY THIS ACTION

Defendant, the United States of America, hereby moves the Court to dismiss

or, in the alternative, to stay the Plaintiff’s Class Action Complaint (“Complaint”)

filed in this matter seeking, among other things, a declaration that newly enacted §

6428(g) of the Internal Revenue Code (Title 26 U.S.C.) is unconstitutional.

Plaintiff also seeks temporary, preliminary and permanent injunctions prohibiting

enforcement of the statute as currently written.

The present case is one of seven Class Action Complaints seeking

substantially similar relief that have recently been filed and are currently pending

in six different U.S. District Courts. All seven cases seek certification of similarly

described, nationwide classes of persons who do not qualify for a refundable tax

credit under § 6428(g).

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Given that all of the Claims for Relief asserted by Plaintiff in this action were already before U.S. District Courts in other pending cases at the time this case was filed, this Court should exercise its inherent authority to manage its docket and dismiss, or in the alternative, stay this action, applying the wellestablished first-to-file doctrine.
The grounds for this Motion are more fully stated in the Memorandum in Support attached hereto and incorporated herein by reference.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General
__s/Charles P. Hurley______________ CHARLES P. HURLEY Washington, D.C. Bar No. 490793 SAMUEL P. ROBINS WI Bar No. 1094149 Trial Attorneys Tax Division U.S. Department of Justice P.O. Box 7238 Ben Franklin Station Washington D.C. 20044 Telephone: (202) 305-6717 Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

JANE DOE, individually and On behalf of others similarly situated,
Plaintiff, v. DONALD J. TRUMP, et al.,
Defendants.

) ) ) ) Case No. 3:20-cv-00430 ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY THIS ACTION

Introduction

Defendant, the United States of America, hereby submits the following

Memorandum in Support of its Motion to Dismiss, Or in the Alternative, Stay

Plaintiff’s Class Action Complaint (“Complaint”).1

Plaintiff alleges in her Complaint2 that she is seeking a declaration by the

Court that 26 U.S.C. § 6428(g)(1)(B), enacted by § 2201 of the Coronavirus Aid,

1 In her Complaint, plaintiff acknowledges that Jane Doe is not the Plaintiff’s actual name, but is a fictitious name for an actual person. (Compl. ¶ 2).
2 Plaintiff has not established that she has properly served the summons and complaint under Fed. R. Civ. P. 4(i). Therefore, the United States reserves the right to seek dismissal pursuant to Fed. R. Civ. P. 12(b)(5) if service is not complete on or before August 4, 2020.
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Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281, 337 (the “CARES Act”) is unconstitutional and unenforceable. (Compl. ¶ 64).
As set forth in more detail below, the present case is one of seven substantially similar class action cases currently pending among six different federal districts. In each of the seven cases, both the relief sought and the class of plaintiffs on whose behalf the cases have been brought are described in a substantially similar manner. Four of these cases, including the instant case, have been filed by the same law firm. Further, this case is not the first of the seven cases to have been filed, nor is it even the first of the four filed by the same firm. Thus, the Court has the inherent authority to dismiss or stay this case as established in the first-to-file doctrine, to avoid wasteful and duplicative litigation.
Class action cases are resource intensive for both the courts hearing them and the parties litigating them. “The first-to-file rule is intended to serve the purpose of promoting efficiency … and should not be disregarded lightly. Courts applying the first-to-file rule should be driven to maximize economy, consistency, and comity.” Trevino v. Golden State FC, LLC, 2019 WL 2710662, at *5 (E.D. Cal. 2019).
The CARES Act On March 27, 2020, the President of the United States signed the CARES Act into law. The CARES Act, as relevant here, added § 6428 to the Internal
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Revenue Code (Title 26 U.S.C.). Section 6428 authorizes certain individuals to claim a tax credit (the “CARES Act Credit”) for their 2020 tax year. An individual’s eligibility for a CARES Act Credit and the amount of the credit are based on various factors, including filing status, adjusted gross income, and the number of qualifying children, if any. See 26 U.S.C. § 6428(a) and (c).
No CARES Act Credit, however, is allowed under § 6428 to an individual who fails to provide a valid identification number for herself, any qualifying children, or her spouse, if filing jointly.3 26 U.S.C. § 6428(g)(1) and (2). A valid identification number means a Social Security Number (as defined in 26 U.S.C. § 24(h)(7)) or in the case of a qualifying child who is legally placed with an individual for adoption, an adoption taxpayer identification number. 26 U.S.C. § 6428(g)(2).
Pursuant to § 6428(f)(3)(A), the IRS is directed to “refund or credit any overpayment attributable to this section as rapidly as possible.” The IRS, however, is authorized to make advance refunds only through December 31, 2020. Id. In accordance with § 6428(f), the IRS has begun issuing advance refunds of the CARES Act Credit. See generally https://www.irs.gov/coronavirus/economic-
3 A married couple may provide only one spouse’s Social Security Number to claim a CARES Act Credit on a joint return if at least one of the spouses was a member of the Armed Forces of the United States at any time during the taxable year. 26 U.S.C. § 6428(g)(3).
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impact-payment-information-center; https://perma.cc/YUQ3-N7NG (last visited May 9, 2020).
The advance refunds are computed based on the information available to the IRS. The IRS may first use information from a taxpayer’s 2019 tax year. 26 U.S.C. § 6428(f)(1). If no 2019 tax return was filed, the IRS may use information from a taxpayer’s 2018 tax year. 26 U.S.C. § 6428(f)(5). If no 2018 or 2019 tax return was filed, the IRS may use information provided to it on a 2019 Form SSA1099, Social Security Equivalent Benefit Statement. Id.
Section 6428 does not confer upon eligible individuals any justiciable right to an advance refund. Nor does it confer any right to receive an advance refund at a particular time or in a particular manner. Section 6428(a) provides that an individual’s CARES Act Credit “shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2020.” There is no corresponding mandate that the IRS immediately issue a CARES Act Credit in the form of an advance refund.
If the IRS does not issue an advance refund to an individual who will eventually qualify for a CARES Act Credit, there is no mechanism in the statute by which the individual can force the IRS to do so. Instead, the statute contemplates that any advance refund will be reconciled with the CARES Act Credit reported on the taxpayer’s 2020 tax return. See 26 U.S.C. § 6428(e) (providing that the amount
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of any CARES Act Credit will be reduced (but not below zero) by the aggregate amount of any advance refunds and credits made or allowed to the taxpayer); and 26 U.S.C. § 6428(f)(3)(A) (providing that any advance refunds and credits will be made by December 31, 2020). Indeed, many individuals who will qualify for a CARES Act Credit have not yet received an advance refund. Some of these individuals will have to wait until 2021 to claim and receive the full credit.4
Plaintiff’s Complaint On May 6, 2020, Plaintiff Jane Doe filed the present action alleging in her Complaint that the United States has unconstitutionally deprived her of rights, privileges, benefits and/or protections provided to citizens of the United States. Plaintiff alleges in her Complaint that “[a]ny family that files a joint tax return where one of the spouses has a Social Security number and the other has an Individual Taxpayer Identification Number (“ITIN”), which the Internal Revenue Service issues to workers who lack Social Security numbers, cannot receive a Stimulus Check–unless one spouse is a member of the U.S. Armed Forces.” (Compl. ¶ 34; citation omitted).
4 See https://www.irs.gov/coronavirus/economic-impact-payment-informationcenter; https://perma.cc/YUQ3-N7NG; Q&A 29 (“If you did not receive the full amount to which you believe you are entitled, you will be able to claim the additional amount when you file your 2020 tax return.”) (last accessed May 11, 2020).
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In regard to herself, Plaintiff alleges that she is a U.S. citizen and possesses a Social Security Number. Plaintiff also alleges that she earns less than $75,000 in adjusted gross income and that her children are also U.S. citizens. Plaintiff asserts, however, that she is excluded from the government’s $2 trillion coronavirus financial relief package because she files her taxes jointly with her spouse (hereinafter referred to collectively as a ‘Mixed-Status Family’), an immigrant who does not have a Social Security number.” (Compl. ¶ 37).
Plaintiff also alleges that “[b]ut for her spouse lacking a Social Security Number, plaintiff would have received a Stimulus Check for herself and her children under the CARES Act.” (Compl. ¶ 41).5
Plaintiff further alleges that “[t]he CARES Act and Defendants’ failure to provide Plaintiff her Stimulus Check disparages Plaintiff’s choices and diminishes her personhood. By denying Plaintiff and other Mixed-Status Families Stimulus Checks, the CARES Act and Defendants force Plaintiff and her children to suffer the stigma of knowing her family is adversely treated compared to other families. The CARES Act and Defendants humiliate Plaintiff and the children of Mixed-
5 If the Plaintiff in the present case has already filed a joint federal income tax return with her spouse for the tax year 2019, she and her spouse have until July 15, 2020 to file amended individual returns. If Plaintiff and her spouse have not yet filed a joint or individual returns for 2019, they have until July 15, 2020 to file original individual returns.
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Status Families, including hers, by treating them adversely as compared to other families.” (Compl. ¶ 54).
In Count I of her Complaint, Plaintiff asserts a claim under the Fifth Amendment of the United States Constitution for Substantive Due Process alleging “[d]iscrimination based on the fundamental right to marry.” (Compl. pg. 16). Count I of her Complaint also asserts a claim for Equal Protection under the Fifth and Fourteenth Amendments to the United States Constitution. (Compl. pg. 18). Specifically, Plaintiff asserts that “26 U.S.C. § 6428, on its face and as applied to Plaintiff, violates the equal protection guarantee of the Fifth Amendment by burdening Plaintiff’s fundamental right to marry in a way that offends basic principles of justice and equality.” (Compl. ¶ 85). Plaintiff also asserts in Count I that “Defendants discriminate against Plaintiff on the basis of the alienage of her spouse.” (Compl. ¶ 96).
In Count II of the Complaint, Plaintiff asserts violations of the First Amendment. (Compl. pg. 21). Specifically, Plaintiff asserts that under § 6428(g)(1)(B), “the federal government treats Plaintiff, who is legally married, differently than other married couples simply because her spouse lacks a social security number.” (Compl. ¶ 111). Plaintiff also alleges that “[a]s a proximate result of Defendants’ conduct, Plaintiff suffered injury to her constitutional rights under the First Amendment’s Freedom of Association Clause.” (Compl. ¶ 118).
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In Count III of the Complaint, Plaintiff seeks a Temporary Restraining Order “TRO”), a Preliminary and a Permanent Injunction; and Declaratory Relief Against All Defendants prohibiting enforcement of the statute as currently written. (Compl. pg. 23).
The Chronology of the Complaints In the present case, Plaintiff is represented by the law firms of Blaise & Nitschke, and Khalaf & Abuzir (together, “Blaise & Nitschke”) which are both located in Chicago, Illinois. On April 24, 2020, Blaise & Nitschke filed its first suit seeking to have 26 U.S.C. § 6428(g)(1)(B) declared unconstitutional in the Northern District of Illinois (Case No. 1:20-cv-02531). The Complaint in the present case was filed in the Western District of Wisconsin on May 6, 2020. On that same day, Blaise & Nitschke filed a third suit in the Central District of California (Case No. 8:20-cv-858).6 Finally, on May 8, 2020, Blaise & Nitschke filed a fourth suit in the Eastern District of Wisconsin (Case No. 2:20-cv-00704).
6 In two of the Blaise & Nitschke lawsuits, John Doe v. Trump, No. 1:20-cv-02531 (N.D. Ill.) and Jane Doe v. Trump, No. 8:20-cv-858 (C.D. Cal.), Blaise & Nitschke has filed “emergency motions” seeking temporary restraining orders. Both motions are currently pending.
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The Non-Blaise & Nitschke Complaints In addition to the four Blaise & Nitschke Complaints contesting the constitutionality of § 6428, there are three additional Complaints presently pending in U.S. District Courts which assert essentially the same causes of action as are contained in the Blaise & Nitschke Complaints (the “non-Blaise & Nitschke Complaints”). The three non-Blaise & Nitschke Complaints and the dates they were filed are: 1) Jerysse Uzoegwu v. Steven T. Mnuchin, Case No. 1:20-cv-3264
(S.D.N.Y.), filed April 24, 2020; 2) Ivania Amador v. Steven T. Mnuchin, Case No. 1:20-cv-01102 (D.
Md.), filed April 28, 2020; and 3) R.V., a minor, by and through his mother and next friend v. Steven T.
Mnuchin, Case No. 1:20-cv-1148 (D. Md.), filed May 5, 2020. The Similarity of the Complaints
On its website, Blaise & Nitschke affirmatively states that the four suits it has filed are essentially the same by describing the suits in two brief paragraphs as follows:
The complaints we’ve filed seek to have a portion of the CARES Act declared unconstitutional, as it discriminates against individuals who are entitled to their stimulus payments because they filed joint tax returns with spouses who use an Individual Tax Identification Number (ITIN) to pay their taxes. ITINs are issued by the Internal Revenue Service to non-citizens who lack a social security number.
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We allege that this section of the CARES Act violates these individuals’ fundamental rights to due process and equal protection of the laws, under the United States Constitution.
(Blaise & Nitschke, https://www.blaisenitschkelaw.com/news-media/;
https://perma.cc/Q9LX-8WMY) (last visited June 5, 2020).7 A page-by-page
comparison of the Complaints confirms the similarity of the Complaints and
suggests that they were all based on a common template.
While the non-Blaise & Nitschke Complaints do not appear to have used the
same template that was used to produce the Blaise & Nitschke Complaints, all of
the Complaints (the Blaise & Nitschke Complaints and the non-Blaise & Nitschke
Complaints) raise essentially the same allegations against the United States:
x Section 6428 of the Internal Revenue Code provides an advance refund payment to eligible individuals;
x Eligible individuals must be U.S. citizens, permanent residents, or qualifying resident aliens who cannot be claimed as a dependent on someone else’s return and who has a valid social security number;
x Section 6428(g)(1)(B) requires an eligible individual’s spouse to have provided a valid identification number on the most recent tax return the couple jointly filed with the IRS;
x Section 6428 defines a “valid identification number for an adult as a social security number”;
x Plaintiffs and/or their spouses possess Individual Taxpayer Identification Numbers (“ITINs”);
7 In the News & Media section of its website, Blaise & Nitschke asserts that its lawyers “expect to file several similar complaints in the coming weeks.” Significantly, Blaise & Nitschke notes no differences among the cases it has filed. Id.
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x An ITIN is not a Social Security Number and is not a “valid identification number” as required to qualify for the CARES Act Credit;
x But for the plaintiffs or their spouses lacking social security numbers, Plaintiffs would be eligible for the CARES Act credit;
x None of the Plaintiffs or their spouses were members of the U.S. Armed Forces during the taxable year;
x Plaintiff’s choice of whom to marry is fundamental to her autonomy, dignity and self-determination; and
x The CARES Act’s and Defendants’ failure to provide Plaintiffs advance payment of the CARES Act credit diminishes their personhood.
The causes of action asserted in six of the seven Class Action Complaints
state the following similar claims:
x Substantive due process under the Fifth Amendment to the United States Constitution;
x Equal Protection under the Fifth Amendment to the United States Constitution;
x Freedoms of Expression and Association under the First Amendment to the United States’ Constitution; and
x Action for Temporary Restraining Order and Preliminary and Permanent injunctions.
One of the non-Blaise & Nitschke Complaints, R.V. v. Mnuchin, Case No.
1:20-cv-01102 (D. Md.), does not assert claims for Freedoms of Expression and
Association under the First Amendment. The Complaint filed in that matter
demonstrates, however, that the core of the case is the Plaintiffs’ claim that the
plaintiffs have been improperly denied benefits under the CARES Act due to the
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fact that either the Plaintiff Parent or the Plaintiff Parent’s spouse does not have a Social Security Number.8
The Classes Plaintiff in the present case asserts that “[t]here are 1.2 million Americans married to immigrants who do not hold Social Security numbers.” (Compl. ¶ 35). “Of these 1.2 million Americans, those who file joint returns and are not in the military are ineligible for a Stimulus Check and deprived of the right(s), benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise qualify. (Compl. ¶ 35). The description of the class in the Complaint filed in the present case provides as follows: All United States Citizens married to immigrants that file joint taxes wherein the immigrant-spouses file tax returns using an Individual Taxpayer Identification Number who would have otherwise qualified for the Stimulus Check.
8 The Plaintiff Children do not assert that they are entitled to direct payments under the CARES Act; only that they have been denied the benefit of their parents receiving such payments. The Plaintiff Children, however, do not have standing to sue to enforce their parents’ purported rights to tax benefits. See, e.g., Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 36 (1975).
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(Complaint, para. 57) (Emphasis in original). The descriptions of the classes contained in the three other Blaise & Nitschke Complaints are identical, word-forword, to the description used in the present case.9
The description of the class in each of the three non-Blaise & Nitschke Complaints, although they do not follow the Blaise & Nitschke descriptions of the classes word-for-word, are still essentially the same as the descriptions of the class in the Blaise & Nitschke Complaints and website.
In Jerysse Uzoegwu v. Steven T. Munuchin, et al., Case No. 1:20-cv-03264 (S.D.N.Y.) the description of the class is as follows “All individuals, who jointly filed their taxes with a spouse who does not have a social security number, and who did not serve in the United States Armed Forces, and who did not receive their stimulus checks pursuant to the CARES Act because of said filings.” In Amador v. Steven Mnuchin, Case No. 1:20-cv-01102 (D. Md.), the class is described as “[a]ll persons who are otherwise qualified for and would have received recovery payments but for the fact that they are excluded by 26 U.S.C § 6428(g)(1)(B) because their spouses lack social security numbers.”
9 See Jane Doe v. Donald Trump, et al., Case No. 8:20-cv-00858, ¶ 57 (C.D. Cal.); John Doe v. Donald J. Trump, et al., Case No. 1:20-cv-02531, ¶ 29 (N.D. Ill.); and Jane Does v. Donald J. Trump, et al., Case No. 2:20-cv-00704, ¶ 59 (E.D. Wis.)
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In the third non-Blaise & Nitschke Complaint, R.V. v. Mnuchin, Case No. 1:20-cv-01102 (D. Md.), the Plaintiffs seek to certify two classes. The Plaintiffs in this case are seven U.S. citizen children (minors) and their parents. Both the children and the Plaintiff Parents in this case allege that “the CARES Act intentionally discriminates against U.S. citizen children who have undocumented parents, by denying them the benefit of the Acts economic impact payments for children.” (R.V. v. Mnuchin Compl. ¶¶ 72 and 85).
The Plaintiff Parents go on to state that they seek to certify a nationwide class for damages described as: “persons whose U.S. citizen children have not received the benefits of economic impact payments for ‘qualified children’ under the CARES Act solely because at least one of the children’s parents is an undocumented immigrant who has no social security number.” (¶ 64).
The second class Plaintiffs in R.V. v. Mnuchin seek to certify is a nationwide class described as: “all U.S. citizen children under age 17 who have been or will be denied the benefits of economic impact payments for ‘qualified children’ under the CARES Act solely because the children have a parent who is an undocumented immigrant who has no social security number.” (¶ 57).
Thus, both of the proposed classes in R.V. v. Mnuchin include only persons whose families did not receive CARES Act benefits because one or both of the
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parents in the family was an immigrant who did not possess a Social Security Number.
ARGUMENT A. THE FIRST-TO-FILE RULE SHOULD BE APPLIED IN THE
PRESENT CASE TO AVOID DUPLICATIVE LITIGATION In McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 888 (7th Cir. 2012), the Seventh Circuit described the first-to-file doctrine as follows: The district court has broad discretion to dismiss a complaint for reasons of wise judicial administration ... whenever it is duplicative of a parallel action already pending in another federal court. (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993)). In Hubbard v. Papa John’s Int’l, Inc., 2019 WL 6119242, at *3 (W.D. Ky. 2019) the court held that “[w]hen actions involving nearly identical parties and issues have been filed in two different district courts, the court in which the first suit was filed should generally proceed to judgment.” (Citations omitted).10 As the courts have recognized, this practice “conserves judicial resources by minimizing duplicative or piecemeal litigation and protects the parties and the courts from the possibility of conflicting results.” Id. (Citations omitted.). See also Wallerstein v. Dole Fresh Vegetables, Inc., 967 F. Supp. 2d 1289, 1292-93 (N.D. Cal. 2013)
10 The first two cases filed in regard to this matter were both filed on April 24, 2020: Jerysse Uzoegwu v. Steven T. Munuchin, et al., Case No. 1:20-cv-03264 (S.D.N.Y.) a non-Blaise & Nitschke case; and Jane Doe v. Donald J. Trump, et al., Case No. 1:20-cv-02531 (N.D. Ill.) a Blaise & Nitschke case.
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(“The first-to-file rule is a generally recognized doctrine of federal comity permitting a district court to decline jurisdiction over an action. The rule is primarily meant to alleviate the burden placed on the federal judiciary by duplicative litigation and to prevent the possibility of conflicting judgments. As such, the rule should not be disregarded lightly.”) (Citations omitted; emphasis added).
In Chapman v. Progressive Am. Ins. Co., 2017 W.L. 3124186, at *1 (N.D. Fla. 2017), the court held that “[a]pplying the first-to-file rule requires evaluation of three factors: (1) the chronology of the two actions; (2) the similarity of the two parties; and (3) the similarity of the issues.”
The issue of “whether cases are substantially similar is a question of substance rather than form. As long as the underlying facts are the same … the fact that the two complaints allege violations of different state laws is not enough to render them substantially dissimilar for purposes of the first-to-file analysis.” Askin v. Quaker Oats Co., 2012 WL 517491, at *4 (N.D. Ill. 2012). See also Kohn Law Group, Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1240-41 (9th Cir. 2015) (“[T]he first-to-file rule does not require exact identity of the parties. Rather, the first-to-file rule requires only substantial similarity of the parties….” The issues in both cases also need not be identical, only substantially similar. To
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determine whether two suits involve substantially similar issues, we look at whether there is ‘substantial overlap’ between the two suits.”) (Citations omitted).
The present case is exactly the type of case where the first-to-file rule should be applied. There are currently seven cases, all filed as class actions, pending in six different federal district courts, making nearly identical allegations that, if they all proceed, will potentially necessitate litigating the exact same facts and law in each of the cases.
There is, however, no reason for all seven of these cases to proceed. See United States v. Mendoza, 464 U.S. 154, 159 (1984) (“[No] significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and … there is no sound reason for burdening the courts with repetitive litigation.”). (Citations omitted). B. DISMISSAL OF THIS LAWSUIT IS APPROPRIATE UNDER THE
COURT’S INHERENT AUTHORITY TO CONTROL ITS DOCKET It is well-settled that a district court has broad, inherent power to control its docket to achieve the orderly and expeditious disposition of cases. See generally Trippe Mfg. Co. v. Am. Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995) (“A district court has ‘an ample degree of discretion’ in deferring to another federal proceeding involving the same parties and issues to avoid duplicative litigation.” (quoting Kerotest Mfg. Co. v. C–O–Two Fire Equipment Co., 342 U.S. 180, 183
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(1952)); Prolitec, Inc. v. ScentAir Techs., Inc., 945 F. Supp. 2d 1007, 1008 (E.D. Wis. 2013).
Permitting Plaintiff to proceed with this lawsuit, which raises substantially similar factual and legal issues as six other pending class actions, would be an unnecessary burden on judicial resources and would risk inconsistent rulings. Moreover, Plaintiff will not be prejudiced by the dismissal of this lawsuit, as her counsel in this matter is also challenging the constitutionality of the CARES Act credit in other district courts and seeks the same relief, including class certification, in each instance. C. ALTERNATIVELY, THE COURT SHOULD STAY THE PRESENT
CASE UNTIL SUCH TIME AS THE DUPLICATE LITIGATION INVOLVING THE PRESENT CASE NO LONGER POSSESS A RISK In Adkins v. J.B. Hunt Transport, Inc., 293 F. Supp. 3d 1140, 1149-50 (E.D. Cal. 2018), the court held that, like the power to dismiss a case pursuant to the first–to-file doctrine, “[t]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants.” The court in Adkins also held that “[i]n evaluating whether to stay proceedings the court is concerned with balancing competing interests and should consider: (1) the potential prejudice to the non-moving party; (2) hardship and
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inequity to the moving party if the action is not stayed; and (3) the judicial
resources that would be saved by avoiding duplicative litigation….” Id.
A stay in the present case would be appropriate because:
1) The issuance of a stay will not harm Plaintiffs in the present case as the fact and legal issues in the first filed case are the same issues are in the present case and those issues will be tried by the same lawyers that are representing the Plaintiffs in the present case;
2) If a stay is not issued, the Defendant United States will be significantly harmed by having to try the same issues multiple times; and
3) If a stay is not issued, the six courts currently involved in this matter will each have to try the same legal and factual issues as the other courts, resulting in a significant but unnecessary expenditure of judicial resources.
D. THE DISMISSAL OR STAY OF THIS CASE UNDER THE FIRSTTO-FILE DOCTRINE WILL NOT ITSELF DENY PLAINTIFF THE OPPORTUNITY TO LITIGATE HER RIGHT TO CLASS CERTIFICATION
In Montana v. United States, 440 U.S. 147, 153 (1979), the Supreme Court
held that:
To preclude parties from contesting matters they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. (Emphasis added).
On the other hand, the Supreme Court, in Taylor v. Sturgelll, 553 U.S. 880,
892-93 (2008), held that “[a] person who was not a party to a suit generally has not
had a ‘full and fair opportunity to litigate’ the claims and issues settled in that suit.
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The application of claim and issue preclusion to non-parties thus runs up against the deep-rooted historic tradition that everyone should have his own day in court.”
In Smith v. Bayer Corp., 564 U.S. 299 (2011), the Supreme Court rejected “the novel and surely erroneous argument that a non-named class member is a party to the class-action litigation before the class is certified.” Id. at 313 (Emphasis added; citation omitted). The Court went on to note that “Bayer warns that under our approach class counsel can repeatedly try to certify the same class by the simple expedient of changing the named plaintiff in the caption of the complaint.” Id. at 316. The Court, however, dismissed Bayer’s warning holding that “our legal system relies on principles of stare decisis and comity among courts to mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs. We have not thought that the right approach (except in the discrete categories of cases we have recognized) lies in binding non-parties to a judgment.” Id. at 317 (Emphasis added). Finally, the Court held that “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.” Id. (Emphasis added).
A year after the Supreme Court decided Smith v. Bayer Corp., the Seventh Circuit, noting that the Supreme Court’s reference to “comity” in Bayer was “cryptic” and “novel,” held that “the effect of the doctrine of comity … unlike res judicata … is a doctrine that does not require but merely permits preclusion….”
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Smentek v. Dart, 683 F.3d 373, 375 and 376 (7th Cir. 2012) (Emphasis added).. See also Cleary v. American Capital, Ltd., 2014 WL 793984, *3 (D. Mass. 2014) (“The Smentek decision makes clear that the doctrine of comity is not a rule of preclusion, but rather one of deference.”).
The holdings in Smith v. Bayer Corp. and Smentek make clear that unnamed members of a putative class for which the court has not granted class certification are not “parties” to the litigation. Smith v. Bayer Corp., 564 U.S. at 315 (“in the absence of certification under [Fed. R. Civ. P. 23(f)] the precondition for binding Smith was not met. Neither a proposed class nor a rejected class action may bind non-parties.”). See also North Sound Capital LLC v. Merck & Co., 938 F.3d 482, 492-93 (3d Cir. 2019) (“It is axiomatic that an unnamed class member is not a party to the class-action before the class is certified. For class actions seeking predominantly damages Rule 23 adds that putative class members do not become party plaintiffs until the time to opt out has elapsed.”) (Citations omitted emphasis in original and added).
Accordingly, if the court grants Defendant’s Motion to Dismiss or Stay this action, since neither of these motions go to the merits of the case, and since the Court has neither granted nor denied class certification at the present time (nor has any of the other five Courts hearing claims similar to those being made in the present case), neither the named plaintiff in this case, Jane Doe, nor the members
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of the putative class in the present case will be bound on the issue of class certification or on the merits as a result of how this court rules on this Motion to Dismiss or to Stay.
Further, since the members of the putative class in the present case meet the descriptions of the proposed classes in each of the six remaining cases, if any of the courts hearing those cases grant class certification, the named plaintiff in this case, Jane Doe, as well as all of the members of the putative class in this case, will become members of the class that is certified.
Should none of the other five courts with pending class actions related to the present case grant class certification, and should the named plaintiff in this case, notwithstanding the prior denials, still want to proceed, she could refile this case and move for class certification. This Court would then have to decide whether or not it should allow the case to continue or, based on the earlier denials of certification, apply the rule of comity and its own discretion to preclude further litigation in this matter.
In any event, it is clear that the Court’s granting the pending Motion to Dismiss or to Stay will not, itself, deny the named plaintiff or unnamed class members the opportunity obtain class certification regarding the issues involved in this matter.
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Conclusion Since the present case, which raises essentially the same allegations as six other pending cases, was not the first case to be filed, this Court, to avoid the unnecessary expenditure of substantial judicial and party resources and to avoid the risk of conflicting judgments, should exercise its inherent authority to dismiss or stay this case.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General
_s/ Charles P. Hurley CHARLES P. HURLEY Washington, D.C. Bar No. 490793 SAMUEL P. ROBINS WI Bar No. 1094149 Trial Attorneys Tax Division U.S. Department of Justice P.O. Box 7238 Ben Franklin Station Washington D.C. 20044 Telephone: (202) 305-6717 Charles.P.Hurley@usdoj.gov Attorneys for the United States
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 Case: 3:20-cv-00430 Document #: 1 Filed: 05/06/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

JANE DOE, individually and

)

on behalf of others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, in his individual and official )

capacity as President of the United States;

)

MITCH MCCONNELL, in his individual and

)

official capacity as a Senator and Sponsor of

)

S. 3548 CARES Act; and STEVEN MNUCHIN, )

in his individual and official capacity as the

)

Acting Secretary of the U.S. Department of

)

Treasury; CHARLES RETTIG, in his individual )

and official capacity as U.S. Commissioner of

)

Internal Revenue; U.S. DEPARTMENT OF THE )

TREASURY; the U.S. INTERNAL REVENUE )

SERVICE; and THE UNITED STATES OF

)

AMERICA,

)

)

Defendants.

)

Case No. 3:20-cv-00430 JURY DEMANDED

CLASS ACTION COMPLAINT

NOW COMES Plaintiff, JANE DOE, (hereinafter “Doe” or “Plaintiff”), individually and

on behalf of the proposed class, by and through her attorneys, Blaise & Nitschke, P.C., and

submits her class action complaint against DONALD J. TRUMP, in his individual and official

capacity as President of the United States; MITCH MCCONNELL, in his individual and official

capacity as United States Senator and the Sponsor of S. 3548 CARES Act; STEVEN

MNUCHIN, in his individual and official capacity as the Acting Secretary of the U.S.

Department of Treasury; CHARLES RETTIG, in his individual and official capacity as U.S.

Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE TREASURY; the U.S.

INTERNAL REVENUE SERVICE; and the UNITED STATES OF AMERICA (hereinafter

collectively referred to as “Defendants”). In furtherance whereof, Plaintiff states as follows:

NATURE OF THE CASE

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This is a class action based upon Defendants’ unconstitutional deprivation of the rights, privileges, benefits and/or protections provided to United States Citizens, via the enactment and subsequent enforcement of the S. 3548-Coronavirus Aid, Relief, and Economic Security Act (hereinafter “CARES Act”), both enactment and enforcement of which evidence the discriminatory purpose and intent of said Act.
Plaintiff is an individual who possesses a social security number and whose spouse lacks a social security number. Pursuant to 26 U.S.C. § 6428 (g)(1)(B), enacted as part of the CARES Act, Plaintiff receives no recovery payment under 26 U.S.C. § 6428 (a) even though she and her children are U.S. citizens.
Plaintiff seeks a declaration that 26 U.S.C. § 6428 (g)(1)(B), as enacted by Section 2101 of the CARES Act (hereinafter the “Exclusion Provision”), is unconstitutional. Plaintiff further seeks class-wide relief enjoining enforcement of 26 U.S.C. § 6428 (g)(1)(B), as enacted by Section 2101 of the CARES Act, as written and further requiring Defendants to treat Plaintiff, and those similarly situated, the same as other married individuals.
PARTIES 1. Plaintiff JANE DOE is a U.S. citizen who at all times mentioned in this Complaint resided in the Western District of Wisconsin. Plaintiff has a social security number and her spouse does not have a social security number. 2. That “Jane Doe” is not Plaintiff’s actual name, but rather is a fictitious name for an actual person as herein described, in order to protect her actual identity, which is protected under the Fifth Amendment and the facts alleged herein.
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3. Defendant, DONALD J. TRUMP, in his individual and official capacity as President of the United States, is the President of the United States who signed the CARES Act into law on March 27, 2020.
4. Defendant, MITCH MCCONNELL, in his individual and official capacity as United States Senator, is the Sponsor of S. 3548-CARES Act, and introduced it in the United States Senate (“Senate”) on March 19, 2020.
5. Defendant, STEVEN MNUCHIN, in his individual and official capacity, is the Acting Secretary of the U.S. Department of Treasury. In that capacity, among other things, he oversees the collection of revenue, the preparation of plans for the improvement and management of the revenue and the preparation and report of estimates of the public revenue and public expenditures. As Secretary, Defendant Mnuchin exercises full authority to administer and enforce the internal revenue laws and has the power to create an agency to enforce these laws. As part of his duties, Defendant Mnuchin oversees the issuance of recovery payments to eligible individuals under the CARES Act.
6. Defendant, CHARLES RETTIG, in his individual and official capacity, is the United States Commissioner of Internal Revenue. In that capacity, Defendant Rettig administers the application of the internal revenue laws and tax conventions to which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig reports to the Secretary of the Treasury, Defendant Mnuchin. As part of his duties, Defendant Rettig oversees the issuance of recovery payments to eligible individuals under the CARES Act.
7. Defendant U.S. DEPARTMENT OF THE TREASURY is an agency of the U.S. government. The U.S. Department of the Treasury operates and maintains systems that are critical to the nation's financial infrastructure, such as the production of coin and currency, the
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disbursement of payments to the American public, revenue collection, and the borrowing of funds necessary to run the federal government.
8. Defendant U.S. INTERNAL REVENUE SERVICE is a bureau of the U.S. Department of the Treasury organized to carry out the responsibilities of the Secretary of the Treasury under section 7801 of the Internal Revenue Code. The Internal Revenue Service was created based on the legislative grant of authority to the Secretary of the Treasury to enforce the internal revenue laws. The IRS calculates and sends recovery payments to those eligible under the CARES Act.
9. Defendant, UNITED STATES OF AMERICA, acted through its agencies U.S. DEPARTMENT OF THE TREASURY and U.S. INTERNAL REVENUE SERVICE with respect to this matter.
10. Defendants are each sued in their individual and official capacities and are the persons, offices, and/or agencies most responsible for the conduct alleged herein.
11. Each of the Defendants had actual and/or constructive knowledge of the acts of the other Defendants as described herein, and ratified, approved, joined in, acquiesced in, and/or authorized the acts of the other, and/or retained the benefits of the said acts.
JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiff’s causes of action arising under the United States Constitution (the “Constitution”). 13. This Court may grant Plaintiff’s request for declaratory relief and injunctive relief under 28 U.S.C. §§ 2201 and 2202. 14. Venue is appropriate in the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. §1391(b) because 1) a substantial part of the events giving
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rise to the claims alleged herein occurred in this judicial district, and 2) Plaintiff Doe resides within this District and no real property is involved in this action.
15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343, which gives the district court original jurisdiction over civil rights claims.
16. The United States cannot assert sovereign immunity for this action for declaratory and injunctive relief against its agencies, and the agencies’ officers, pursuant to 5 U.S.C. § 702.
STATEMENT OF FACTS 17. On March 13, 2020, President Donald J. Trump declared the 2020 coronavirus global pandemic (“COVID-19”) a national emergency. Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, WHITEHOUSE.GOV (March 13, 2020), https://www.whitehouse.gov/presidential-actions/ proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/ (last visited April 30, 2020). 18. This civil rights action challenges the CARES Act on constitutional grounds. The CARES Act denies tax-paying U.S. citizens their rights, privileges, benefits and/or protections embodied in § 2101 of the CARES Act which, as part of its provisions, amends Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986, by adding a new section 6428, entitled “2020 Recovery Rebates For Individuals” (“Sec. 6428”). S. 3548, 116th Cong. (2020). 19. Sec. 6428 is codified at 26 U.S.C. § 6428. 20. The CARES Act was introduced in the Senate on March 19, 2020 by Mitch McConnell (for himself, Mr. Alexander, Mr. Crapo, Mr. Grassley, Mr. Rubio, Mr. Shelby, and Mr. Wicker). S. 3548, 116th Cong. (2020).
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21. The CARES Act was signed into law by President Donald J. Trump on March 27, 2020. Statement by the President, WHITEHOUSE.GOV (March 27, 2020) https://www.whitehouse. gov/briefings-statements/statement-by-the-president-38/ (last visited Apr 24, 2020).
22. The CARES Act full title reads: “To provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic.” S. 3548, 116th Cong. (2020).
23. Sec. 6428 authorizes the Internal Revenue Service to disburse $1,200.00 to each “eligible individual" earning up to $75,000.00 in adjusted gross income who have a Social Security number, and an additional $500.00 for each child under the age of 17 (hereinafter “the Stimulus Check”). 26 U.S.C. § 6428.
24. Sec. 6428 authorizes the Internal Revenue Service to disburse $2,400.00 to “eligible individuals filing a joint return” when earning up to $150,000.00 in adjusted gross income. 26 U.S.C. § 6428.
25. Sec. 6428(c) lessens these amounts for individuals making more than $75,000.00 and married couples filing jointly who make more than $150,000.00. 26 U.S.C. § 6428(c)
26. Sec. 6428, through a combination of provisions, excludes otherwise qualified individuals from receiving the CARES Act Stimulus Checks solely because their spouses lack social security numbers.
27. The Stimulus Checks include Defendant Trump’s name. Defendant Mnuchin admits that the inclusion of Defendant Trump’s name on the Stimulus Checks was Defendant Mnuchin’s idea. Devan Cole, Mnuchin Says Putting Trump’s Name on Coronavirus Stimulus Checks Was His Idea, CNN (April 20, 2020), https://www.cnn.com/2020/04/19/politics/stevenmnuchin-trump-name-stimulus-checks-cnntv/index.html (last visited May 1, 2020).
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28. To be eligible to receive a payment, an individual: • must be a U.S. citizen, permanent resident or qualifying resident alien; • cannot be claimed as a dependent on someone else’s return; • must have a Social Security number (“SSN”) that is valid for employment (“valid SSN”) o Exception: If either spouse is a member of the U.S. Armed Forces at any time during the taxable year, then only one spouse needs to have a valid SSN; and • must have an adjusted gross income below an amount based on his or her filing status and the number of his or her qualifying children.
Economic Impact Payment Information Center, IRS.GOV (April 24, 2020) https://www.irs.gov/ coronavirus/economic-impact-payment-information-center (last visited April 24, 2020).
29. Under Sec. 6428 (d), Plaintiff is defined as an “eligible individual” because she is neither a “nonresident alien individual” nor a dependent child.
30. Plaintiff Jane Doe’s children are also defined as “qualifying” for the Stimulus Checks under Sec. 6428 (a)(2) because the children are under the age of 17 and live in the United States. 26 U.S.C. § 6428 (c) (2020).
31. However, Section 6428 (g)(1)(B) also requires an eligible individual’s spouse to have provided a “valid identification number” on the most recent tax return filed jointly with the IRS.
32. Section 6428 (g)(2) (the “Exclusion Provision”) defines a “valid identification number” for an adult as a social security number.
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33. Secs. 6428(g)(1)(B) and (g)(2) operate together to require both spouses filing jointly to have social security numbers in order for any member of the family, including the qualifying children, to be eligible for the Stimulus Checks.
34. Any family that files a joint tax return where one of the spouses has a Social Security number and one has an Individual Taxpayer Identification Number (“ITIN”), which the Internal Revenue Service issues to workers who lack Social Security numbers, cannot receive a Stimulus Check — unless one spouse is a member of the U.S. Armed Forces. Jenny Jarvie, These U.S. Citizens Won’t Get Coronavirus Stimulus Checks – Because Their Spouses Are Immigrants, LOS ANGELES TIMES (April 20, 2020), https://www.latimes.com/world-nation/story/2020-0420/u-s-citizens-coronavirus-stimulus-checks-spouses-immigrant (last visited April 24, 2020).
35. There are 1.2 million Americans married to immigrants who do not hold Social Security numbers. Profile of the Unauthorized Population: United States, MIGRATION POLICY INSTITUTE, https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US (last visited May 2, 2020).
36. Of the 1.2 million Americans, those who file joint tax returns and are not in the military are ineligible for a Stimulus Check and deprived of the right(s), benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise qualify.
37. Plaintiff is a U.S. citizen who earns less than $75,000.00 in adjusted gross income, whose children are also U.S. citizens, and is excluded from the government’s $2 trillion coronavirus financial relief package because she files her taxes jointly with her spouse (hereinafter referred to collectively as a “Mixed-status Family”), an immigrant who does not have a Social Security number.
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38. Plaintiff is married to an immigrant who pays taxes and files tax returns with an Individual Taxpayer Identification Number. The Mixed-status Family files joint tax returns and neither are in the military.
39. On her most recent tax returns, Plaintiff provided her social security number, which is required by Sec. 6428 (g)(1)(A) in order for an eligible individual to receive a Stimulus Check. Plaintiff also provided her children’s social security numbers, which is required by Sec. 6428 (g)(1)(C) in order for payments for qualifying children to be included to receive a Stimulus Check. Plaintiff also provided the ITIN of her spouse on the tax returns.
40. However, as a result of Sec. 6428 (g)(1)(B), although Plaintiff and her children are U.S. citizens, and Plaintiff would otherwise have received a Stimulus Check under Sec. 6428 (a), Plaintiff did not receive a Stimulus Check because her spouse lacks a social security number.
41. But for her spouse lacking a social security number, Plaintiff Doe would have received a Stimulus Check for herself and her children under the CARES Act.
42. Had Plaintiff not been married to an immigrant with an Individual Taxpayer Identification Number, Plaintiff and her children would have otherwise qualified for a Stimulus Check.
43. There is no mechanism by which Plaintiff can dispute the government’s decision to deny her a Stimulus Check.
44. During the House of Representatives debate on the CARES Act, Representative TJ Cox pointed out what he called “this bill’s glaring shortcomings” which included the fact that the bill “punishes mixed-status households and denies some American citizens benefits they deserve.” 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020) (statement of Rep. Cox of CA).
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45. The original Senate version of the CARES Act, S. 3548, required all married joint filers to include social security numbers for both spouses. However, the Senate created an exception for cases in which “at least 1 spouse was a member of the Armed Forces of the United States at any time during the taxable year and at least 1 spouse [has a social security number].” Sec. 6428 (g)(3). The exception for military Mixed-status Families appeared in the Senate’s final version of the CARES Act, H.R. 748, and was enacted into law.
46. Neither Plaintiff nor her spouse was a member of the Armed Forces of the United States at any time during the taxable year.
47. Sec. 6428 (g)(3) demonstrates that Congress was aware that the Stimulus Checks would be generally unavailable to qualified individuals who are married to and jointly file their taxes with non-citizens who lack a social security number.
48. In the weeks following passage of the CARES Act, the U.S. economy continued to contract because of the COVID-19 pandemic. Across the U.S., states shut down schools and businesses and ordered residents to stay at home to slow the spread of the coronavirus. See Which States Are Reopening and Which Are Still Shut Down, THE NEW YORK TIMES (April 27, 2020) https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html (last visited April 29, 2020).
49. On April 23, 2020, the U.S. Department of Labor reported that the advance seasonally adjusted insured unemployment rate was 11% for the week ending April 11. News Release, Unemployment Insurance Weekly Claims, U.S. DEPARTMENT OF LABOR (April 23, 2020), https://www.dol.gov/ui/data.pdf (last visited April 29, 2020). The number of initial jobless claims totaled 4.2 million in the week ending April 18.
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50. The U.S. is now the country with the highest number of reported COVID-19 cases. Coronavirus Map: Tracking the Global Outbreak, THE NEW YORK TIMES (April 27, 2020), https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html?action= click&pgtype=Article&state=default&module=styln-coronavirus&variant=show&region= TOP_BANNER&context=storyline_menu (last visited April 29, 2020).
51. Federal law generally requires all wage earners to file tax returns and use an identification number. I.R.C. § 1. Individuals apply for ITIN by submitting a W-7 form and a completed tax return to the IRS. I.R.C. § 6109. The W-7 form requires applicants to prove their identity and foreign status with any of 13 acceptable documents by the IRS, such as a passport or a birth certificate. Instructions for Form W-7, INTERNAL REVENUE SERVICE (Sept. 2019), https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 29, 2020).
52. The ITIN application process is not an immigration enforcement tool, and the IRS is prohibited by law from sharing any taxpayer information with any other governmental agencies. I.R.C. § 6103(a). An estimated 4.3 million adults file taxes using an ITIN. How the Tax Rebate in the Senate’s Bill Compares to Other Proposals, INSTITUTE ON TAXATION AND ECONOMIC POLICY (March 25, 2020), https://itep.org/how-the-tax-rebate-in-the-senates-billcompares-to-other-proposals/ (last visited April 29, 2020).
53. The IRS estimates ITIN tax filers pay over $9 billion in annual payroll taxes. IRS Nationwide Tax Forum: Immigration and Taxation, INTERNAL REVENUE SERVICE (2014), https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20Taxation.pdf (last visited April 29, 2020).
54. The CARES Act and Defendants’ failure to provide Plaintiff her Stimulus Check disparages Plaintiff’s choices and diminishes her personhood. By denying Plaintiff and other
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Mixed-status Families their Stimulus Checks, the CARES Act and Defendants force Plaintiff and her children to suffer the stigma of knowing her family is adversely treated compared to other families. The CARES Act and Defendants humiliate Plaintiff and the children of Mixed-status Families, including hers, by treating them adversely as compared to other families.
55. In addition, requiring Mixed-status Families to file their tax returns as married filing separately for the putative Class Member to be entitled to the Stimulus Check has the consequence of higher tax rate and reduction in credits and deductions that would otherwise be available if the putative Class Member filed taxes under the married filing jointly status. See Corbin Blackwell, CFP, Married Filing Separately: Marriage Tax Benefit or Penalty?, BETTERMENT (January 25, 2019), https://www.betterment.com/resources/married-filingseparately (last visited April 30, 2020); see also Andrea Woroch, Married Couples: Is It Better to File Taxes Jointly or Separately?, U.S. NEWS MONEY (January 6, 2020), https://money. usnews.com/money/personal-finance/taxes/articles/married-couples-is-it-better-to-file-taxesjointly-or-separately (last visited April 30, 2020).
56. Further, requiring Mixed-status Families to file their tax returns as married filing separately means that Mixed-status Families will be severely disadvantaged in proving the legitimacy of their marriage for the purposes of lawful immigration. See Blackwell, supra; see also Halina Schiffman-Shilo, Opinion: The Cruelties of the COVID-19 Stimulus Bill, CITYLIMITS.ORG (April 3, 2020), https://citylimits.org/2020/04/03/opinion-the-cruelties-of-thecovid-19-stimulus-bill/ (last visited May 4, 2020).
CLASS ACTION ALLEGATIONS 57. Plaintiff brings this claim individually and on behalf of the following putative class (the “Class”), pursuant to Federal Rule of Civil Procedure 23:
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All United States Citizens married to immigrants that file joint taxes wherein the immigrant-spouses file tax returns using an Individual Taxpayer Identification Number who would have otherwise qualified for the Stimulus Check. Plaintiff reserves the right to amend the Class and any potential subclass definitions if further investigation and discovery indicate that the Class and potential subclass definitions should be narrowed, expanded, or otherwise modified. Excluded from the Class and potential subclass are any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. 58. The Class is so numerous that joinder of all individual members (individually, “Class Member” or collectively, “Class Members”) in one action would be impracticable, given the expected Class size and modest value of individual claims. 59. There are more than 1.2 million Americans that are married to immigrants who lack Social Security numbers. 60. Of the 1.2 million Americans, those who file joint tax returns and are not in the military would meet the above-referenced Class definition. 61. The Migration Policy Institute reported that 4.1 million U.S. Citizen children live with at least one undocumented immigrant parent. U.S. Randy Capps, Michael Fix, and Jie Zong, A Profile of U.S. Children with Unauthorized Immigrant Parents, MIGRATION POLICY INSTITUTE (January 2016), https://www.migrationpolicy.org/research/profile-us-children-unauthorizedimmigrant-parents (last visited April 29, 2020). 62. Class Members can be identified through Defendants’ records. 63. Plaintiff’s claims are typical of the claims of the Class Members, as they are based on the same legal theory and arise from the same unlawful conduct.
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64. There are common questions of law and fact affecting Class Members, which common questions predominate over questions that may affect individual members. These common questions include, but are not limited to:
a. Whether and to what extent Defendants have deprived Class Members of their First Amendment Rights; Equal Protection and Due Process under the Law;
b. Whether and to what extent Defendants have deprived Class Members of their property interest;
c. Whether and to what extent Defendants have deprived Class Members of their rights, privileges, and/or immunities secured by the Constitution of the United States;
d. Whether Section 2101 of the CARES Act, which enacted 26 U.S.C. § 6428 (g)(1)(B), violates the U.S. Constitution by discriminating against individuals with social security numbers who are married to individuals who lack social security numbers;
e. Whether Plaintiff and the Class suffered harm as a result of Defendants’ unlawful policies and/or practices and enforcement of 26 U.S.C. § 6428 (g)(1)(B), as enacted by the CARES Act;
f. Whether Class Members are entitled to actual damages, statutory damages, and/or punitive damages as a result of Defendants’ wrongful conduct;
g. Whether Class Members are entitled to equitable and injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act;
h. What the scope of a resulting permanent injunction would include; and
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i. Whether or not Class Members are entitled to Declaratory Judgment relating to their classification and exclusion, among others, under the CARES Act.
65. The claims alleged by the named individual Plaintiff are typical of the claims of the Class because the challenged statutory provision applies with the same force to the named individual Plaintiff as they do to all other members of the Class.
66. Plaintiff will fairly and adequately represent the Class Members. Plaintiff has no interests that conflict with the interests of Class Members. Plaintiff possesses a strong personal interest in the subject matter of this lawsuit and the claims raised. Plaintiff has retained counsel experienced in handling civil rights cases, class actions, federal litigation, and litigation involving constitutional law. Counsel has the legal knowledge and resources to represent fairly and adequately in the interests of all Class Members in this action. Neither Plaintiff nor her counsel have any interests that might cause them not to pursue these claims vigorously.
67. The universe of people affected by the CARES Act’s and Defendants’ unlawful policy and/or practice is ascertainable through Defendants’ records and, therefore, the Class is ascertainable.
68. This action should be maintained as a class action because the prosecution of separate actions by individual Class Members would create a risk of inconsistent or varying adjudications with respect to individual members that would establish incompatible standards of conduct for the parties opposing the Class. Defendants also have acted or failed to act on grounds that generally apply to all Class Members, necessitating the declaratory and relief Plaintiff seeks. In addition, questions of law and fact common to Class Members predominate over questions affecting only individual Class Members. A class action is superior to other available methods for fairly and efficiently adjudicating the controversy because, among other things, a class action
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would concentrate a multiplicity of individual actions, which share common facts and legal disputes, in a single forum.
COUNT I Violation(s) of the Fifth Amendment to the United States Constitution
(On Behalf of Plaintiff and the Class) 69. Plaintiff re-alleges and incorporates paragraphs 1-68 of this Complaint as though fully set forth herein. 70. Defendants, acting under color of law, have violated rights secured to Plaintiff by the Fifth and Fourteenth Amendments to the United States Constitution including the right to due process of law, the right to equal protection under the law, and the penumbra of privacy rights created by the First, Third, Fourth, and Fifth Amendments that creates a fundamental right to marriage. Specifically, Defendants have failed, as applied to Plaintiff, to treat her as equal to her fellow United States citizens based solely on whom she chose to marry. I. Substantive Due Process 71. The Fifth Amendment to the United States Constitution provides that no person shall be “deprived of life, liberty or property without due process of law.” U.S. Const. amend. V. 72. The Supreme Court has reiterated in numerous contexts that the right to marry is a fundamental right under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 639640, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); Griswold, supra, at 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). 73. Discrimination based on the fundamental right to marry is presumptively unconstitutional and subject to strict scrutiny.
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74. The Fifth Amendment to the U.S. Constitution protects freedom of personal choice in matters of marriage and family life.
75. The Defendants, in their individual and official capacities as President of the United States, Senator and Sponsor of the CARES Act in the United States, Acting Secretary of the U.S. Department of Treasury, Commissioner of Internal Revenue, the U.S. Department of the Treasury, the Internal Revenue Service, and the United States of America, violated Plaintiff’s substantive due process rights and deprived Plaintiff of her rights, privileges, and/or immunities secured by the Constitution of the United States.
76. The Defendants have irreparably injured Plaintiff by engaging and continuing to engage in behavior that violates Plaintiff’s constitutional property interest rights individually and as a taxpayer in the United States.
77. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiff from the category of those citizens entitled to receive a Stimulus Check, based only on to whom she married, “slic[es] deeply into the family itself.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 498 (1977). On its face, and as applied, 26 U.S.C. § 6428 (g)(1)(B) selects certain categories of married individuals who may receive a Stimulus Check and declares that others may not. In particular, 26 U.S.C. § 6428 (g)(1)(B) denies a Stimulus Check to Plaintiff based on her choice to marry an individual who lacks a social security number.
78. 26 U.S.C. § 6428 (g)(1)(B) threatens Plaintiff’s freedom of choice in personal matters related to marriage and family, including the sanctity of Plaintiff’s interest in defining her family through personal choice.
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79. 26 U.S.C. § 6428 (g)(1)(B) intentionally and substantially infringes upon and unduly burdens Plaintiff’s liberty interests, as well as other interests that form the basis of Plaintiff’s fundamental right to marry and to choose how to define her family.
80. Plaintiff’s choice of whom to marry is fundamental to her autonomy, dignity, and self-determination. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiff from receiving a Stimulus Check unduly interferes with Plaintiff’s fundamental rights and liberty interests, is arbitrary, unfair, and unreasonable, and lacks an adequate justification.
81. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to her constitutional rights under the Fifth Amendment’s Due Process Clause.
82. Defendants’ violations have caused and will cause Plaintiff harm. II. Equal Protection Clause
A. Social Security Number Holder Married to ITIN Holder-Suspect Class 83. The Fifth Amendment to the United States Constitution guarantees all persons equal treatment under the law. The right to marry is secured by the Equal Protection Clause. 84. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In addition, the Privileges and Immunities Clause of the Fourteenth Amendment states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” U.S. Const. amend. XIV, § 1 Clause 2. Although the Fourteenth Amendment expressly applies to the States, it has been construed to apply to the Federal Government through the Reverse Incorporation Doctrine under Bolling v. Sharpe, 347 U.S. 497 (1954) and its progeny. See Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Adarand Constructors, Inc. v. Peña, 515
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U.S. 200 (1995) (applying strict scrutiny to the federal government based on equal protection grounds).
85. 26 U.S.C. § 6428 (g)(1)(B), on its face and as applied to Plaintiff, violates the equal protection guarantee of the Fifth Amendment by burdening Plaintiff’s fundamental right to marry in a way that offends basic principles of justice and of equality. Marriage has long been regarded as a fundamental right, the foundation of the family and of society. It embraces the right to personal choice and individual autonomy, and dignifies couples who define themselves by their commitment to each other.
86. Plaintiff is a U.S. citizen and has lawfully filed taxes in the United States, yet she is being denied the rights and privileges of citizenship under the CARES Act.
87. Similarly situated U.S. citizens and Social Security Number Holders who are not married to immigrants and who filed joint tax returns have not been denied such rights and privileges under the CARES Act.
88. Plaintiff brings this action against Defendants in their individual and official capacities for purposes of seeking declaratory and injunctive relief and challenges the Defendants’ practices and policies of discrimination both facially and as applied to her, individually and as the putative Class Plaintiff.
89. As a direct result of 26 U.S.C. § 6428 (g)(1)(B), as enacted by the CARES Act, the federal government treats Plaintiff, who is legally married, differently than other married couples simply because her spouse lacks a social security number. As a result of this disparate treatment, Plaintiff is excluded from the category of citizens entitled to receive a Stimulus Check. 26 U.S.C. § 6428 (g)(1)(B) also infringes on Plaintiff’s right to enjoy all the benefits of marriage afforded to other married couples.
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90. Defendants cannot justify creating this classification that singles out one class of married individuals with social security numbers and subjects them to disparate and injurious treatment based solely on whom they have chosen to marry.
91. Defendants intentionally discriminate against Plaintiff when they enforce this Exclusion Provision that infringes on the exercise of a fundamental right.
92. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to her constitutional rights under the Fifth Amendment’s Equal Protection Clause.
93. Defendants’ violations have caused and will cause Plaintiff harm. B. Alienage-Suspect Class 94. “[Classifications] based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372 (1971) (footnotes and citations omitted). 95. Discrimination based on the alienage of a U.S. citizen’s spouse is presumptively unconstitutional and subject to strict scrutiny. 96. Defendants discriminate against Plaintiff on the basis of the alienage of her spouse. 97. The Exclusion Provision, on its face and as applied, or threatened to be applied, violates the Due Process Clause of the Fifth Amendment; Equal Protection and Privileges and Immunities under the Fourteenth Amendment under the Reverse Incorporation Doctrine; and the well-established fundamental right to marry.
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98. Defendants have no compelling interest justifying their policies of discrimination based on the marriage to a non-U.S. Citizen, and they cannot show that this suspect class is necessary to serve any legitimate governmental interest.
99. The Defendants treat Plaintiff differently than U.S. Citizens who marry other U.S. Citizens, who are otherwise similarly situated to Plaintiff.
100. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
101. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to her constitutional rights under the Fifth Amendment’s Equal Protection Clause.
102. Defendants’ violation has caused and will cause Plaintiff harm. 103. Accordingly, the Exclusion Provision of the CARES Act violates the Due Process Clause of the Fifth Amendment to the United States Constitution; Equal Protection and Privileges and Immunities under the Fourteenth Amendment under the Reverse Incorporation Doctrine; and the well-established fundamental right to marry.
COUNT II Violation(s) of the First Amendment to the United States Constitution
(On Behalf of Plaintiff and the Class) 104. Plaintiff re-alleges and incorporates paragraphs 1-103 of this Complaint as though fully set forth herein. 105. The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I.
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106. Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one of those fundamentally protected zones of privacy. Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965).
107. The right of privacy first achieved constitutional stature in Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), wherein the Griswold Court began by noting that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” 381 U.S. at 484.
108. The Griswold opinion stressed the sanctity of marriage lying within the zone of privacy created by several fundamental constitutional guarantees. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682 (1965).
109. Defendants discriminate against Plaintiff and the Class on the basis of their protected sanctity of marriage—a fundamental right.
110. The CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the First Amendment of the United States Constitution.
111. As a direct result of 26 U.S.C. § 6428 (g)(1)(B), the federal government treats Plaintiff, who is legally married, differently than other married couples simply because her spouse lacks a social security number. As a result of the disparate treatment, Plaintiff is excluded from receiving a Stimulus Check. 26 U.S.C. § 6428 (g)(1)(B) also infringes on Plaintiff’s right to enjoy all the benefits of marriage afforded to other married couples.
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112. Defendants cannot justify creating this classification that singles out one class of married individuals with social security numbers and subjects them to different treatment based on whom they marry.
113. Defendants intentionally discriminate against Plaintiff when they enforce the Exclusion Provision of the CARES Act that infringes on the zone of privacy.
114. Defendants have no compelling interest justifying their policies of discrimination based on marriage, and they cannot show that these classifications are necessary to serve any legitimate governmental interest.
115. The Defendants treat Plaintiff differently than married U.S. Citizens who file jointly with their U.S. Citizen and/or Social Security Holder spouses, who are otherwise similarly situated to Plaintiff.
116. The CARES Act singles out law-abiding and tax-paying U.S. Citizens by denying them a benefit they and their children would otherwise be entitled to with no compelling interest justifying the law and without serving any legitimate governmental interest.
117. Sec. 6428(g) is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
118. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to her constitutional rights under the First Amendment’s Freedom of Association Clause.
119. Defendants’ violation has caused and will cause Plaintiff harm. 120. Accordingly, the Section 2101 of the CARES Act, by enacting Sec. 6428(g)(1)(B) violates the First Amendment to the United States Constitution.
COUNT III Action for Temporary Restraining Order (“TRO”);
Preliminary and Permanent Injunction; and Declaratory Relief Against All Defendants
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(On Behalf of Plaintiff and the Class) 121. Plaintiff re-alleges and incorporates paragraphs 1-120 of this Complaint as though fully set forth herein. 122. Plaintiff seeks the entry of a temporary restraining order, preliminary and permanent injunction, and Declaratory Relief, including but not limited to the following:
a. Issue a temporary, preliminary and permanent injunction against the Defendants and all those acting in concert prohibiting enforcement of the laws, as applied, at issue in this action; and
b. Issue a declaratory judgment that the Exclusion Provision of the CARES Act, as applied to Plaintiff and the Class, violates the constitutional and statutory rights of Plaintiff and denies Plaintiff the privileges and immunities to which she would otherwise be entitled.
123. Plaintiff has no adequate remedy at law and is suffering irreparable harm. There is no risk of harm to the Defendants should this Court grant an injunction prohibiting enforcement of the Exclusion Provision as enacted by the CARES Act. Meanwhile, the harm to Plaintiff is severe. The public interest is clearly served by this Court acting to order recognition of U.S. Citizens and their children consistent with the manner in which the Federal Government treats similarly situated U.S. Citizens, without regard to their marital status. Only prompt action by this federal Court ordering declaratory and injunctive relief will serve the public interest.
124. Injunctive relief is appropriate under the circumstances because Defendants have intentionally excluded otherwise eligible U.S. Citizens from receiving the Stimulus Check and, more damaging, excluding them from a benefit conferred upon all other U.S. Citizens simply because of whom they chose to marry, which is facially discriminatory and retributive.
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125. Plaintiff has suffered, and will continue to suffer, immediate and irreparable harm by reason of the conduct described above. Such immediate and irreparable harm includes, but is not limited to, the loss of a minimum of $1,200.00 U.S. Dollars and a loss of privacy, reputation in the community, and dignity.
126. Plaintiff does not have an adequate remedy at law to protect and re-establish the rights which currently have been, and continue to be, violated by Defendants’ actions. Plaintiff’s rights cannot be obtained except through injunctive relief.
127. Entering the injunctive relief that Plaintiff is seeking will cause the Defendants no harm.
128. Defendants will suffer no loss, if compelled to act in accordance with the law, by refraining from discriminating against U.S. Citizens based upon their marital status to immigrants.
129. There is a reasonable likelihood that the Plaintiff will succeed on the merits of her claims.
PRAYER FOR RELIEF WHEREFORE, Plaintiff JANE DOE, individually and on behalf of the proposed Class, by and through her attorneys, Blaise & Nitschke, P.C., prays for relief as follows: a. For an Order certifying this action as a class action and appointing Plaintiff and her
Counsel to represent the Class; b. An Order granting Blaise & Nitschke, P.C. and *Khalaf & Abuzir, LLC as class
counsel;
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c. A temporary, preliminary and/or permanent injunction against the Defendants, and all those acting in concert, prohibiting enforcement of the laws as written and instead applying the provision as follows; i. Issuing a Temporary Restraining Order directing that Section 2101 of the CARES Act be applied as follows: “(a) In General.—Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986 is amended by inserting after section 6427 the following new section: SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS [. . .] “(h) Identification Number Requirement.— “(1) IN GENERAL.—No credit shall be allowed under subsection (a) to an eligible individual who does not include on the return of tax for the taxable year— “(A) such individual’s valid identification number, “(B) in the case of a joint return, the valid identification number of such individual’s spouse for at least one of the filing spouses, and “(C) in the case of any qualifying child taken into account under subsection (b)(1)(B), the valid identification number of such qualifying child. “(2) VALID IDENTIFICATION NUMBER.— “(A) IN GENERAL.—For purposes of paragraph (1), the term ‘valid identification number’ means a social security number (as such term is defined in section 24(h)(7)).
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ii. Issuing a Preliminary and Permanent Injunction amending the CARES Act as identified above and enjoining Defendants from affixing any new terms to the CARES Act, or any future legislation designed to provide economic stimulus to United States citizens that excludes mixed immigration status families.
d. A determination that the Exclusion Provision, as enacted by Section 2101 of the CARES Act, is unconstitutional and should not be enforced;
e. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting Sec. 6428(g), is subject to strict scrutiny;
f. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting Sec. 6428(g), as applied to the Plaintiff, violates the constitutional and statutory rights of Plaintiff;
g. Issue a declaratory judgment striking from the CARES Act those provisions that are violative of the protections afforded to Plaintiff and those similarly situated under the United States Constitution, federal statutes, and those cases interpreting the same under which this Court is bound under the principles of stare decisis;
h. Enter an Order requiring the Defendants to hold in escrow or otherwise earmark sufficient funds for the issuance of Stimulus Checks to members of the Class;
i. For an award of attorneys’ fees and costs; and j. Such other and further relief as this court may deem just and proper.
JURY DEMAND Plaintiff respectfully demands a trial by jury of all matters so triable.
DOCUMENT PRESERVATION DEMAND
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Plaintiff hereby demands that Defendants take affirmative steps to preserve all recordings, data, documents, and all other tangible things that relate to Plaintiff and the Class and the events described herein. These materials are likely very relevant to the litigation of this claim. If Defendants are aware of any third party that has possession, custody, or control of any such materials, Plaintiff demands that Defendants ensure, by whatever lawful means necessary, that such third party also take steps to preserve the materials. This demand shall not narrow the scope of any independent document preservation duties of the Defendants.
NOTICE OF LIEN AND ASSIGNMENT All rights relating to attorneys’ fees have been assigned to counsel.

Dated: May 6, 2020

Respectfully submitted,
JANE DOE, individually and on behalf of others similarly situated (collectively “Their”).
By: /s/ Thomas J. Nitschke Thomas J. Nitschke 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 tjnitschke@blaisenitschkelaw.com WI Bar No. 1023258 One of Their attorneys
BLAISE & NITSCHKE, P.C. Lana B. Nassar (IL Bar No. 6319396) * Heather L. Blaise (IL Bar No. 6298241) * Elisabeth A. Gavin (IL Bar No. 6297740) * 123 N. Wacker Drive, Suite 250 Chicago, IL 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com
KHALAF & ABUZIR, LLC
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Case: 3:20-cv-00430 Document #: 1 Filed: 05/06/20 Page 29 of 30 Vivian Khalaf (IL Bar No. 6210668) * Omar Abuzir (IL Bar No. 6257708) * 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com * Application for admission pro hac vice forthcoming
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CERTIFICATE OF SERVICE
The undersigned certifies that on the 6th day of May, 2020, he caused the foregoing instrument to be electronically filed with the Clerk of the United States District Court for the Western District of Wisconsin using the CM/ECF system.

Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 tjnitschke@blaisenitschkelaw.com Bar No. 1023258

/s/ Thomas J. Nitschke Thomas J. Nitschke

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