United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-02531

Doe v. Trump et al Assigned to: Honorable Sharon Johnson Coleman Cause: 42:1983 Civil Rights Act

Date Filed: 04/24/2020 Date Terminated: 01/19/2021 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
John Doe TERMINATED: 12/14/2020

represented by Elisabeth Anne Gavin Blaise & Nitschke, P.c. 123 N. Wacker Drive Ste 250 Chicago, IL 60606 (312) 448-6602 Email: lisag@blaisenitschkelaw.com ATTORNEY TO BE NOTICED

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 ATTORNEY TO BE NOTICED

Heather Lea Blaise 123 N. Wacker Dr. Suite 250 Chicago, IL 60606 312-448-6602 Email: hblaise@blaisenitschkelaw.com ATTORNEY TO BE NOTICED

Omar A Abuzir Khalaf & Abuzir, LLC 10003 S. Roberts Road Palos Hills, IL 60465 (708)233-1122 Email: oabuzir@immigrationjd.com

V.
Defendant
Donald J Trump TERMINATED: 12/14/2020

ATTORNEY TO BE NOTICED
Thomas John Nitschke Blaise & Nitschke, P.C. 123 N Wacker Dr, Ste 250 Chicago, IL 60606 (312) 448-6602 Email: tjnitschke@blaisenitschkelaw.com ATTORNEY TO BE NOTICED
Vivian R. Khalaf Khalaf & Abuzir, LLC 10003 S Roberts Road Palos Hills, IL 60465 (708) 233-1122 Email: vkhalaf@immigrationjd.com ATTORNEY TO BE NOTICED
Lana B Nassar Blaise & Nitschke, P.C. 123 N. Wacker Drive Suite 250 Chicago, IL 60606 (312) 448-6602 Email: lnassar@blaisenitschkelaw.com ATTORNEY TO BE NOTICED
represented by Jordan Andrew Konig U.s. Department Of Justice, Tax Division P.o. Box 55 Washington, DC 20044 (202) 305-7917 Email: jordan.a.konig@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher James Williamson United States Department of Justice Tax Division Ben Franklin Station PO Box 227 Washington, DC 20044

Defendant Mitch McConnell TERMINATED: 12/14/2020
Defendant Steven Mnuchin TERMINATED: 12/14/2020
Defendant Charles Rettig TERMINATED: 12/14/2020
Defendant U.S. Department of Treasury
Defendant

(202) 307-2250 Email: christopher.j.williamson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jordan Andrew Konig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan Andrew Konig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED
Jordan Andrew Konig (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED
Jordan Andrew Konig (See above for address) ATTORNEY TO BE NOTICED

U.S. Internal Revenue Service

represented by Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED

Jordan Andrew Konig (See above for address) ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Jordan Andrew Konig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher James Williamson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/30/2020
04/24/2020 04/24/2020 04/24/2020 04/24/2020 04/24/2020

# Docket Text

7 ORDER: Second Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance. Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice (rc, ) (Entered: 04/24/2020)

COMPLAINT Class Action Complaint filed by John Doe; Jury

1

Demand. Filing fee $ 400, receipt number 0752-16953658.(Nassar,

Lana) (Entered: 04/24/2020)

2 CIVIL Cover Sheet (Nassar, Lana) (Entered: 04/24/2020)

CASE ASSIGNED to the Honorable Sharon Johnson Coleman. Designated as Magistrate Judge the Honorable Jeffrey Cole. Case assignment: Random assignment. (acm, ) (Entered: 04/24/2020)

3 ATTORNEY Appearance for Plaintiff John Doe by Lana B Nassar (Nassar, Lana) (Entered: 04/24/2020)

4 ATTORNEY Appearance for Plaintiff John Doe by Heather Lea Blaise (Blaise, Heather) (Entered: 04/24/2020)

04/24/2020

5 ATTORNEY Appearance for Plaintiff John Doe by Thomas John Nitschke (Nitschke, Thomas) (Entered: 04/24/2020)

04/24/2020

6 ATTORNEY Appearance for Plaintiff John Doe by Omar A Abuzir (Abuzir, Omar) (Entered: 04/24/2020)

04/24/2020

8 ATTORNEY Appearance for Plaintiff John Doe by Elisabeth Anne Gavin (Gavin, Elisabeth) (Entered: 04/24/2020)

04/24/2020

9 ATTORNEY Appearance for Plaintiff John Doe by Vivian R. Khalaf (Khalaf, Vivian) (Entered: 04/24/2020)

04/24/2020

10 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket10, ) (Entered: 04/27/2020)

04/27/2020 11

First AMENDED complaint by John Doe against All Defendants (Nassar, Lana) (Entered: 04/27/2020)

04/29/2020

SUMMONS Issued as to Defendants Mitch McConnell, Steven Mnuchin, Donald J Trump. (ng, ) (Entered: 04/29/2020)

04/30/2020

12 SUMMONS Returned Executed by John Doe as to All Defendants (Nassar, Lana) (Entered: 04/30/2020)

04/30/2020

13 MOTION by Plaintiff John Doe for temporary restraining order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit Group C, # 4 Exhibit D)(Nassar, Lana) (Entered: 04/30/2020)

04/30/2020

14 MOTION by Plaintiff John Doe to expedite Plaintiff's Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and/or Declaratory Judgment (Nassar, Lana) (Entered: 04/30/2020)

04/30/2020

15 MOTION by Plaintiff John Doe for leave to file excess pages (Nassar, Lana) (Entered: 04/30/2020)

05/01/2020

16 ATTORNEY Appearance for Defendants Mitch McConnell, Steven Mnuchin, Donald J Trump by Jordan Andrew Konig (Konig, Jordan) (Entered: 05/01/2020)

05/01/2020

17 ORDER Signed by the Honorable Robert M. Dow, Jr. on 5/1/2020. This matter is before Judge Dow as emergency judge. Plaintiffs in

05/01/2020 05/01/2020

this case filed their original complaint 1 on April 24, 2020. A
few days later, Plaintiffs filed an amended complaint 11 . Shortly before midnight last night, Plaintiffs filed three motions: (1) a motion for temporary restraining order 13 , (2) a motion to expedite 14 , and (3) a motion for leave to file excess pages 15 . The motion for leave to file excess pages 15 is granted and Plaintiffs' 35page brief is accepted instanter. The motion to expedite 14 is also granted. The motion for TRO 13 is taken under advisement. Based on the Court's initial review of the motions and supporting memorandum, it is clear that expedited briefing should be ordered. However, as Plaintiffs point out [see 15, at 2], their case involves high level of "complexity" and requires the presentation of a "vast amount of information and arguments" in oversized briefing, all of which requires adequate time and space to present cogently for the Court's consideration. In other words, while the motion will receive expedited treatment, the briefing schedule should not be so compressed as to compromise quality of the parties' presentations, particularly since the CARES Act was signed into law on March 27 [see 13, at 4] and the TRO motion was not brought until April 30. To facilitate the setting of a briefing schedule, the Court directs counsel to confer and to file on the docket by 5:00 p.m. today a joint status report indicating whether they have agreed on a schedule for the filing of response and reply briefs, taking into account the Court's views as expressed above. If no agreement is reached, the Court will set a briefing schedule in a forthcoming order. Given that the CARES Act is fixed at this time (though always subject to amendment by Congress, of course) and that the proposed class is clearly defined in the complaint and opening brief, the Court's present impression is that a hearing will not be needed at least until after response and reply briefs are filed and reviewed by the Court. However, the Court reserves the right to set this matter for an evidentiary hearing and/or oral argument after it reviews the full briefing. Mailed notice(cdh, ) (Entered: 05/01/2020)
18 STATUS Report [Joint] by John Doe (Nassar, Lana) (Entered: 05/01/2020)
19 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' joint status report 18 , the Court orders as follows: (1) Plaintiff is given leave to file a second amended complaint per the parties' stipulation; (2) Defendants are given until 5/18/2020 to file a response brief of up to 35 pages in length; (3) Plaintiff is given until 5/29/2000 to file a reply brief of up to 35 pages in length, although Plaintiff may file the reply earlier if

05/02/2020 05/06/2020
05/18/2020 05/19/2020 05/26/2020
05/27/2020 05/29/2020 06/18/2020 06/18/2020

Plaintiff wishes to do so. The Court will either issue a ruling by mail or set the matter for hearing after reviewing the briefs and exhibits. Mailed notice (cdh, ) (Entered: 05/01/2020)
20 Second AMENDED complaint by John Doe against All Defendants (Nassar, Lana) (Entered: 05/02/2020)
21 ATTORNEY Appearance for Defendants Mitch McConnell, Steven Mnuchin, Charles Rettig, Donald J Trump, U.S. Department of Treasury, U.S. Internal Revenue Service, United States of America by Christopher James Williamson (Williamson, Christopher) (Entered: 05/06/2020)
22 MEMORANDUM by United States of America in Opposition to motion for temporary restraining order 13 (Konig, Jordan) (Entered: 05/18/2020)
SUMMONS Issued as to Defendants Charles Rettig, U.S. Department of Treasury, U.S. Internal Revenue Service. (ng, ) (Entered: 05/19/2020)
23 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For nonemergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket11, ) (Entered: 05/26/2020)
24 ATTORNEY Appearance for Plaintiff John Doe by Guinevere Marie Moore (Moore, Guinevere) (Entered: 05/27/2020)
25 REPLY by Plaintiff John Doe to motion for temporary restraining order 13 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Nassar, Lana) (Entered: 05/29/2020)
26 SUMMONS Returned Executed by John Doe as to Donald J Trump served on 5/8/2020, answer due 7/7/2020 (Nassar, Lana) (Entered: 06/18/2020)
27 SUMMONS Returned Executed by John Doe as to Mitch McConnell served on 5/11/2020, answer due 7/10/2020 (Nassar, Lana) (Entered: 06/18/2020)

06/18/2020 06/18/2020 06/18/2020 06/18/2020 06/18/2020 06/18/2020 06/18/2020 06/23/2020 06/23/2020 06/23/2020
06/29/2020

28 SUMMONS Returned Executed by John Doe as to Steven Mnuchin served on 5/12/2020, answer due 7/13/2020 (Nassar, Lana) (Entered: 06/18/2020)
29 SUMMONS Returned Executed by John Doe as to Charles Rettig served on 5/29/2020, answer due 7/28/2020 (Nassar, Lana) (Entered: 06/18/2020)
30 SUMMONS Returned Executed by John Doe as to Charles Rettig served on 6/1/2020, answer due 7/31/2020 (Nassar, Lana) (Entered: 06/18/2020)
31 SUMMONS Returned Executed by John Doe as to U.S. Department of Treasury served on 5/29/2020, answer due 7/28/2020 (Nassar, Lana) (Entered: 06/18/2020)
32 SUMMONS Returned Executed by John Doe as to U.S. Department of Treasury served on 6/1/2020, answer due 7/31/2020 (Nassar, Lana) (Entered: 06/18/2020)
33 SUMMONS Returned Executed by John Doe as to U.S. Internal Revenue Service served on 5/29/2020, answer due 7/28/2020 (Nassar, Lana) (Entered: 06/18/2020)
34 SUMMONS Returned Executed by John Doe as to U.S. Internal Revenue Service served on 6/1/2020, answer due 7/31/2020 (Nassar, Lana) (Entered: 06/18/2020)
35 Notice of Supplemental Authority by John Doe (Attachments: # 1 Exhibit A)(Nassar, Lana) (Entered: 06/23/2020)
36 MOTION by Plaintiff John DoeMotion to Proceed Under a Pseudonym (Nassar, Lana) (Entered: 06/23/2020)
37 NOTICE of Motion by Lana B Nassar for presentment of motion for miscellaneous relief 36 before Honorable Sharon Johnson Coleman on 6/30/2020 at 08:45 AM. (Nassar, Lana) (Entered: 06/23/2020)
38 MINUTE entry before the Honorable Sharon Johnson Coleman: The presentment of plaintiff's motion to proceed under a pseudonym 36 set for 6/30/2020 at 8:45 AM is reset to 9:45 AM (NOTE TIME CHANGE ONLY) and is converted to a telephonic motion hearing. The call-in number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against

photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 06/29/2020)

06/29/2020 39

MEMORANDUM by United States of America in Opposition to motion for miscellaneous relief 36 (Konig, Jordan) (Entered: 06/29/2020)

06/30/2020

40 MINUTE entry before the Honorable Sharon Johnson Coleman: Telephonic motion hearing held on 6/30/2020. After hearing brief oral arguments on plaintiff's motion to proceed under a pseudonym 36 , the Court takes the matter under advisement. Plaintiff's motion for temporary restraining order 13 is fully briefed, the Court shall take the matter under advisement. A status hearing will be set once the Court rules on the motion for temporary restraining order. Mailed notice. (ym, ) (Entered: 06/30/2020)

07/01/2020

41 MINUTE entry before the Honorable Sharon Johnson Coleman: The Court clarifies minute entry 40 . Plaintiff's motion for temporary restraining order 13 is fully briefed and will be ruled on by Judge Dow as stated in the minute entry entered on 5/1/2020 19 . Mailed notice. (ym, ) (Entered: 07/01/2020)

07/01/2020 42

ORDER: The Court, in its discretion, denies plaintiff's motion to proceed under a pseudonym 36 . Signed by the Honorable Sharon Johnson Coleman on 7/1/2020. Mailed notice. (ym, ) (Entered: 07/01/2020)

07/07/2020

43 TRANSCRIPT OF PROCEEDINGS held on 6/30/2020 before the Honorable Sharon Johnson Coleman. Order Number: 38735. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312435-5570, tracey_mccullough@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 7/28/2020. Redacted Transcript Deadline set for 8/7/2020. Release of Transcript Restriction set for 10/5/2020. (Mccullough, Tracey) (Entered: 07/07/2020)

07/07/2020 07/07/2020 07/07/2020 07/08/2020 07/08/2020 07/10/2020
08/04/2020 08/04/2020 08/04/2020

44 MOTION by Defendants Steven Mnuchin, Charles Rettig, U.S. Department of Treasury, Mitch McConnell, U.S. Internal Revenue Service, Donald J Trump to dismiss (Konig, Jordan) (Entered: 07/07/2020)
45 MEMORANDUM by Mitch McConnell, Steven Mnuchin, Charles Rettig, Donald J Trump, U.S. Department of Treasury, U.S. Internal Revenue Service in support of motion to dismiss 44 (Konig, Jordan) (Entered: 07/07/2020)
46 NOTICE of Motion by Jordan Andrew Konig for presentment of motion to dismiss 44 before Honorable Sharon Johnson Coleman on 7/14/2020 at 08:45 AM. (Konig, Jordan) (Entered: 07/07/2020)
47 Notice of Supplemental Authority by United States of America (Attachments: # 1 Exhibit A - Order Denying Plaintiff's Motion for a Temporary Restraining Order)(Konig, Jordan) (Entered: 07/08/2020)
48 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiff to file a response to defendants' motion to dismiss 44 by 8/4/2020. Defendants' reply to be filed by 8/11/2020. No appearance necessary on 7/14/2020. Mailed notice. (ym, ) (Entered: 07/08/2020)
49 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk9, Docket) (Entered: 07/10/2020)
50 MOTION by Defendant United States of America to dismiss (Konig, Jordan) (Entered: 08/04/2020)
51 NOTICE of Motion by Jordan Andrew Konig for presentment of motion to dismiss 50 before Honorable Sharon Johnson Coleman on 8/11/2020 at 08:45 AM. (Konig, Jordan) (Entered: 08/04/2020)
52 RESPONSE by John Doein Opposition to MOTION by Defendants Steven Mnuchin, Charles Rettig, U.S. Department of Treasury, Mitch McConnell, U.S. Internal Revenue Service, Donald J Trump to dismiss 44 (Attachments: # 1 Exhibit A)(Gavin, Elisabeth) (Entered: 08/04/2020)

08/06/2020 08/10/2020
08/11/2020 08/11/2020 08/11/2020

53 Notice of Supplemental Authority by John Doe (Attachments: # 1 Exhibit A)(Nassar, Lana) (Entered: 08/06/2020)
54 MINUTE entry before the Honorable Sharon Johnson Coleman: Presentment of defendant United States of America's motion to dismiss 50 set for 8/11/2020 at 8:45 AM is reset to 10:15 AM (NOTE TIME CHANGE ONLY) and converted to a telephonic motion hearing. The call-in number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 08/10/2020)
55 REPLY by Mitch McConnell, Steven Mnuchin, Charles Rettig, Donald J Trump, U.S. Department of Treasury, U.S. Internal Revenue Service to response in opposition to motion, 52 (Konig, Jordan) (Entered: 08/11/2020)
SUMMONS Issued as to United States of America and U.S. Attorney (mp, ) (Entered: 08/11/2020)
56 MINUTE entry before the Honorable Sharon Johnson Coleman: Telephonic motion hearing held on 8/11/2020. Oral motion by plaintiff to have summons issued instanter as to defendant United States of America is granted without objections. Defendant United States of America's motion to dismiss 50 is stricken as moot. Defendants Steven Mnuchin, Charles Rettig, U.S. Department of Treasury, Mitch McConnell, U.S. Internal Revenue Service, Donald J Trump's motion to dismiss 44 is fully briefed, the Court shall take it under advisement. Telephonic status hearing is set for 9/25/2020 at 9:30 AM. The call-in number is (877)336-1829 and the access code is 5205245. Members of the public and media will be able to call in to listen to this hearing. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (ym, ) (Entered: 08/11/2020)

08/14/2020

57 SUMMONS Returned Executed by John Doe as to United States of America served on 8/12/2020, answer due 10/13/2020 (Nassar, Lana) (Entered: 08/14/2020)

09/23/2020

58 MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing set for 9/25/2020 is stricken. Mailed notice. (ym, ) (Entered: 09/23/2020)

10/06/2020

59 MOTION by Defendant United States of America for leave to file excess pages (Konig, Jordan) (Entered: 10/06/2020)

10/06/2020

60 MINUTE entry before the Honorable Sharon Johnson Coleman: Defendant United States of America's unopposed motion to exceed page limit 59 is granted. Mailed notice. (ym, ) (Entered: 10/06/2020)

10/09/2020 61

MOTION by Defendant United States of America to dismiss for lack of jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant United States of America (Konig, Jordan) (Entered: 10/09/2020)

10/09/2020

62 MEMORANDUM by United States of America in support of motion to dismiss/lack of jurisdiction, Motion to Dismiss for Failure

to State a Claim 61 (Attachments: # 1 Amador v. Mnuchin, # 2 Black Bear Sports Grp. v. Amateur Hockey Ass'n of Ill., # 3 Brest v. Lewis, # 4 CRS Report RS21732, # 5 CRS Report R43840, # 6 CRS Report R46339, # 7 Doe v. Trump (Order Denying TRO), # 8 Doe v. Trump (Order Granting Motion to Dismiss), # 9 EIP Q2 and Q7, # 10 Fatani v. IRS, # 11 Goldberg v. United States, # 12 Hall v. United States, # 13 Hoelscher v. United States, # 14 IRS Pub. 519, # 15 Irs.gov ITIN Description, # 16 Lee v. Orr, # 17 Petit v. IRS, # 18 Scholl v. Mnuchin, # 19 Turner v. Hawkins, # 20 Villars v. Kubiatowski)(Konig, Jordan) (Entered: 10/09/2020)

10/14/2020

63 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiff to file a response to defendant United States of America's

motion to dismiss 61 by 11/12/2020. Defendant's reply to be filed by 11/27/2020. Once the motion is fully briefed, the Court shall take it under advisement. Mailed notice. (ym, ) (Entered: 10/14/2020)

10/23/2020

64 MOTION by Plaintiff John Doe for leave to file excess pages (Nassar, Lana) (Entered: 10/23/2020)

10/26/2020

65 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiff's unopposed motion to exceed page limit 64 is granted. Mailed notice. (ym, ) (Entered: 10/26/2020)

11/12/2020 66

MEMORANDUM by John Doe in Opposition to motion to dismiss/lack of jurisdiction, Motion to Dismiss for Failure to State a

Claim 61 (Attachments: # 1 (Entered: 11/12/2020)

Exhibit A)(Nassar, Lana)

11/18/2020

67 MOTION by Defendant United States of America for extension of time to file response/reply as to set motion and R&R deadlines/hearings, 63 (Konig, Jordan) (Entered: 11/18/2020)

11/18/2020

68 MINUTE entry before the Honorable Sharon Johnson Coleman: Defendant United States of America's motion to extend reply

deadline 67 is granted. Reply to the motion to dismiss 61 to be filed on or before 12/4/2020. Once the matter is fully briefed, the Court shall take it under advisement. Mailed notice. (ym, ) (Entered: 11/18/2020)

12/04/2020

69 REPLY by United States of America to memorandum in opposition

to motion 66 (Konig, Jordan) (Entered: 12/04/2020)

12/14/2020 70

MEMORANDUM Opinion and Order: The Court grants in part and denies in part the United States' motion to dismiss 44 . The Court dismisses the individual defendants from this lawsuit. The remaining defendants include the United States, the Internal Revenue Service, and the U.S. Department of Treasury. Signed by the Honorable Sharon Johnson Coleman on 12/14/2020. Mailed notice. (ym, ) (Entered: 12/14/2020)

01/19/2021 71

MOTION by Plaintiff John Doe to dismiss for lack of jurisdiction (Nassar, Lana) (Entered: 01/19/2021)

01/19/2021

72 MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiff's unopposed motion to dismiss for lack of subject matter

jurisdiction 71 is granted. Plaintiff's motion for temporary restraining order 13 and defendant United States of America's

motion to dismiss 61 are stricken as moot. Civil case terminated. Mailed notice. (ym, ) (Entered: 01/19/2021)

02/18/2021 02/19/2021 02/26/2021 02/26/2021

73 MOTION by Plaintiff John Doe for attorney fees pursuant to the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412(d) (Attachments: # 1 Exhibit Group Exhibit 1, # 2 Exhibit Group Exhibit 2)(Nassar, Lana) (Entered: 02/18/2021)
74 MINUTE entry before the Honorable Sharon Johnson Coleman: Defendants to file a response to plaintiff's application for E.A.J.A. fees and costs 73 by 3/19/2021. Plaintiff to file a reply by 4/2/2021. Once the matter is fully briefed, the Court shall take it under advisement. Mailed notice. (ym, ) (Entered: 02/19/2021)
75 MOTION by Defendant United States of America to strike MOTION by Plaintiff John Doe for attorney fees pursuant to the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412(d) 73 , MOTION by Defendant United States of America to vacate Scheduling Order Issued February 19, 2021 74 (Konig, Jordan) (Entered: 02/26/2021)
76 MINUTE entry before the Honorable Sharon Johnson Coleman: Because plaintiff did not comply with Northern District of Illinois Local Rule 54.3, the Court grants defendants' motion to strike 75 plaintiff's application for EAJA fees and costs and the attendant briefing schedule 73 . Once plaintiff complies with Local Rule 54.3, he may file a renewed motion for EAJA fees and costs. Mailed notice. (ym, ) (Entered: 02/26/2021)

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 Case: 1:20-cv-02531 Document #: 1 Filed: 04/24/20 Page 1 of 16 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN DOE, individually and

)

on behalf of others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, in his official capacity as )

President of the United States;

)

MITCH MCCONNELL, in his official capacity )

as a Senator and Sponsor of S. 3548 CARES Act )

(the “CARES Act”); and STEVEN MNUCHIN, in )

his official capacity as the Acting Secretary of )

the U.S. Department of Treasury

)

)

Defendants.

)

Case No. JURY DEMANDED

CLASS ACTION COMPLAINT

NOW COMES Plaintiff, John Doe, (hereinafter “Doe” or “Plaintiff”), individually and on

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

Abuzir, LLC, and submits his class action complaint against DONALD J. TRUMP, in his official

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

United States Senator and the Sponsor of S. 3548 CARES Act; and STEVEN MNUCHIN, in his

official capacity as the Acting Secretary of the U.S. Department of Treasury (hereinafter

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

NATURE OF THE CASE

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

1

Case: 1:20-cv-02531 Document #: 1 Filed: 04/24/20 Page 2 of 16 PageID #:2
(hereinafter “CARES Act”), both enactment and enforcement of which evidence the discriminatory purpose and intent of said Act.
PARTIES 1. Plaintiff John Doe is a U.S. citizen who at all times mentioned in this Complaint resided in the Northern District of Illinois. 2. That “John Doe” is not Plaintiff’s actual name, but rather is a fictitious name for an actual person as herein described, in order to protect his actual identity, which is protected under the 5th Amendment and the facts alleged herein. 3. Defendant, DONALD J. TRUMP, in his official capacity as President of the United States, is the President of the United States who signed into law the S. 3548-Coronavirus Aid, Relief, and Economic Security Act (hereinafter “CARES Act) on March 27, 2020. 4. Defendant, MITCH MCCONNELL, in his official capacity as United States Senator, is the Sponsor of the S. 3548-CARES Act, introduced in the Senate on March 19, 2020 and signed into law on March 27, 2020. 5. Defendant, STEVEN MNUCHIN, is the Acting Secretary of the U.S. Department of Treasury. 6. That Defendants are each sued in their official capacities and not in their individual capacities, and are the three persons and/or offices most responsible for the conduct alleged herein. 7. 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.
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JURISDICTION AND VENUE 8. This Court has Federal Question Jurisdiction pursuant to 28 U.S.C. § 1331 because the case arises under the Constitution, laws, or treaties of the United States. 9. Venue is appropriate in the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. §1391(b) because a substantial part of the events giving rise to the claims alleged herein occurred in this judicial district. 10. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1367, which gives the district court supplemental jurisdiction over state law claims.
STATEMENT OF FACTS 11. 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 § 6428.2020 of the CARES Act (“Recovery Rebates For Individuals”). 12. The CARES Act was introduced in the United States Senate (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). 13. 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). 14. The CARES Act is to provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic (“COVID-19”). S. 3548, 116th Cong. (2020). 15. Sec. 6428 of the CARES Act authorizes the Internal Revenue Service to disburse $1,200.00 to Americans earning up to $75,000.00 in adjusted gross income who have a Social
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Security number, and an additional $500.00 for each child under the age of 17 (hereinafter “the Stimulus Check”). S. 3548, 116th Cong. § 6428 (2020).
16. 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).
17. 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, 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/2020-04-20/u-scitizens-coronavirus-stimulus-checks-spouses-immigrant (last visited April 24, 2020).
18. 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 April 24, 2020).
19. 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 benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise qualify. “It’s a deliberately cruel carve-
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out,” said Manar Waheed, senior legislative and advocacy counsel with the American Civil Liberties Union. Jarvie, supra.
20. Putative class 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 he files his taxes jointly with his spouse, an immigrant who does not have a Social Security number.
21. Plaintiff Doe is married to an immigrant who pays taxes and files tax returns with an Individual Taxpayer Identification Number. The couple file joint tax returns and neither are in the military.
22. Had Plaintiff not been married to an immigrant, Plaintiff and his children would have otherwise qualified for a Stimulus Check.
CLASS ACTION ALLEGATIONS 23. Plaintiff brings this claim individually and on behalf of the following putative classes:
All United States Citizens married to immigrants that file joint taxes wherein the immigrant-spouses file tax returns using an Individual Taxpayer Identification Number whom would have otherwise qualified for the Stimulus Check. 24. The Class (“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. 25. There are more than 1.2 million Americans that are married to immigrants who lack Social Security numbers. 26. 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.
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27. Class Members can be identified through Defendants’ records. 28. 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. 29. 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 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 immunities secured by the Constitution of the United States;
d. Whether Class members are entitled to actual damages, statutory damages, and/or punitive damages as a result of Defendants’ wrongful conduct;
e. Whether Class members are entitled to restitution as a result of Defendants’ wrongful conduct;
f. Whether Class Members are entitled to injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act; and
g. Whether or not Class Members are entitled to Declaratory Judgment relating to their classification and exclusion, among others, under the CARES Act.
30. Plaintiff will fairly and adequately represent the Class Members. Plaintiff has no
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interests that conflict with the interests of Class Members. Plaintiff has retained counsel experienced in handling civil rights cases and class actions. Neither Plaintiff nor his or her counsel has any interests that might cause them not to pursue these claims vigorously.
31. 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.
COUNT I (42 U.S.C. § 1983)-United States Constitution
(On Behalf of Plaintiff and the Class) 32. Plaintiff re-alleges and incorporates paragraphs 1-31 of this Complaint as though fully set forth herein. 33. The Defendants, in their official capacities as President of the United States, Senator and Sponsor of the CARES Act in the United States, and Acting Secretary of the U.S. Department of Treasury, violated Plaintiff’s procedural and substantive due process rights and deprived Plaintiff of his rights, privileges, and immunities secured by the Constitution of the United States. 34. The Defendants have engaged and continue to engage in behavior that violates Plaintiff’s constitutional property interest rights individually and as a taxpayer in the United States and have thereby irreparably injured Plaintiff. 35. Defendants, acting under color of law, have violated rights secured to Plaintiff by the First, Fifth, and Fourteenth Amendments to the United States Constitution including the right of association, the right to due process of law, and the right to equal protection under the law. Specifically, Defendants have failed, as applied to Plaintiff, to treat him as equal to his fellow
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United States citizens based solely on whom he chose to marry. 36. Plaintiff has lawfully filed taxes in the United States, yet he is being denied the
rights and privileges under the CARES Act. 37. Similarly situated U.S. citizens who are not married to immigrants and who filed
joint tax returns have not been denied such rights and privileges under the “CARES” Act. 38. Plaintiff brings this action against Defendants in their official capacities for
purposes of seeking declaratory and injunctive relief and challenges the practices and policies of discrimination both facially and as applied to him and the putative Class.
39. 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.
40. 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.
Marriage as a Fundamental Right 41. 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). 42. Discrimination based on the fundamental right to marry is presumptively unconstitutional and subject to strict scrutiny.
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43. Defendants discriminate against Plaintiff on the basis of their fundamental right of marriage.
44. The CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the Due Process Clause of the Fifth Amendment.
45. 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.
46. The Defendants treat Plaintiff differently than U.S. Citizens who file jointly with other U.S. Citizens, who are similarly situated.
47. The CARES Act singles out law-abiding and tax-paying U.S. Citizens by excluding them from 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.
48. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
49. Accordingly, the CARES Act provision at issue violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
Alienage as a Suspect Class 50. “[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). 51. Discrimination based on the alienage of a U.S. citizen’s spouse is presumptively unconstitutional and subject to strict scrutiny.
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52. Defendants discriminate against Plaintiff on the basis of the alienage of their spouse.
53. The CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the Due Process Clause of the Fifth Amendment.
54. 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.
55. The Defendants treat Plaintiff differently than U.S. Citizens who marry other U.S. Citizens, who are similarly situated.
56. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
57. Accordingly, the CARES Act provision at issue violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
COUNT II Action for Temporary Restraining Order (“TRO”); Preliminary and Permanent Injunction; and Declaratory Relief Against All Defendants
(On Behalf of Plaintiff and the Class) 58. Plaintiff re-alleges and incorporates paragraphs 1-57 of this Complaint as though fully set forth herein. 59. 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
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b. Issue a declaratory judgment that the CARES Act provision at issue in this case, as applied to Plaintiff and the putative class, violates the constitutional and statutory rights of Plaintiff and denies Plaintiff the privileges and immunities to which he would otherwise be entitled.
60. Plaintiff has no adequate remedy at law and is suffering irreparable harm. There is no harm to the Defendants by this Court granting an injunction prohibiting enforcement of the challenged CARES Act provision. 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.
61. 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.
62. 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 reputation in the community and dignity.
63. 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.
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64. Entering the injunctive relief that Plaintiff is seeking will cause the Defendants no harm.
65. 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.
66. There is a reasonable likelihood that the Plaintiff will succeed on the merits of his claims.
COUNT III Intentional Infliction of Emotional Distress
(On Behalf of Plaintiff and the Class) 67. Plaintiff re-alleges and incorporates paragraphs 1-66 of this Complaint as though fully set forth herein. 68. Defendants have intentionally and/or recklessly carved out Plaintiff from the definition of persons eligible to receive the Stimulus Check during a global pandemic wherein unemployment is at its highest rate in the history of the United States. 69. Defendants have intentionally and/or recklessly punished certain United States citizens and their children from receiving the Stimulus Check for the sole reason of who they chose to marry. 70. Defendants are aware that Plaintiff, and those similarly situated to Plaintiff, are financially struggling due to the pandemic facing the entire nation, yet intentionally and/or recklessly have forbidden that Plaintiff receive aid. We Need to Finish Up These Negotiations and Move Forward, MCCONNELL.SENATE.GOV (March 21, 2020) https://www.mcconnell. senate.gov/public/index.cfm/2020/3/we-need-to-finish-up-these-negotiations-and-move-forward (last visited April 24, 2020).
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71. As a direct and proximate result of the extreme and outrageous intentional and/or reckless behaviors as referenced throughout this Complaint of the Defendants, Plaintiff has suffered substantial mental pain and suffering and severe emotional distress and injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiff JOHN DOE, individually and on behalf of the proposed Class, by and through his attorneys, Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC, prays for relief as follows:
a. For an Order certifying this action as a class action and appointing Plaintiff and his Counsel to represent the Class;
b. 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;
c. Issue a declaratory judgment that the CARES Act provision at issue in this case is subject to strict scrutiny;
d. Issue a declaratory judgment that the CARES Act provision at issue in this case, as applied to the Plaintiff, violate the constitutional and statutory rights of Plaintiff;
e. 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;
f. For an award of damages, in an amount to be determined;
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g. For an award of attorneys’ fees and costs; and

h. 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

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 putative

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 request 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: April 24, 2020

Respectfully submitted, John Doe, individually and on behalf of others similarly situated (collectively “Their”).

By: /s/ Lana B. Nassar Lana B. Nassar One of Their attorneys

By: /s/ Vivian Khalaf Vivian Khalaf One of Their attorneys

By: /s/ Heather L. Blaise Heather L. Blaise One of Their attorneys

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Lana B. Nassar, 6319396 Vivian Khalaf, 6210668 Heather L. Blaise, 6298241 Elisabeth A. Gavin, 6297740 Omar Abuzir, 6257708 Thomas J. Nitschke, 6225740

By: /s/ Elisabeth A. Gavin Elisabeth A. Gavin One of Their attorneys
By: /s/ Omar Abuzir Omar Abuzir One of Their attorneys
By: /s/ Thomas J. Nitschke Thomas J. Nitschke One of Their attorneys
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com
Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com

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CERTIFICATE OF SERVICE
The undersigned certifies that on the 24th day of April, 2020, she caused the foregoing instrument to be electronically filed with the Clerk of the United States District Court for the Northern District of Illinois 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 lnassar@blaisenitschkelaw.com ARDC No. 6319396

/s/ Lana B. Nassar Lana B. Nassar

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 Case: 1:20-cv-02531 Document #: 11 Filed: 04/27/20 Page 1 of 18 PageID #:45

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

FIRST AMENDED CLASS ACTION COMPLAINT

NOW COMES Plaintiff, John Doe, (hereinafter “Doe” or “Plaintiff”), individually and on

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

Abuzir, LLC, and submits his first amended 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; and STEVEN MNUCHIN, in his individual and official capacity as the

Acting Secretary of the U.S. Department of Treasury (hereinafter collectively referred to as

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

NATURE OF THE CASE

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

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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.
PARTIES 1. Plaintiff John Doe is a U.S. citizen who at all times mentioned in this Complaint resided in the Northern District of Illinois. 2. That “John Doe” is not Plaintiff’s actual name, but rather is a fictitious name for an actual person as herein described, in order to protect his actual identity, which is protected under the 5th Amendment and the facts alleged herein. 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 into law the S. 3548-Coronavirus Aid, Relief, and Economic Security Act (hereinafter “CARES Act) on March 27, 2020. 4. Defendant, MITCH MCCONNELL, in his individual and official capacity as United States Senator, is the Sponsor of the S. 3548-CARES Act, introduced in the Senate on March 19, 2020 and signed into law on March 27, 2020. 5. Defendant, STEVEN MNUCHIN, in his individual and official capacity, is the Acting Secretary of the U.S. Department of Treasury. 6. That Defendants are each sued in their individual and official capacities and are the three persons and/or offices most responsible for the conduct alleged herein. 7. 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.
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JURISDICTION AND VENUE 8. This Court has Federal Question Jurisdiction pursuant to 28 U.S.C. § 1331 because the case arises under the Constitution, laws, or treaties of the United States. 9. Venue is appropriate in the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. §1391(b) because a substantial part of the events giving rise to the claims alleged herein occurred in this judicial district. 10. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1367, which gives the district court supplemental jurisdiction over state law claims.
STATEMENT OF FACTS 11. 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 § 6428.2020 of the CARES Act (“Recovery Rebates For Individuals”). 12. The CARES Act was introduced in the United States Senate (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). 13. 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). 14. The CARES Act is to provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic (“COVID-19”). S. 3548, 116th Cong. (2020). 15. Sec. 6428 of the CARES Act authorizes the Internal Revenue Service to disburse $1,200.00 to Americans earning up to $75,000.00 in adjusted gross income who have a Social
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Security number, and an additional $500.00 for each child under the age of 17 (hereinafter “the Stimulus Check”). S. 3548, 116th Cong. § 6428 (2020).
16. Sec. 6428 of the CARES Act authorizes the Internal Revenue Service to disburse $2,400.00 to Americans filing jointly when earning up to $150,000.00 in adjusted gross income. S. 3548, 116th Cong. § 6428 (2020).
17. The Stimulus Checks includes Defendant Trump’s signature. Defendant Mnuchin admits that the inclusion of Defendant Trump’s signature on the Stimulus Checks was Defendant Mnuchin’s idea.
18. 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).
19. 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, 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/2020-04-20/u-scitizens-coronavirus-stimulus-checks-spouses-immigrant (last visited April 24, 2020).
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20. 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 April 24, 2020).
21. 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. “It’s a deliberately cruel carve-out,” said Manar Waheed, senior legislative and advocacy counsel with the American Civil Liberties Union. Jarvie, supra.
22. Putative class 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 he files his taxes jointly with his spouse, an immigrant who does not have a Social Security number.
23. Plaintiff Doe is married to an immigrant who pays taxes and files tax returns with an Individual Taxpayer Identification Number. The couple file joint tax returns and neither are in the military.
24. Had Plaintiff not been married to an immigrant with an Individual Taxpayer Identification Number, Plaintiff and his children would have otherwise qualified for a Stimulus Check.
CLASS ACTION ALLEGATIONS 25. Plaintiff brings this claim individually and on behalf of the following putative classes:
All United States Citizens married to immigrants that file joint taxes wherein the immigrant-spouses file tax returns using an Individual
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Taxpayer Identification Number who would have otherwise qualified for the Stimulus Check. 26. The Class (“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. 27. There are more than 1.2 million Americans that are married to immigrants who lack Social Security numbers. 28. 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. 29. Class Members can be identified through Defendants’ records. 30. 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. 31. 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 immunities secured by the Constitution of the United States;
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d. Whether Class members are entitled to actual damages, statutory damages, and/or punitive damages as a result of Defendants’ wrongful conduct;
e. Whether Class Members are entitled to injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act; and
f. Whether or not Class Members are entitled to Declaratory Judgment relating to their classification and exclusion, among others, under the CARES Act.
32. Plaintiff will fairly and adequately represent the Class Members. Plaintiff has no interests that conflict with the interests of Class Members. Plaintiff has retained counsel experienced in handling civil rights cases and class actions. Neither Plaintiff nor his or her counsel has any interests that might cause them not to pursue these claims vigorously.
33. 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.
COUNT I Violation(s) of United States Constitution
(On Behalf of Plaintiff and the Class) 34. Plaintiff re-alleges and incorporates paragraphs 1-33 of this Complaint as though fully set forth herein. 35. 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, and Acting Secretary of the U.S. Department of Treasury, violated Plaintiff’s procedural and substantive due process rights and deprived Plaintiff of his rights, privileges, and immunities secured by the Constitution
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of the United States. 36. The Defendants have engaged and continue to engage in behavior that violates
Plaintiff’s constitutional property interest rights individually and as a taxpayer in the United States and have thereby irreparably injured Plaintiff.
37. Defendants, acting under color of law, have violated rights secured to Plaintiff by the First, Fifth, and Fourteenth Amendments to the United States Constitution including the right of association, 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 him as equal to his fellow United States citizens based solely on whom he chose to marry.
38. Plaintiff has lawfully filed taxes in the United States, yet he is being denied the rights and privileges under the CARES Act.
39. Similarly situated U.S. citizens who are not married to immigrants and who filed joint tax returns have not been denied such rights and privileges under the “CARES” Act.
40. Plaintiff brings this action against Defendants in their individual and official capacities for purposes of seeking declaratory and injunctive relief and challenges the practices and policies of discrimination both facially and as applied to him, individually, and as the putative Class Plaintiff.
41. 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.
42. 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
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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 State, 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 U.S. 200 (1995) (applying strict scrutiny to the federal government based on equal protection grounds).
Marriage as a Fundamental Right Emanating From Our First, Fifth, and Fourteenth Amendments
43. 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).
44. Discrimination based on the fundamental right to marry is presumptively unconstitutional and subject to strict scrutiny.
45. 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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46. 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).
47. 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.
48. 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)
49. Defendants discriminate against Plaintiff on the basis of their fundamental right of marriage.
50. 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; Due Process Clause of the Fifth Amendment; Equal Protection and Privileges and Immunities afforded under the Fourteenth Amendment under Reverse Incorporation Doctrine; and the well-established fundamental right to marry.
51. The First, Fifth, and Fourteenth Amendments all amount to well-established constitutional rights of which a reasonable person would have known was violated personally and officially by the Defendants.
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52. 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.
53. The Defendants treat Plaintiff differently than U.S. Citizens who file jointly with other U.S. Citizens, who are similarly situated.
54. The CARES Act singles out law-abiding and tax-paying U.S. Citizens by excluding them from 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.
55. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
56. Accordingly, the CARES Act provision at issue violates the First Amendment to the United States Constitution; 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.
Alienage as a Suspect Class 57. “[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). 58. Discrimination based on the alienage of a U.S. citizen’s spouse is presumptively unconstitutional and subject to strict scrutiny. 59. Defendants discriminate against Plaintiff on the basis of the alienage of their spouse.
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60. The CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the First Amendment to the United States Constitution; 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.
61. 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.
62. The Defendants treat Plaintiff differently than U.S. Citizens who marry other U.S. Citizens, who are similarly situated.
63. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
64. Accordingly, the CARES Act provision at issue violates the First Amendment of the United States Constitution; 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 Action for Temporary Restraining Order (“TRO”); Preliminary and Permanent Injunction; and Declaratory Relief Against All Defendants
(On Behalf of Plaintiff and the Class) 65. Plaintiff re-alleges and incorporates paragraphs 1-64 of this Complaint as though fully set forth herein. 66. Plaintiff seeks the entry of a temporary restraining order, preliminary and permanent injunction, and Declaratory Relief, including but not limited to the following:
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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 CARES Act provision at issue in this case, as applied to Plaintiff and the putative class, violates the constitutional and statutory rights of Plaintiff and denies Plaintiff the privileges and immunities to which he would otherwise be entitled.
67. Plaintiff has no adequate remedy at law and is suffering irreparable harm. There is no harm to the Defendants by this Court granting an injunction prohibiting enforcement of the challenged CARES Act provision. 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.
68. 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.
69. 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.
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70. 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.
71. Entering the injunctive relief that Plaintiff is seeking will cause the Defendants no harm.
72. 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.
73. There is a reasonable likelihood that the Plaintiff will succeed on the merits of his claims.
PRAYER FOR RELIEF WHEREFORE, Plaintiff JOHN DOE, individually and on behalf of the proposed Class, by and through his attorneys, Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC, prays for relief as follows: a. For an Order certifying this action as a class action and appointing Plaintiff and his
Counsel to represent the Class; b. 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, as follows;
i. Issuing a Temporary Restraining Order amending the CARES Act as follows: “(h) Identification Number Requirement.—
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“(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)). 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 stimulus to United States citizens that excludes mixed immigration status families. c. Issue a declaratory judgment that the CARES Act provision at issue in this case is subject to strict scrutiny; d. Issue a declaratory judgment that the CARES Act provision at issue in this case, as applied to the Plaintiff, violate the constitutional and statutory rights of Plaintiff; e. 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
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United States Constitution, federal statutes, and those cases interpreting the same

under which this Court is bound under the principles of stare decisis;

f. 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 putative class;

g. For an award of attorneys’ fees and costs; and

h. 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

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 putative

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 request 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: April 27, 2020

Respectfully submitted, John Doe, individually and on behalf of others similarly situated (collectively “Their”).

By: /s/ Lana B. Nassar Lana B. Nassar One of Their attorneys

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Lana B. Nassar, 6319396 Vivian Khalaf, 6210668 Heather L. Blaise, 6298241 Elisabeth A. Gavin, 6297740 Omar Abuzir, 6257708 Thomas J. Nitschke, 6225740

By: /s/ Vivian Khalaf Vivian Khalaf One of Their attorneys
By: /s/ Heather L. Blaise Heather L. Blaise One of Their attorneys
By: /s/ Elisabeth A. Gavin Elisabeth A. Gavin One of Their attorneys
By: /s/ Omar Abuzir Omar Abuzir One of Their attorneys
By: /s/ Thomas J. Nitschke Thomas J. Nitschke One of Their attorneys
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com
Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com

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CERTIFICATE OF SERVICE
The undersigned certifies that on the 27th day of April, 2020, she caused the foregoing instrument to be electronically filed with the Clerk of the United States District Court for the Northern District of Illinois 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 lnassar@blaisenitschkelaw.com ARDC No. 6319396

/s/ Lana B. Nassar Lana B. Nassar

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 Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 1 of 35 PageID #:66

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

NOW COMES Plaintiff, John Doe, (hereinafter “Doe” or “Plaintiff”), individually and on

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

Abuzir, LLC, and pursuant to Federal Rule of Civil Procedure 65 and submits his Emergency

Motion for a Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment

(“Emergency Motion”).

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TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 PROCEDURAL HISTORY............................................................................................................ 1 THE EXIGENT FACTS THAT NECESSITATE THIS MOTION ............................................... 2 LAW ............................................................................................................................................. 11 ARGUMENT ................................................................................................................................ 13
I. Plaintiff Meets His Burden for Certification of the Putative Class and is Entitled to Injunctive Relief on behalf of the Putative Class...................................................................... 13
A. Numerosity ................................................................................................................. 13 B. Commonality .............................................................................................................. 15 C. Typicality.................................................................................................................... 16 D. Adequate Representation ............................................................................................ 16 E. Rule 23(b)(2) .............................................................................................................. 17 II. Plaintiff and the Putative Class Will Be Irreparably Harmed If Interim Relief Is Not Granted...................................................................................................................................... 18 III. Plaintiffs Have a Likelihood of Success on the Merits of Their Claim That the CARES Act Provision at Issue Violates the First, Fifth, and Fourteenth Amendments. ....................... 20 IV. Traditional Legal Remedies Are Inadequate.................................................................. 24 V. The Balance of Relative Harms and the Public Interest Favors the Relief Plaintiffs Are Requesting................................................................................................................................. 25 PRAYER FOR RELIEF ............................................................................................................... 27
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TABLE OF AUTHORITIES
Cases 19 I. & N. Dec. 1, 1,
1983 BIA LEXIS 18, *1 (B.I.A. December 12, 1983) ..................................................... 19 Anderson v. U.S.F. Logistics (IMC), Inc.,
274 F.3d 470, 474-475 (7th Cir. 2001) ....................................................................... 12, 18 Beaton v. Speedy PC Software,
907 F.3d 1018, 1025 (7th Cir. 2018) .......................................................................... 13, 17 Bolling v. Sharpe,
347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954) ........................................................... 21 Bolton v. Harris,
130 U.S. App. D.C. 1, 395 F.2d 642 (1968) ..................................................................... 22 Brown v. Board of Education,
347 U.S. 483 [74 S. Ct. 686, 98 L. Ed. 873] (1954) ......................................................... 23 Budget Rent A Car Corp. v. Harvey Kidd Automotive,
249 F. Supp. 2d 1048, 1049 (N.D. Ill. 2003) .................................................................... 12 Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi.,
797 F.3d 426, 442 (7th Cir. 2015) .................................................................................... 17 Cooper v. Salazar,
196 F.3d 809, 813 (7th Cir. 1999) .................................................................................... 20 Davis v. Richardson,
342 F. Supp. 588, 591 (D. Conn. 1972)............................................................................ 21 Flemming v. Nestor,
363 U.S. 603, 611, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) ............................................ 22 Foodcomm Int'l v. Barry,
328 F.3d 300, 304 (7th Cir. 2003) .................................................................................... 24 Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc.,
549 F.3d 1079, 1085–86 (7th Cir. 2008) .................................................................... 11, 18 Gooch v. Life Inv'rs Ins. Co. of Am.,
672 F.3d 402, 433 (6th Cir. 2012) .................................................................................... 13 Graham v. Richardson,
403 U.S. 365, 372 (1971).................................................................................................. 21 Griffin v. Richardson,
346 F. Supp. 1226 (D. Md. 1972) ............................................................................... 21, 23 Harder v. Vill. of Forest Park,
2005 U.S. Dist. LEXIS 28068, ¶ 4-5 .......................................................................... 12, 18 Harper v. Virginia [State] Board of Elections,
383 U.S. 663 [86 S. Ct. 1079, 16 L. Ed. 2d 169] (1966) .................................................. 23 Howe v. Varity Corp.,
896 F.2d 1107, 1112 (8th Cir. 1990) ................................................................................ 13 Lacy v. Cook County,
897 F.3d 847, 866 (7th Cir. 2018) .................................................................................... 16 Lawson Prods., Inc. v. Avnet, Inc.,
782 F.2d 1429, 1433 (7th Cir. 1986) ................................................................................ 12 Levy v. Louisiana,
391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968)...................................................... 23
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Mays v. Dart, 2020 U.S. Dist. LEXIS 62326, at **8-9 (N.D. Ill. Apr. 9, 2020) .............................. passim
Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017) .................................................................................... 13
Protamek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2002) .................................................................................... 24
Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971) ............................................ 22, 23
Richardson v. Davis, 409 U.S. 1069 (1972)........................................................................................................ 21
Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984) .................................................................................... 12
Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992) ................................................................................ 13
Storck USA, LP v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994) ...................................................................................... 25
TY, Inc. v. The Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001) .................................................................................... 25
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) ........................................ 15
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017) .................................................................... 20, 24, 25
Statutes I.R.C. § 1 ......................................................................................................................................... 8 I.R.C. § 6103(a) .............................................................................................................................. 8 I.R.C. § 6109 ................................................................................................................................... 8 S. 3548, 116th Cong. (2020) ....................................................................................................... 4, 6 Other Authorities 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020)........................................................................... 5 Charles Alan Wright, et al., Temporary Restraining Orders,
11A Federal Practice and Procedure § 2951 (3d ed. 2019) .............................................. 12 Rules Federal Rule of Civil Procedure 23(b)(2) ..................................................................................... 13 Regulations Treas. Reg. § 301.6109-1(a)(1)(ii)(B)............................................................................................. 8
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INTRODUCTION This Emergency Motion seeks an Order prohibiting Defendants, 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; and STEVEN MNUCHIN, in his individual and official capacity as the Acting Secretary of the U.S. Department of Treasury (hereinafter collectively referred to as “Defendants”), from enforcement of the S. 3548-Coronavirus Aid, Relief, and Economic Security Act (hereinafter “CARES Act”) as written and as applied to the Plaintiff and the putative class (hereinafter “Putative Class”) in this action. The Emergency Motion further requests a declaratory judgment that the CARES Act provision at issue in this case, as written and as applied to Plaintiff and the Putative Class, violates the First Amendment to the U.S. Constitution; the Due Process Clause of the Fifth Amendment to the U.S. Constitution; Equal Protection and Privileges and Immunities under the Fourteenth Amendment to the U.S. Constitution under the Reverse Incorporation Doctrine; the well-established fundamental right to marry; and denies Plaintiff and the Putative Class rights, privileges, immunities, and/or benefits to which they would otherwise be entitled.
PROCEDURAL HISTORY 1. On April 24, 2020, Plaintiff filed a class action complaint against Defendants (the “Complaint”). See Dkt No. 1. 2. On April 27, 2020, Plaintiff filed his First Amended Class Action Complaint (the “First Amended Complaint”) against Defendants. See Dkt. No. 11. 3. On April 29, 2020, Plaintiff effectuated service of the First Amended Complaint on Defendants. See Dkt. No. 12.
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THE EXIGENT FACTS THAT NECESSITATE THIS MOTION 4. On March 11, 2020, the World Health Organization’s Director General categorized the current coronavirus (hereinafter “COVID-19”) outbreak as a pandemic (hereinafter the “Pandemic”). WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 – 11 March 2020, WORLD HEALTH ORGANIZATION (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020 (last visited April 30, 2020). 5. On March 13, 2020, President Donald J. Trump, proclaimed that the COVID-19 outbreak in the United States constitutes 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). 6. As of April 29, 2020, the Center for Disease Control and Prevention reported 1,005,147 Covid-19 Cases in the United States. Coronavirus Disease 2019 (COVID-19): Cases in the US, CDC.GOV (April 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited April 30, 2020). 7. According to the U.S. Department of Labor, as of March 2020, the unemployment rate increased by 0.9 percentage point to 4.4 percent – the largest over-the-month increase in the rate since January 1975. News Release: The Employment Situation – March 2020, BUREAU OF LABOR STATISTICS (April 3, 2020), https://www.bls.gov/news.release/pdf/empsit.pdf (last visited April 30, 2020).
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8. The number of unemployed persons rose by 1.4 million to 7.1 million in March 2020. The sharp increases in these measures reflect the effects of COVID-19 and efforts to contain it. Id.
9. According to the U.S. Department of Labor, as of Thursday April 23, 2020, the insured unemployment rate was 11% for the week ending April 11, 2020, which is the highest seasonally adjusted insured unemployment rate in the history of the seasonally adjusted series. See Unemployment Insurance Weekly Claims, DEPARTMENT OF LABOR (April 23, 2020), https://www.dol.gov/ui/data.pdf (last visited April 29, 2020).
10. Morgan Stanley has forecast that the unemployment rate should top 15% in April 2020 and it predicts the U.S. will experience a 16.4% unemployment rate in May, “higher than any point since the Great Depression.” Charisse Jones, Jobless Claims May Reach 30 Million in Six Weeks as COVID-19 Layoffs Continue to Soar, USA TODAY (April 29, 2020), https://www. usatoday.com/story/money/2020/04/29/coronavirus-likely-lead-another-3-5-million-file-joblessclaims/3037057001 (last visited April 30, 2020).
11. Jobless claims have reached 22 million, and the Federal Reserve estimates that up to 47 million jobs could be lost. Alexander Kalev, Research: U.S. Unemployment Rising Faster for Women and People of Color, HARVARD BUSINESS REVIEW (April 20, 2020) https://hbr.org/20 20/04/research-u-s-unemployment-rising-faster-for-women-and-people-of-color (last visited April 30, 2020).
12. More troubling is that women and minorities are overrepresented in industries at high risk of layoffs, such as retail, hospitality, recreation, and manufacturing. Id; see also Foreign-Born Workers: Labor Force Characteristics – 2018, BUREAU OF LABOR STATISTICS (May 16, 2019), https://www.bls.gov/news.release/pdf/forbrn.pdf (last visited April 30, 2020).
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13. Additionally, women and minorities are in greater danger of losing their jobs in these troubled times not only because they work in high-layoff-risk industries but also because most companies reflexively put them at the top of their layoff lists. Kalev, supra.
14. In 2018, median usual weekly earnings of foreign-born, full-time wage and salary workers were 83.3 percent of the earnings of their native-born counterparts. Bureau of Labor Statistics, supra.
15. Further, many parents, like our Plaintiff, must elect to have at least one parent stay home to care for their minor children that are now unable to attend school due to COVID-19 closures, resulting in loss of family income. See Affidavit of Plaintiff John Doe, attached hereto and incorporated herein as Exhibit A, redacted to preserve Plaintiff’s anonymity, and available for this Court’s in camera review
16. As outlined in the First Amended Complaint, the CARES Act was introduced in the United States Senate (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).
17. The CARES Act was signed into law by President Donald J. Trump on March 27, 2020. See Dkt No. 2.
18. 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) (emphasis added).
19. During the House of Representatives debate on the CARES Act, Representative TJ Cox highlighted what he called “this bill's glaring shortcomings” which included the fact that
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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).
20. Section 2101 of the CARES Act amends Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986 by inserting a new section relating to the Pandemic, entitled SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS (“Section 6428”). Section 6428 (a) provides stimulus payments (hereinafter “Stimulus Check”) to individuals. Under section 6428 (a) each “eligible individual” receives $1,200, and “eligible individuals filing a joint return” receive $2,400. Section 6428 (a)(2) provides each eligible individual an additional $500 for each of the individual’s “qualifying children.” Section 6428 (c) lessens these amounts for individuals making more than $75,000 and married couples filing jointly who make more than $150,000.
21. Under the new Section 6428 (h) the Identification Number Requirements for eligibility for the Stimulus Check are defined as follows:
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, and [(hereinafter the “Exclusion Provision”)] “(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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“(B) ADOPTION TAXPAYER IDENTIFICATION NUMBER.—For purposes of paragraph (1)(C), in the case of a qualifying child who is adopted, the term ‘valid identification number’ shall include the adoption taxpayer identification number of such child. S. 3548, 116th Cong. § 2101(a) (2020) (emphasis added). 22. As written, Section 6428(h) only permits a joint filing married citizen to receive a Stimulus Check if both parties to the marriage possess Social Security numbers – an unlawful exclusion of Plaintiff and the Putative Class. 23. The CARES Act was enacted explicitly to provide emergency assistance to American citizens, and Plaintiff and the Putative Class have intentionally been excluded from the group of citizens entitled to such assistance because they filed tax returns with their spouses, who lack Social Security numbers. Moreover, more than 80 million qualifying Americans should have already received their Stimulus Checks, and the remaining qualifying Americans (other than Plaintiff and the Putative Class) should receive them on or about April 29, 2020 and May 5, 2020. See Michelle Singletary, If You’re Still Waiting on Your $1,200 Stimulus Check, Here are Key Dates for the Next Set of Payments, THE WASHINGTON POST (April 27, 2020) https://www.washingtonpost.com/business/2020/04/27/more-1200-stimulus-checks-are-wayhere-are-key-dates-next-set-payments/ (last visited April 30, 2020). 24. As the supporting declarations attached to this Motion make clear, Plaintiff and other similarly situated individuals are suffering grave economic hardships that will be ameliorated by treating them similarly to their fellow U.S. Citizens. See Exhibit A. 25. Specifically, due to the Pandemic, Plaintiff’s monthly family income has been reduced to the point that it is extremely difficult to make ends meet; with his minor child’s
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school closure as a result of the Pandemic and the requirements of e-learning, his wife has been forced to remain at home with their two (2) minor children, who are also U.S. citizens, and is unable to work outside the home. See Exhibit A. While it has always been difficult to provide a decent life for his family with the income he earns, it is now nearly impossible to meet his financial obligations for the minimum necessities of life, including the ability to put food on his family’s table. See id. Indeed, Plaintiff’s food expenses have significantly increased as a result of his minor child being home from school. See id. Plaintiff is on the verge of being unable to pay his mortgage, and his insurance premiums and health insurance deductibles. See id. The CARES Act stimulus check would make it possible to meet some of his family’s basic necessities during the Pandemic. See id.
26. 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. See Dkt No. 11.
27. 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, 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. See Dkt No. 11.
28. An Individual Taxpayer Identification Number (“ITIN”) is a tax processing number issued by the Internal Revenue Service. The IRS issues ITINs to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible
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to obtain, a Social Security number from the Social Security Administration. I.R.C. § 6109; Treas. Reg. § 301.6109-1(a)(1)(ii)(B). Individuals who are present in the United States without formally completing the immigration process may nevertheless be issued an ITIN for the purpose of paying their taxes. An ITIN does not confer any immigration status or provide work authorization or eligibility for social services programs. Instructions for Form W-7, INTERNAL REVENUE SERVICE (September 2019), https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 30, 2020). Federal law generally requires all wage earners to file tax returns and use an identification number. I.R.C. § 1. Individuals apply for an ITIN by submitting a W-7 form and a completed tax return to the IRS. I.R.C. § 6109.
29. 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 30, 2020).
30. 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 30, 2020).
31. In addition, the IRS notes that the following categories of individuals who are present in the United States legally must pay taxes but may not be eligible for a SSN and may obtain an ITIN:
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a. A non-resident foreign national who owns or invests in a U.S. business and receives taxable income from that U.S. business, but lives in another country;
b. A foreign national student who qualifies as a resident of the United States (based on days present in the United States);
c. A dependent or spouse of a U.S. citizen or lawful permanent resident; and d. A dependent or spouse of a foreign national on a temporary visa such as a H-4
and J-2. Individual Taxpayer Identification Number, INTERNAL REVENUE SERVICE (April 16, 2020), https://www.irs.gov/individuals/individual-taxpayer-identification-number (last visited April 30, 2020). See also Affidavit of Attorney Vivian Khalaf, Esq., attached hereto and incorporated herein as Exhibit B.
32. There are 1.2 million Americans married to immigrants who do not hold Social Security numbers. See Dkt No. 11 at ¶ 20.
33. 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 rights, privileges, immunities, and/or benefits conferred upon all other U.S. citizens who otherwise qualify. See Dkt No. 11 at ¶ 21.
34. 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).
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35. Plaintiff and the Putative Class have no adequate remedy at law and are suffering irreparable harm. Defendants will suffer no harm should this Court grant an injunction prohibiting enforcement of the Exclusion Provision as written, which is discriminatory on its face, and amending it as described hereinbelow. Meanwhile, the imminent harm to Plaintiff and the Putative Class is severe. The public interest is clearly served by this Court acting to order recognition of U.S. Citizens and their U.S. children consistent with the manner in which the Federal Government treats similarly situated U.S. Citizens, without regard to their mixed family status. Only prompt action by this federal Court ordering declaratory and injunctive relief will serve the public interest.
36. 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, denied them a benefit conferred upon all other otherwise qualifying U.S. Citizens simply because of whom they chose to marry, which is facially discriminatory and retributive.
37. Plaintiff and the Putative Class have 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 which has made many, if not all, of the putative class members fraught with worry and despair that they will be unable to sustain the basic necessities of life for themselves and their children if they are denied the benefits available to other similarly situated Americans who are not married to immigrants filing jointly with ITIN numbers in light of the COVID pandemic which the CARES Act sought to provide emergency response; a loss of privacy, due process, equal protection, reputation in the community, and dignity. See Affidavit of John Doe; see also
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Affidavits of Thomas J. Nitschke, Esq., Lana B. Nassar, Esq., and Heather L. Blaise, Esq. attached hereto and incorporated herein as Group Exhibit C.
38. Plaintiff and the Putative Class do not have an adequate remedy at law to protect and re-establish their rights which currently have been, and continue to be, violated by Defendants’ actions. Plaintiff’s rights cannot be secured except through injunctive relief.
39. Entering the injunctive relief that Plaintiff is seeking will cause the Defendants no harm.
40. 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 marriage to immigrants.
41. There is a reasonable likelihood that the Plaintiff will succeed on the merits of his claims.
42. As a result of the foregoing, Plaintiff and the Putative Class request this Honorable Court consider this Motion on an emergency basis and grant a temporary restraining order prohibiting the Defendants from enforcing the Exclusion Provision in the CARES Act and amending the text of the Exclusion Provision as described herein to afford all citizens the rights and benefits to which they are entitled by the Constitution of the United States.
LAW To determine whether a party is entitled to a preliminary injunction or temporary restraining order, “a district court engages in an analysis that proceeds in two distinct phases: a threshold phase and a balancing phase.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085–86 (7th Cir. 2008). To meet the threshold standard, a plaintiff must show that (1) he has a reasonable likelihood of success on the merits of the underlying claim; (2) no adequate remedy at law exists; and (3) he will suffer irreparable harm if
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the TRO is denied. Harder v. Vill. of Forest Park, 2005 U.S. Dist. LEXIS 28068, ¶ 4-5 (citing Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 474-475 (7th Cir. 2001)).
Once these threshold requirements are met, the court “must somehow balance the nature and degree of the plaintiff’s injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the ‘public interest.’” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986). Courts in the Seventh Circuit employ a “sliding scale” approach to weigh these interests: “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984). As demonstrated below, Plaintiff and the Putative Class easily meets the elements of a prima facie case for injunctive relief and the balance of harm weighs heavily in their favor.
Where circumstances are such that even the time needed to hear a request for a preliminary injunction is too long to prevent irreparable harm, a temporary restraining order (T.R.O.) may issue while a court considers a request for a preliminary injunction. See Charles Alan Wright, et al., Temporary Restraining Orders, 11A Federal Practice and Procedure § 2951 (3d ed. 2019). Where, as here, the opposing party receives actual notice of the request for a T.R.O., the procedure courts follow does not differ from an application for a preliminary injunction, and no special procedural requirements apply. Id.; see also Budget Rent A Car Corp. v. Harvey Kidd Automotive, 249 F. Supp. 2d 1048, 1049 (N.D. Ill. 2003).
The fact that this Plaintiff seeks relief applicable to the entire Putative Class in the form of a temporary restraining order prior to a ruling on class certification does not bar relief for Plaintiff and the Putative Class, “because a district court has general equity powers allowing it to
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grant temporary or preliminary injunctive relief to a conditional class.” Mays v. Dart, 2020 U.S. Dist. LEXIS 62326, at **8-9 (N.D. Ill. Apr. 9, 2020). “[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification.” Id. at *9 (quoting Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012)). Federal Rule of Civil Procedure 23(b)(2) “does not restrict class certification to instances when final injunctive relief issues” and allows for certification of a conditional class to grant preliminary injunctive relief. Id.; see also Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990) (affirming grant of a preliminary injunction to a conditional class).
ARGUMENT I. Plaintiff Meets His Burden for Certification of the Putative Class and is Entitled to
Injunctive Relief on behalf of the Putative Class. Under Federal Rule of Civil Procedure 23(a), the four prerequisites for class certification are numerosity, commonality, typicality, and adequate representation. Beaton v. Speedy PC Software, 907 F.3d 1018, 1025 (7th Cir. 2018). “Once these four prerequisites are satisfied, the potential class must also satisfy at least one provision of Rule 23(b).” Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). A. Numerosity As for numerosity, generally, forty class members suffice to satisfy Rule 23(a). Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017). In this case, statistics show there are 1.2 million U.S. Citizens married to immigrants who do not hold Social Security numbers. Accordingly, of the 1.2 million Americans who are married to immigrants without Social Security numbers, those who file joint tax returns, are not in the military, and whose adjusted gross income is not excess of the requisite amounts meet the definition of the Putative Class. See Dkt. 11 at ¶ 28. Specifically, and as provided in the affidavit of Vivian Khalaf, Esq.,
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most of the Americans who are married to spouses with ITIN numbers file jointly. See Exhibit B; see also 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). In fact, most couples she counsels, regardless of whether or not one party has an ITIN, file jointly and not separately; this is, in part, because married filing separately status typically results in application of the highest income tax rate. See id. Indeed, most of her clients who have ITINs and are married to U.S. citizens are usually going through the immigration process in order to obtain legal status for the immigrant spouses. See id. This legal immigration process requires bona fide proofs of the marriage. See id. The filing of joint tax returns are used as bona fide proof of marriage and are weighted heavily in favor of a bona fide marriage. See Instructions for Form I-130, Petition for Alien Relative, and Form I-130 A, Supplemental Information for Spouse Beneficiary at pp. 6-7, Section 5, attached hereto and incorporated herein as Exhibit D; see also Exhibit B. When a couple files separately, it raises the presumption that the marriage may have been entered into solely for purposes of acquiring an immigration benefit and thus, requiring couples to file individually could harm the immigrant spouse’s chances at achieving documented immigrant status. See id. In her practice, Attorney Khalaf has personally seen separately filed tax returns result in negative consequences for couples going through the immigration process. See id. Moreover, filing separately does not give the filers many benefits and tax credits available for joint filers, and requiring tax returns to be amended to be married filing separately for 2018 and/or 2019 tax years will likely cause
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additional expenses (and losses of preferred tax rate, credits and deductions) that would eclipse the benefits provided under the CARES Act. See id.
Accordingly, the numerosity requirement is met. B. Commonality “Commonality requires at least one question common to all the class members, the answer to which is “apt to drive the resolution of the litigation.” Mays, 2020 U.S. Dist. LEXIS 62326, at *10 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011)).” In the instant matter Plaintiff’s claims are typical of the claims of the Putative Class, as they are based on the same legal theory and arise from the same unlawful conduct. There are common questions of law and fact affecting the Putative Class which predominate over questions that may affect individual members (hereinafter “Class 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 interests;
c. Whether and to what extent Defendants have deprived Class Members of their rights, privileges, and immunities secured by the Constitution of the United States;
d. Whether Class Members are entitled to actual damages, statutory damages, and/or punitive damages as a result of Defendants’ wrongful conduct;
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e. Whether Class Members are entitled to injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act; and
f. Whether or not Class Members are entitled to Declaratory Judgment relating to their classification and exclusion, among others, under the CARES Act.
These six questions are common to all the Class Members, and accordingly are “apt to drive the resolution of the litigation.” Id.
Thus, the commonality requirement of Rule 23(a) is met. C. Typicality “The Seventh Circuit has explained that a named plaintiff's claims are typical if they “arise[ ] from the same event or practice or course of conduct that gives rise to the claims of other class members and [are] based on the same legal theory.” Mays, 2020 U.S. Dist. LEXIS 62326, at *11 (citing Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018)).” The claim of the Plaintiff here is typical of the class, because Plaintiff and the Class Members all contend they have intentionally been excluded from receiving the Stimulus Check -- a benefit conferred upon all other U.S. Citizens -- simply because of whom they chose to marry, which is facially discriminatory, retributive, and unconstitutional. None of the Class Members have any additional claims under these facts that are not or cannot be raised by Plaintiff given his exact same factual posture. Therefore, the typicality requirement is met. D. Adequate Representation “Under this requirement of Rule 23(a), the named plaintiff must be a member of the putative class and must have the same interest and injury as other members.” Mays, 2020 U.S.
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Dist. LEXIS 62326, at **11-12 (citing Beaton v. SpeedyPC Software, 907 F.3d 1018, 1027 (7th Cir. 2018)). Plaintiff Doe is a U.S. citizen who earns less than $75,000.00 in adjusted gross income, whose children are also U.S. citizens, and who filed his 2018 Federal Tax Return jointly with his spouse, an immigrant who used an Individual Taxpayer Identification Number. See Exhibit A. Accordingly, Plaintiff shares the same interest and injury as the members in the class who would otherwise qualify for the Stimulus Check but for whom they chose to marry. Further, per Rule 23(a), Plaintiff has retained counsel experienced in handling civil rights cases and class actions. See Group Exhibit C. Neither Plaintiff nor his counsel have any interests that might cause them not to pursue these claims vigorously. Thus, Plaintiff and his counsel provide adequate representation of the defined Putative Class.
In sum, the class certification requirements of Rule 23(a) have been met; in the alternative, they have been provisionally met for purposes of this motion for temporary restraining order, preliminary injunction and/or declaratory relief.
E. Rule 23(b)(2) Rule 23(b)(2) permits class actions if “the party opposing the class has acted or refused to act on grounds that apply generally to the class,” such that injunctive or declaratory relief is appropriate for the class as a whole. Plaintiff satisfies this requirement because he seeks “the same [. . .] injunctive relief for everyone” in the class. Mays v. Dart, No. 20 C 2134, 2020 U.S. Dist. LEXIS 62326, at *12 (N.D. Ill. Apr. 9, 2020) (citing Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 442 (7th Cir. 2015)). Consequently, Plaintiffs respectfully request this Honorable Court certify the Class and appoint the undersigned counsel as Class Counsel or in the alternative grant provisional class
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certification and provisional appointment of Class Counsel for purposes of this Motion; and grant any additional relief this Court deems necessary and just under the circumstances.
II. Plaintiff and the Putative Class Will Be Irreparably Harmed If Interim Relief Is Not Granted. “To demonstrate irreparable injury, [a] plaintiff must show that he will suffer immediate
harm that cannot be rectified by final judgment after trial.” Harder, 2005 U.S. Dist. LEXIS 28068, ¶ 5 (citing Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 474 (7th Cir. 2001)). Plaintiff alleges injuries that are irreparable and, therefore, not suitable for resolution in the ordinary course of litigation. See, e.g., Girl Scouts, 549 U.S. at 1086. A threshold question is whether the Putative Class is entitled to injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act. The CARES Act is intended to provide emergency assistance, which Defendants have categorically deprived the Plaintiffs of. S. 3548, 116th Cong. (2020) (emphasis added). The CARES Act expressly acknowledges the grave emergency circumstances that U.S. citizens making under $75,000.00 face as a result of the Pandemic, yet it pointedly carves out Plaintiff and the Putative Class, which consists of up to 1.2 million Americans. If Plaintiff and the Putative Class are denied immediate injunctive relief, their families will continue to struggle to meet their financial obligations for the basic necessities of human life, including but not limited to avoiding starvation for them and their children, homelessness, and other dire consequences affecting their liberty and safety, all of which the CARES Act was designed to address for qualifying Americans as a result of the Pandemic. See Exhibit A; see also Group Exhibit C.
Arguably, the most troubling part of the Exclusion Provision is the effect on the lawful immigration process. Specifically, the requirement for a couple to provide bona fide proofs of the marriage. This is evidenced by the Department of Homeland’s Security’s requirement that the
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couple demonstrate that the marriage is bona fide by, including but not limited to, “Documentation showing that you and your spouse have combined your financial resources…You must submit clear and convincing evidence that you and your spouse entered into the marriage in good faith and not for immigration purposes if you married your spouse while your spouse was the subject of an exclusion, deportation, removal, or rescission proceeding (including during the judicial review of any one of these proceedings).” See Exhibit D.
In Matter of Laureano, a BIA precedent case states in pertinent part: (2) In determining whether a marriage is fraudulent for immigration purposes, the conduct of the parties after the marriage is relevant as to their intent at the time of marriage; evidence to establish intent may take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. See 19 I. & N. Dec. 1, 1, 1983 BIA LEXIS 18, *1 (B.I.A. December 12, 1983) [emphasis added].
The irreparable harm of requiring US Citizens to file their 2019 and/or amend their 2018 tax returns to file separately in order to receive the Stimulus Check is diametrically opposed to the immigration policy embodied in the Immigration and Nationality Act that provides U.S. Citizen’s a path to obtaining lawful citizenship for their spouses. A dire consequence to the sanctity of marriage, this Exclusion Provision necessitates immediate redress.
Accordingly, Plaintiff and the Putative Class will be irreparably harmed if interim relief is not granted.
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III. Plaintiffs Have a Likelihood of Success on the Merits of Their Claim That the CARES Act Provision at Issue Violates the First, Fifth, and Fourteenth Amendments. A plaintiff moving for preliminary injunctive relief need not demonstrate a likelihood of
absolute success on the merits; instead, he need only show that his chances to succeed on his claims are “better than negligible.” Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). This is a low threshold. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017).
There is no question that Plaintiff meets this burden. Defendants, acting under color of law, have violated rights secured to Plaintiff by the First, Fifth, and Fourteenth Amendments to the United States Constitution including the right of association, 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. See Dkt. No. 11 at ¶ 37. Specifically, Defendants have failed, as applied to Plaintiff (and other similarly situated individuals), to treat him as equal to his fellow United States citizens based solely on whom he chose to marry. See id. Accordingly, Defendants have discriminated against Plaintiff on the basis of his fundamental right of marriage, a right guaranteed to him under the Constitution of the United States. See id. at ¶¶ 49-50. Specifically, the CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the First Amendment, the Due Process Clause of the Fifth Amendment, and Fourteenth Amendment. See id. at ¶ 50. Defendants cannot show a 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. See id. at ¶ 52. The CARES Act singles out law-abiding and tax-paying U.S. Citizens by excluding them from a benefit they and their children would otherwise be
20

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 25 of 35 PageID #:90
entitled to with no compelling interest justifying the law and without serving any legitimate governmental interest. See id. at ¶ 54. Section 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest. See id. at ¶ 55.
Furthermore, Defendants discriminate against Plaintiff and the Class Members on the basis of their spouses’ alienage. 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 justification is necessary to serve any legitimate governmental interest. Defendants treat Plaintiff differently from U.S. Citizens who marry other U.S. Citizens, who are otherwise similarly situated. Graham v. Richardson, 403 U.S. 365, 372 (1971) (footnotes and citations omitted).
Moreover, similarly to the facts at hand, the unfair treatment of minor children relating to Social Security benefits based on their parentage has found the federal government to be in violation of the U.S. Constitution. Griffin v. Richardson, 346 F. Supp. 1226 (D. Md. 1972). Richardson v. Davis, 409 U.S. 1069 (1972), summarily aff'g 342 F.Supp. 588 (Conn.). The due process clause of the fifth amendment prohibits, as to the federal government, statutes creating arbitrary discriminations which have no rational basis in legitimate governmental purposes. While there is no specific equal protection guarantee applicable to the federal government, equal protection standards of the fourteenth amendment have been imported into the due process clause of the fifth amendment. Davis v. Richardson, 342 F. Supp. 588, 591 (D. Conn. 1972), summarily aff’d in Richardson v. Davis, 409 U.S. 1069 (1972), citing Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954) (“The Fifth Amendment [ . . .] does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of
21

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 26 of 35 PageID #:91
fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”); Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); Bolton v. Harris, 130 U.S. App. D.C. 1, 395 F.2d 642 (1968).
In finding an immediate need to provide Social Security payments to an illegitimate child based on her impoverished needs, the Griffin Court determined that any “delay in determining the constitutionality of the law under which plaintiff has been denied benefits would serve no useful purpose. A deferred recovery of a lump sum amount by this plaintiff would do nothing to alleviate her immediate need, especially in view of the fact that plaintiff here […] [and] the class as a whole” would likely suffer from impoverished conditions, a “common observation teaches that illegitimacy and indigency are often handmaidens.” Griffin 346 F. Supp. 1226, 1232 (D. Md. 1972. The same is true in the case at hand as it relates to mixed-status families, and the severity of impoverishment is readily apparent per the Department of Labor’s statistics. See ForeignBorn Workers: Labor Force Characteristics – 2018, BUREAU OF LABOR STATISTICS (May 16, 2019), https://www.bls.gov/news.release/pdf/forbrn.pdf (last visited April 30, 2020). Accordingly, the emergency need of the CARES Act relief cannot be overstated. Thus, the equities of this case, similarly to Griffin, do not favor a delay.
In applying the standard of review, the Griffin Court explained: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is 'rationally based and free from invidious discrimination.' Dandridge v. Williams, 397 U.S. 471, 487 [90 S. Ct. 1153, 1162, 25 L. Ed. 2d 491]. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment's Equal Protection Clause, a classification which meets the test articulated in Dandridge is
22

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 27 of 35 PageID #:92
perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499 [74 S. Ct. 693, 694, 98 L. Ed. 884]. Griffin v. Richardson, 346 F. Supp. 1226, 1232 (D. Md. 1972), quoting Richardson v. Belcher, 404 U.S. 78, 81 (1971). As the Supreme Court of the United States instructs, though the latitude given to lawmakers to economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court must exercise strict scrutiny. Richardson, 406 U.S. at 172-73, citing Brown v. Board of Education, 347 U.S. 483 [74 S. Ct. 686, 98 L. Ed. 873] (1954); Harper v. Virginia [State] Board of Elections, 383 U.S. 663 [86 S. Ct. 1079, 16 L. Ed. 2d 169] (1966). There can be no doubt that the allegations complained of by Plaintiff and the Putative Class affect their fundamental rights and are subject to strict scrutiny. Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968) (The rights asserted involved "the intimate, familial relationship between a child and his own mother" and noting that it has "been extremely sensitive when it comes to basic civil rights [citations omitted] and [has] not hesitated to strike down an invidious classification."). In this case, both the fundamental right of U.S. Citizens and the invidious classification based on the alienage status of their spouse leaves no doubt that the Exclusion Provision CARES Act is subject to strict scrutiny and thus is unconstitutional as written and as applied. Accordingly, the CARES Act provision at issue violates the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment to the United States Constitution; the rights of Plaintiff and the Putative Class to Equal Protection and Privileges and Immunities under the Fourteenth Amendment to the United States Constitution under the Reverse Incorporation Doctrine; and the well-established fundamental right to marry.
23

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 28 of 35 PageID #:93
IV. Traditional Legal Remedies Are Inadequate. The moving party must demonstrate that he has no adequate remedy at law should the
preliminary injunction not issue. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017) (citing Protamek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2002)). He need not demonstrate that the remedy is wholly ineffectual. Whitaker, 858 F.3d at 1046 (citing Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003)). Instead, he must show that any award would be “seriously deficient as compared to the harm suffered.” Id.
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 without this Court’s grant of injunctive relief. Specifically, Plaintiff and the Putative Class requests a temporary and/or preliminary injunction against the Defendants and all those acting in concert with them, prohibiting enforcement of the laws, as applied, at issue in this action, specifically requesting the CARES Act to be applied as follows:
“(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.
24

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 29 of 35 PageID #:94
Such change conforms with the law, and treats all U.S. Citizens similarly, a right to which they are Constitutionally entitled.
In sum, Plaintiff has met his burden of establishing the threshold requirements for a temporary restraining order, as well as for a preliminary injunction.
V. The Balance of Relative Harms and the Public Interest Favors the Relief Plaintiffs Are Requesting. “Once a moving party has met its burden of establishing the threshold requirements for a
preliminary injunction, the court must balance the harms faced by both parties and the public as a whole.” Mays, 2020 U.S. Dist. LEXIS 62326, at *12 (quoting Whitaker, 858 F.3d at 1054). The nature of the balancing depends on the moving party's likelihood of success: the higher the likelihood, the more the balance tips in favor of granting injunctive relief. Id.
Courts apply a sliding scale approach in determining whether to issue a temporary restraining order -- the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms needs to be to favor the plaintiff's position. See TY, Inc. v. The Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). Finally, the court must consider the public interest (nonparties) in denying or granting the injunction. See id. (citing Storck USA, LP v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994)).
As shown above, Plaintiff’s likelihood of success is high, as 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. There is no harm to the Defendants by this Court granting an injunction prohibiting enforcement of the challenged CARES Act provision.
25

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 30 of 35 PageID #:95
Meanwhile, the harm to Plaintiff and the Putative Class is severe. Defendants may argue that Plaintiff and the Putative Class could qualify for the Stimulus Check if they were to amend or file their 2018 and/or 2019 returns to married filing separately. However, requiring Plaintiff and those similarly situated to be forced to amend and re-file tax returns will cause additional expenses and delays that would likely eclipse and exceed the benefit of the Stimulus Check. See Exhibit B. Namely, the spouses will be required to file two separate tax returns for each applicable tax year and to pay the preparation expenses of those returns. Next, married filing jointly enjoys the lowest tax rate, while married filing separately has the most dis-favored treatment. See Blackwell, supra; see also Woroch, supra. Thus, for Plaintiff and the Putative Class, filing separately and/or amending their returns to file separately will likely result in additional taxes being due. In addition, when one files married filing separately, the filer is unable to claim: Education benefits; Earned Income Credit (EIC); Child and Dependent Care Credit (usually); Adoption Credit (usually); and the personal exemptions, itemized deductions, the Child Tax Credit, and capital losses are all reduced by half. Id. Plus, both spouses cannot do itemized deductions and thus one spouse will be limited to taking only standard deductions. Id. On top of that, those that live in the community property states of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin, have to deal with community property allocations and adjustments, which adds extra work and complexity to tax preparation. See Publication 555 (03/2020), Community Property, INTERNAL REVENUE SERVICE (March 2020), https://www.irs.gov/publications/p555 (last visited April 30, 2020). However, potentially the gravest harm faced by Plaintiff and those similarly situated is the fact that in the legal immigration context, tax returns with the married filing jointly status are considered indicia of a bona fide marriage, entitling the immigrant spouse a legal path of immigration, while
26

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 31 of 35 PageID #:96
married filing separately creates a presumption of a marriage only for the purposes of immigration status. See Exhibit D and Exhibit B. Thus, the Defendants’ encouragement of Plaintiff and those similarly situated to file tax returns separately, which can then detrimentally affect lawful immigration pathways for immigrant spouses, is nothing short of an appalling assault on legal immigration and the constitutional rights of U.S. citizens to marry whom they love, regardless of immigration status. Justice cannot stand for such a result-period.
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.
PRAYER FOR RELIEF WHEREFORE, Plaintiff JOHN DOE, individually and on behalf of the Putative Class, by and through his attorneys, Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC, prays for relief as follows: a. An Order granting class certification, or in the alternative provisional class
certification for purposes of this Motion; b. An Order granting Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC as class
counsel, or in the alternative provisional class counsel for purposes of this Motion; c. A temporary and/or preliminary injunction against the Defendants and all those acting
in concert with them prohibiting enforcement of the laws, as applied, at issue in this action, as follows:
i. Issuing a Temporary Restraining Order to CARES Act Section 2101 to be applied as follows:
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Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 32 of 35 PageID #:97
“(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)). ii. Issuing a Preliminary 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.
28

Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 33 of 35 PageID #:98

d. A determination that the Exclusion Provision is unconstitutional and should not be

enforced;

e. Issue a declaratory judgment that the CARES Act provision at issue in this case is

subject to strict scrutiny;

f. Issue a declaratory judgment that the CARES Act provision at issue in this case, as

applied to the Plaintiff and the Putative Class, violates the constitutional and statutory

rights of Plaintiff and the Putative Class;

g. Issue a declaratory judgment striking from the CARES Act those provisions that are

violative of the protections afforded to Plaintiff and the Putative Class 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 immediate issuance of Stimulus Checks to Plaintiffs and the

Putative Class;

i. For an award of attorneys’ fees and costs; and/or

j. Such other and further relief as this court may deem just and proper.

Dated: April 30, 2020

Respectfully submitted, JOHN DOE, individually and on behalf of others similarly situated (collectively “Their”).

Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602

By: Lana B. Nassar One of Their attorneys

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Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 34 of 35 PageID #:99 F: (312) 803-1940 lnassar@blaisenitschkelaw.com Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com
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Case: 1:20-cv-02531 Document #: 13 Filed: 04/30/20 Page 35 of 35 PageID #:100
CERTIFICATE OF SERVICE I, Lana B. Nassar, an attorney, hereby certify that on April 30, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on the United States Attorney’s Office in the Northern District of Illinois via email.

Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com ARDC No. 6319396

Lana B. Nassar

31

Case: 1:20-cv-02531 Document #: 13-1 Filed: 04/30/20 Page 1 of 3 PageID #:101

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

AFFIDAVIT OF

Affiant,

, first duly sworn upon oath and in support of Plaintiff’s,

individually and on behalf of others similarly situated, Emergency Motion for a Temporary

Restraining Order, Preliminary Injunction and/or Declaratory Judgment, states:

1. I am a citizen of the United States.

2. I am a father of two (2) United States citizen minor children.

3. I am married to a

national who is currently in the process of obtaining a

permanent residency in the United States.

4. I filed my taxes jointly with my spouse who used her Individual Taxpayer

Identification Number in 2018 .

1
EXHIBIT A

Case: 1:20-cv-02531 Document #: 13-1 Filed: 04/30/20 Page 2 of 3 PageID #:102

Case: 1:20-cv-02531 Document #: 13-1 Filed: 04/30/20 Page 3 of 3 PageID #:103

Case: 1:20-cv-02531 Document #: 13-2 Filed: 04/30/20 Page 1 of 4 PageID #:104

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

AFFIDAVIT OF VIVIAN KHALAF

Affiant, VIVIAN KHALAF, of Khalaf & Abuzir, LLC, being first duly sworn upon oath and in support of Plaintiff’s, individually and on behalf of others similarly situated, Emergency Motion for a Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment, states:
1. Affiant is attorney for Plaintiff JOHN DOE individually and on behalf of others similarly situated, as it relates to the above-captioned case.

2. Affiant certifies that she has practiced Immigration Law for 28 years and has been licensed to practice law in Illinois since 1993.

1
EXHIBIT B

Case: 1:20-cv-02531 Document #: 13-2 Filed: 04/30/20 Page 2 of 4 PageID #:105
3. Affiant certifies that the following individuals may receive an Individual Taxpayer Identification Number (“ITIN”):
a. A non-resident foreign national who owns or invests in a U.S. business and receives taxable income from that U.S. business, but lives in another country;
b. A foreign national student who qualifies as a resident of the United States (based on days present in the United States);
c. A dependent or spouse of a U.S. citizen or lawful permanent resident; and d. A dependent or spouse of a foreign national on a temporary visa such as a H-4
and J-2. 4. Affiant further certifies that based on her 28 years of immigration practice the following is true:
a. Most couples I counsel, regardless of whether or not one party has an ITIN file jointly and not separately;
b. This is, in part, because married filing separately status presents the highest income tax rate;
c. Most of my clients who have ITINs and are married to U.S. citizens are usually going through the immigration process in order to obtain legal status for the immigrant spouses;
d. This process requires bona fide proofs of the marriage; e. The filing of joint tax returns are used as bona fide proof of marriage and are
weighted heavily in favor of a bona fide marriage; f. When a couple files separately it raises the presumption that the marriage may
be entered into solely for purposes of acquiring an immigration benefit and
2

Case: 1:20-cv-02531 Document #: 13-2 Filed: 04/30/20 Page 3 of 4 PageID #:106 thus, requiring couples to file individually could harm the immigrant spouse’s chances at achieving documented immigrant status. In my practice, I have personally seen separately filed tax returns result in negative consequences for immigration process;
g. Filing separately does not give the filers the benefits and tax credits available for joint filers; and
h. Requiring tax returns to be amended to be married filing separately for 2018 and 2019 tax years will likely cause additional expenses that would eclipse the benefits provided under the CARES Act.
FURTHER AFFIANT SAYETH NAUGHT. VIVIAN KHALAF
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Case: 1:20-cv-02531 Document #: 13-2 Filed: 04/30/20 Page 4 of 4 PageID #:107

VERIFICATION BY CERTIFICATION
Under penalties of perjury as provided by law pursuant to 28 U.S. Code § 1746, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and, as to such matters, the undersigned certifies as aforesaid that she verily believes the same to be true.

Dated this 30th day of April, 2020
Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com

VIVIAN KHALAF

4

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 1 of 9 PageID #:108

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

AFFIDAVIT OF THOMAS J. NITSCHKE Affiant, THOMAS J. NITSCHKE, of Blaise & Nitschke, P.C., being first duly sworn upon oath and in support of Plaintiff’s, individually and on behalf of others similarly situated, Emergency Motion for a Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment, states: 1. I am an attorney for Plaintiff JOHN DOE individually and on behalf of others similarly situated, as it relates to the above-captioned case. 2. I certify that at the time of execution of this Affidavit on the 30th day of April 2020, Affiant’s Law Firm, Blaise & Nitschke, P.C. has received not less than 2,000 inquiries of eligibility for the putative class since the date of filing the Complaint on April 24, 2020.

1
GROUP EXHIBIT C

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 2 of 9 PageID #:109 3. I certify that many, if not all, of the putative class members are fraught with worry
and despair that they will be unable to sustain the basic necessities of life for themselves and their children if they are denied the benefits available to other similarly situated Americans who are not married to immigrants filing jointly with ITIN numbers in light of the COVID-19 pandemic which the CARES Act sought to provide emergency response.
4. I certify that I am experienced in handling civil rights cases and class actions. FURTHER AFFIANT SAYETH NAUGHT.
THOMAS J. NITSCHKE
2

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 3 of 9 PageID #:110

VERIFICATION BY CERTIFICATION
Under penalties of perjury as provided by law pursuant to 28 U.S. Code § 1746, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and, as to such matters, the undersigned certifies as aforesaid that she verily believes the same to be true.

Dated this 30th day of April, 2020.
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 tjnitschke@blaisenitschkelaw.com

THOMAS J. NITSCHKE

3

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 4 of 9 PageID #:111

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

AFFIDAVIT OF LANA B. NASSAR Affiant, LANA B. NASSAR, of Blaise & Nitschke, P.C., being first duly sworn upon oath and in support of Plaintiff’s, individually and on behalf of others similarly situated, Emergency Motion for a Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment, states: 1. I am an attorney for Plaintiff JOHN DOE individually and on behalf of others similarly situated, as it relates to the above-captioned case. 2. I certify that at the time of execution of this Affidavit on the 30th day of April 2020, Affiant’s Law Firm, Blaise & Nitschke, P.C. has received not less than 2,000 inquiries of eligibility for the putative class since the date of filing the Complaint on April 24, 2020. 3. I certify that I am experienced in handling civil rights cases and a class action.

1

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 5 of 9 PageID #:112

FURTHER AFFIANT SAYETH NAUGHT.

LANA B. NASSAR

2

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 6 of 9 PageID #:113

VERIFICATION BY CERTIFICATION
Under penalties of perjury as provided by law pursuant to 28 U.S. Code § 1746, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and, as to such matters, the undersigned certifies as aforesaid that she verily believes the same to be true.

Dated this 30th day of April, 2020.
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com

LANA B. NASSAR

3

Case: 1:20-cv-02531 Document #: 13-3 Filed: 04/30/20 Page 7 of 9 PageID #:114

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

AFFIDAVIT OF HEATHER L. BLAISE Affiant, HEATHER L. BLAISE, of Blaise & Nitschke, P.C., being first duly sworn upon oath and in support of Plaintiff’s, individually and on behalf of others similarly situated, Emergency Motion for a Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment, states: 1. I am an attorney for Plaintiff JOHN DOE individually and on behalf of others similarly situated, as it relates to the above-captioned case. 2. I certify that at the time of execution of this Affidavit on the 30th day of April 2020, Affiant’s Law Firm, Blaise & Nitschke, P.C. has received not less than 2,000 inquiries of eligibility for the putative class since the date of filing the Complaint on April 24, 2020. 3. I certify that I am experienced in handling civil rights cases and a class action.

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FURTHER AFFIANT SAYETH NAUGHT.

HEATHER L. BLAISE

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VERIFICATION BY CERTIFICATION
Under penalties of perjury as provided by law pursuant to 28 U.S. Code § 1746, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and, as to such matters, the undersigned certifies as aforesaid that she verily believes the same to be true.

Dated this 30th day of April, 2020.
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 hblaise@blaisenitschkelaw.com

HEATHER L. BLAISE

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Instructions for Form I-130, Petition for Alien Relative, and Form I-130A, Supplemental Information for Spouse Beneficiary
Department of Homeland Security U.S. Citizenship and Immigration Services

USCIS Form I-130/I-130A
OMB No. 1615-0012 Expires 02/28/2021

What Is the Purpose of Form I-130?
A citizen or lawful permanent resident of the United States may file Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS) to establish the existence of a relationship to certain alien relatives who wish to immigrate to the United States.

Who May File Form I-130?
1. If you are a U.S. citizen, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for: A. Your spouse; B. Your unmarried children under 21 years of age; C. Your unmarried sons or daughters 21 years of age or older; D. Your married sons or daughters of any age; E. Your brothers or sisters (you must be 21 years of age or older); and F. Your mother or father (you must be 21 years of age or older).
2. If you are a lawful permanent resident of the United States, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for:
A. Your spouse; B. Your unmarried child under 21 years of age; and C. Your unmarried son or daughter 21 years of age or older.
NOTE: 1. If you are filing for your spouse, he or she must complete and sign Form I-130A, Supplemental Information for
Spouse Beneficiary. If your spouse is overseas, Form I-130A must still be completed, but your spouse does not have to sign Form I-130A. Form I-130A must be submitted with Form I-130.
2. There is no visa category for married children of lawful permanent residents. If you are a lawful permanent resident and you filed Form I-130 for your unmarried son or daughter, but your son or daughter marries before immigrating to the United States or adjusting status to lawful permanent resident, we will deny or automatically revoke your petition.
3. Non-citizen U.S. nationals (as defined in the Immigration and Nationality Act (INA) section 308) have the same rights as lawful permanent residents to petition for family members. If you are a U.S. national born in American Samoa or Swains Island (or who otherwise qualifies as a non-citizen U.S. national, as described in INA section 308), you should indicate in Part 2., Item Number 36. of the petition that you are a lawful permanent resident. You do not need to list an Alien Registration Number (A-Number) in Part 2., Item Number 1. of the petition.
4. If the beneficiary qualifies under Items 1.C., 1.D., or 1.E. above, you are not required to file separate petitions for the beneficiary’s spouse or unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition.

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5. If you are the lawful permanent resident petitioner and the beneficiary qualifies under Items 2.A., 2.B., or 2.C. above, you are not required to file separate petitions for the beneficiary’s unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition.
6. The derivative beneficiaries described in Items 4. and 5. above may apply for an immigrant visa along with the beneficiary.
Who May Not File Form I-130?
You may NOT file Form I-130 for a person in the following categories:
1. An adoptive parent or adopted child, if the adoption took place after the child turned 16 years of age, or if the child has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition;
2. A natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special immigrant juvenile;
3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;
4. A spouse, if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was consummated;
5. A spouse, if you gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful permanent resident, unless: A. You are now a naturalized U.S. citizen; B. You have been a lawful permanent resident for at least five years; C. You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you gained your lawful permanent resident status) in order to evade any U.S. immigration law; or D. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse;
6. A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the bona fide marriage exemption under INA section 245(e)(3) if: A. You request in writing a bona fide marriage exemption and prove by clear and convincing evidence that the marriage is legally valid where it took place and that you and your spouse married in good faith and not for the purpose of obtaining lawful permanent resident status for your spouse and that no fee or any other consideration (other than appropriate attorney fees) was given to you for your filing of this petition. The request must be submitted with Form I-130; or B. Your spouse has lived outside the United States, after the marriage, for a period of at least two years;
7. Any person, if USCIS determines that he or she entered into or attempted or conspired to enter into a marriage in order to evade U.S. immigration laws; and
8. A grandparent, grandchild, nephew, niece, uncle, aunt, cousin, or parent-in-law.

Form I-130 Instructions 02/13/19

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General Instructions
USCIS provides forms free of charge through the USCIS website. In order to view, print, or fill out our forms, you should use the latest version of Adobe Reader, which can be downloaded for free at http://get.adobe.com/reader/. If you do not have Internet access, you may call the USCIS National Customer Service Center at 1-800-375-5283 and ask that we mail a form to you. For TTY (deaf or hard of hearing) call: 1-800-767-1833.
Signature. Each petition must be properly signed and filed. For all signatures on this petition, USCIS will not accept a stamped or typewritten name in place of a signature. A legal guardian may also sign for a mentally incompetent person.
Filing Fee. Each petition must be accompanied by the appropriate filing fee. (See the What Is the Filing Fee section of these Instructions.)
Biometric Services Fee. If you file this petition with USCIS, you do not need to include a biometric services fee at the time you submit your petition. If you are later notified that you must submit biometrics, you will receive a biometric services appointment notice with instructions on how to submit the additional biometric services fee. If you file this petition with an agency other than USCIS, please check with that agency to determine if and when you must submit a biometric services fee.
Evidence. At the time of filing, you must submit all evidence and supporting documentation listed in the General Requirements section of these Instructions. USCIS may issue a Notice of Intent to Deny (NOID) or a Denial Notice for petitions filed without the required supporting evidence.
Biometric Services Appointment. USCIS may require that you appear for an interview or provide fingerprints, photograph, and/or signature at any time to verify your identity, obtain additional information, and conduct background and security checks, including a check of criminal history records maintained by the Federal Bureau of Investigation (FBI), before making a decision on your application, petition, or request. After USCIS receives your petition and ensures it is complete, we will inform you in writing, if you need to attend a biometric services appointment. If an appointment is necessary, the notice will provide you the location of your local or designated USCIS Application Support Center (ASC) and the date and time of your appointment or, if you are currently overseas, instruct you to contact a U.S. Embassy, U.S. Consulate, or USCIS office outside the United States to set up an appointment.
If you are required to provide biometrics, at your appointment you must sign an oath reaffirming that:
1. You provided or authorized all information in the petition;
2. You reviewed and understood all of the information contained in, and submitted with, your petition; and
3. All of this information was complete, true, and correct at the time of filing.
If you fail to attend your biometric services appointment, USCIS may deny your petition.
Copies. You may submit legible photocopies of documents requested, unless the Instructions specifically state that you must submit an original document. USCIS may request an original document at the time of filing or at any time during processing of an application, petition, or request. If you submit original documents when not required, the documents may remain a part of the record, and USCIS will not automatically return them to you.
Translations. If you submit a document with information in a foreign language, you must also submit a full English translation. The translator must sign a certification that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English. The certification should also include the date, the translator’s signature and printed name, and may contain the translator’s contact information.
How To Fill Out Form I-130
1. Type or print legibly in black ink.

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2. If you need extra space to complete any item within this petition, use the space provided in Part 9. Additional Information or attach a separate sheet of paper; type or print your name and A-Number (if any) at the top of each sheet; indicate the Page Number, Part Number, and Item Number to which your answer refers; and sign and date each sheet.
3. Answer all questions fully and accurately. If a question does not apply to you (for example, if you have never been married and the question asks, “Provide the name of your current spouse”), type or print “N/A,” unless otherwise directed. If your answer to a question which requires a numeric response is zero or none (for example, “How many children do you have” or “How many times have you departed the United States”), type or print “None,” unless otherwise directed.
4. Enter dates in mm/dd/yyyy format. If you cannot provide an exact date, provide an approximate date in the same format and include an explanation in Part 9. Additional Information.
5. USCIS Online Account Number (if any). If you have previously filed an application, petition, or request using the USCIS online filing system (previously called USCIS Electronic Immigration System (USCIS ELIS)), provide the USCIS Online Account Number you were issued by the system. You can find your USCIS Online Account Number by logging in to your account and going to the profile page. If you previously filed certain applications, petitions, or requests on a paper form via a USCIS Lockbox facility, you may have received a USCIS Online Account Access Notice issuing you a USCIS Online Account Number. If you received such a notice, your USCIS Online Account Number can be found at the top of the notice. If you were issued a USCIS Online Account Number, enter it in the space provided at Part 2., Item Number 2. The USCIS Online Account Number is not the same as an A-Number.
6. Part 3. Biographic Information. Provide the biographic information requested in Part 3., Item Numbers 1. - 6. Providing this information as part of your petition may reduce the time you spend at your USCIS ASC appointment as described in the Biometric Services Appointment section of these Instructions.
A. Ethnicity and Race. Select the boxes that best describe your ethnicity and race.
Categories and Definitions for Ethnicity and Race
(1) Hispanic or Latino. A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. (NOTE: This category is only included under Ethnicity in Part 3., Item Number 1.)
(2) White. A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
(3) Asian. A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
(4) Black or African American. A person having origins in any of the black racial groups of Africa.
(5) American Indian or Alaska Native. A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.
(6) Native Hawaiian or Other Pacific Islander. A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
B. Height. Select the values that best match your height in feet and inches. For example, if you are five feet and nine inches, select “5” for feet and “09” for inches. Do not enter your height in meters or centimeters.
C. Weight. Enter your weight in pounds. If you do not know your weight, or need to enter a weight under 30 pounds or over 699 pounds, enter “000.” Do not enter your weight in kilograms.
D. Eye Color. Select the box that best describes the color of your eyes.
E. Hair Color. Select the box that best describes the color of your hair.

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7. Form I-94 Arrival-Departure Record. Complete Part 4., Item Numbers 46.b. - 50., of the petition regarding the admission or travel document for the beneficiary.
If U.S. Customs and Border Protection (CBP) or USCIS issued the beneficiary a Form I-94, Arrival-Departure Record, provide the beneficiary’s Form I-94 number and date that his or her authorized period of stay expires or expired (as shown on Form I-94). The Form I-94 number also is known as the Departure Number on some versions of Form I-94.
NOTE: If the beneficiary was admitted to the United States by CBP at an airport or seaport after April 30, 2013, he or she may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. The beneficiary may visit the CBP website at www.cbp.gov/i94 to obtain a paper version of his or her electronic Form I-94. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013 with a passport or travel document, who were issued a paper Form I-94 by CBP, may also be able to obtain a replacement Form I-94 from the CBP website without charge. If his or her Form I-94 cannot be obtained from the CBP website, it may be obtained by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS does charge a fee for this service.
Passport and Travel Document Numbers. Complete Part 4., Item Numbers 45. - 50., as applicable, if the beneficiary relative used a passport or travel document to travel to the United States, enter either the passport or travel document information in the appropriate space on the petition, even if the passport or travel document is currently expired.
8. Part 6. Petitioner’s Statement, Contact Information, Declaration, and Signature. Select the appropriate box to indicate whether you read this petition yourself or whether you had an interpreter assist you. If someone assisted you in completing the petition, select the box indicating that you used a preparer. Further, you must sign and date your petition and provide your daytime telephone number, mobile telephone number (if any), and email address (if any). Every petition MUST contain the signature of the petitioner (or parent or legal guardian, if applicable). A stamped or typewritten name in place of a signature is not acceptable.
9. Part 7. Interpreter’s Contact Information, Certification, and Signature. If you used anyone as an interpreter to read the Instructions and questions on this petition to you in a language in which you are fluent, the interpreter must fill out this section, provide his or her name, the name and address of his or her business or organization (if any), his or her daytime telephone number, his or her mobile telephone number (if any), and his or her email address (if any). The interpreter must sign and date the petition.
10. Part 8. Contact Information, Declaration, and Signature of the Person Preparing this Petition, if Other Than the Petitioner. This section must contain the signature of the person who completed your petition, if other than you, the petitioner. If the same individual acted as your interpreter and your preparer, that person should complete both Part 7. and Part 8. If the person who completed this petition is associated with a business or organization, that person should complete the business or organization name and address information. Anyone who helped you complete this petition MUST sign and date the petition. A stamped or typewritten name in place of a signature is not acceptable. If the person who helped you prepare your petition is an attorney or accredited representative whose representation extends beyond preparation of this petition, he or she may be obliged to also submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, along with your petition.
We recommend that you print or save a copy of your completed petition to review in the future and for your records. We recommend that you review your copy of your completed petition before you come to your
biometric services appointment at a USCIS ASC. At your appointment, USCIS will permit you to complete the petition process only if you are able to confirm, under penalty of perjury, that all of the information in your petition
is complete, true, and correct. If you are not able to make that attestation in good faith at that time, USCIS will require you to return for another appointment.

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General Requirements
1. Does approval of this petition mean that my family member is automatically a lawful permanent resident or they can immediately immigrate to the United States?
No. An approved petition does not give the beneficiary automatic lawful permanent resident status or permission to immediately immigrate to the United States.
2. When will a visa become available?
When a petition is approved for the spouse, unmarried children under 21 years of age, or parents of a U.S. citizen, these persons are classified as immediate relatives, which means visas are immediately available to them.
When a petition is approved for a U.S. citizen’s sibling or married or adult son or daughter, or for a lawful permanent resident’s spouse, child, or unmarried son or daughter, it is assigned to the appropriate visa preference category. Each year, a limited number of immigrant visas are available for each preference category. The visas are processed in the order in which the petitions are properly filed and accepted by us. To be considered properly filed, a petition must be fully completed and signed, and the filing fee must be paid.
For a monthly report on the dates when immigrant visas are available, call the U.S. Department of State at 1-202-663-1541, or visit their website at www.travel.state.gov.
3. What documents do you need to show that you are a U.S. citizen?
A. A copy of your birth certificate, issued by a civil registrar, vital statistics office, or other civil authority showing that you were born in the United States;
B. A copy of your naturalization certificate or certificate of citizenship issued by USCIS or the former Immigration and Naturalization Service (INS);
C. A copy of Form FS-240, Consular Report of Birth Abroad (CRBA), issued by a U.S. Embassy or U.S. Consulate;
D. A copy of your unexpired U.S. passport; or
E. An original statement from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.
If you do not have any of the above documents and you were born in the United States, see the What if an official document is not available section of these Instructions.
4. What documents do you need to show that you are a lawful permanent resident?
If you are a lawful permanent resident, you must file your petition with a copy of the front and back of your Permanent Resident Card (Form I-551). If you have not yet received your card, submit copies of your passport biographic page and the page showing admission as a lawful permanent resident, or other evidence of permanent resident status issued by USCIS or the former INS.
5. What documents do you need to prove family relationship?
You have to prove that there is a family relationship between you and the beneficiary. If you are filing for a relative listed below, submit the following documentation to prove the family relationship.
A. A spouse:
(1) A copy of your marriage certificate;
(2) If either you were or your spouse was previously married, submit copies of documents showing that each of the prior marriages was legally terminated; and
(3) You must submit two identical color passport-style photographs of yourself and your spouse (if he or she is in the United States) taken within 30 days of filing this petition. The photos must have a white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched.

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The two identical color passport-style photos must be 2 by 2 inches. The photos must be in color with full face, frontal view on a white to off-white background. Head height should measure 1 to 1 3/8 inches from top of hair to bottom of chin, and eye height is between 1 1/8 to 1 3/8 inches from bottom of photo. Your head must be bare unless you are wearing headwear as required by a religious denomination of which you are a member. Using a pencil or felt pen, lightly print your name and A-Number (if any) on the back of the photo.
NOTE: In addition to the required documentation listed above, you should submit one or more of the following types of documentation that may prove you have a bona fide marriage:
(1) Documentation showing joint ownership of property;
(2) A lease showing joint tenancy of a common residence, meaning you both live at the same address together;
(3) Documentation showing that you and your spouse have combined your financial resources;
(4) Birth certificates of children born to you and your spouse together;
(5) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship. Each affidavit must contain the full name and address of the person making the affidavit; date and place of birth of the person making the affidavit; and complete information and details explaining how the person acquired his or her knowledge of your marriage; or
(6) Any other relevant documentation to establish that there is an ongoing marital union.
NOTE: You must submit clear and convincing evidence that you and your spouse entered into the marriage in good faith and not for immigration purposes if you married your spouse while your spouse was the subject of an exclusion, deportation, removal, or rescission proceeding (including during the judicial review of any one of these proceedings); or you are a lawful permanent resident that obtained your permanent residence through a prior marriage that was not determined by the death of your spouse and you are filing your petition for your spouse that you were married within five years of obtaining your permanent residence.
B. A child and you are the mother: Submit a copy of the child’s birth certificate showing your name and the name of your child.
C. A child and you are the father: Submit a copy of the child’s birth certificate showing both parents’ names, your marriage certificate to the child’s mother, and proof of legal termination of the parents’ prior marriages, if any, issued by civil authorities.
D. A child born out of wedlock and you are the father: Submit evidence that you and the mother were married while the child was under 18 years of age, or submit evidence that the child was legitimated under the law of the child’s residence or domicile, or under the law of your residence or domicile, before the child reached 18 years of age. If your child was not legitimated before reaching 18 years of age, you must file your petition with copies of evidence that a bona fide parent-child relationship existed between you and the child before the child reached 21 years of age. This may include evidence that you lived with the child, supported him or her, or otherwise showed continuing parental interest in the child’s welfare.
E. A brother or sister: Submit a copy of your birth certificate and a copy of your brother’s or sister’s birth certificate showing that you have at least one common parent. If you and your brother or sister have a common father but different mothers, submit copies of the marriage certificates showing that your father was married to each mother, as well as copies of documents showing that any prior marriages of either your father or mothers were legally terminated. If you and your brother or sister are related through adoption or a stepparent, or if you have a common father and either of you were not legitimated before you turned 18 years of age, see Items D., H., and I. in these Instructions for additional information on proving your family relationship.
F. A mother: Submit a copy of your birth certificate showing your name and your mother’s name.

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G. A father: Submit a copy of your birth certificate showing the names of both parents. Also submit a copy of your parents’ marriage certificate establishing that your father was married to your mother. If either your mother or father were previously married, submit copies of documents showing that each of the prior marriages was legally terminated. If you are filing for a stepparent or adoptive parent, or if you are filing for your father and you were born out of wedlock, see Items D., H., and I. in these Instructions for additional information on proving your family relationship.
H. Stepparent/Stepchild: If your petition is based on a stepparent-stepchild relationship, you must file your petition with a copy of the marriage certificate of the stepparent to the child’s natural parent showing that the marriage occurred before the child turned 18 years of age, copies of documents showing that any prior marriages were legally terminated (if applicable), and a copy of the stepchild’s birth certificate.
I. Adoptive parent or adopted child: If you and the person you are filing for are related by adoption, you must submit a copy of the adoption decree showing that the adoption took place before the child turned 16 years of age.
If you adopted a child under 16 years of age, and you also adopted the older sibling of that child, you may file a petition for the older child if the adoption occurred before the older child turned 18 years of age. You must submit a copy of the adoption decree showing that the adoption of the sibling occurred before the sibling turned 18 years of age.
In either case, you must also submit copies of evidence that each child was in the legal custody of and resided with the parents who adopted him or her for at least two years before or after adoption. Only a court or recognized government entity may grant legal custody, and it is usually granted at the time the adoption is finalized. However, if legal custody is granted by a court or recognized government entity prior to the adoption, that time may count toward fulfilling the 2-year legal custody requirement.
6. Notice to persons filing for spouses, if you have been married less than two years.
If you have been married less than two years on the date your spouse has obtained permanent resident status, USCIS will grant your spouse conditional permanent resident status for two years under INA section 216. USCIS then requires both you and your spouse to file Form I-751, Petition to Remove Conditions on Residence, during the 90-day period immediately before your spouse’s conditional permanent resident status expires.
Conditional permanent residents have the same rights, privileges, responsibilities, and duties as all other lawful permanent residents. A conditional permanent resident is not limited in his or her right to apply for naturalization, file petitions on behalf of qualifying relatives, or reside permanently in the United States as an immigrant in accordance with U.S. immigration laws.
NOTE: If your spouse fails to timely file Form I-751 to remove the conditional basis of his or her spouse’s permanent resident status, USCIS will terminate his or her permanent resident status and begin removal proceedings.
7. What if a name has changed?
If either you or the person you are filing for is using a name that is not the same name shown on the relevant documents, you must file your petition with copies of the legal documents reflecting the name change, such as a marriage certificate, adoption decree, or court order.
8. What if an official document is not available?
In this situation, submit a statement from the appropriate civil authority certifying that the document or documents are not available. You must also submit secondary evidence, which may include one or more of the following records listed below.
A. Religious record: A copy of a document bearing the seal of the religious organization showing that the baptism, dedication, or comparable rite occurred within two months after birth, and showing the date and place of the child’s birth, date of the religious ceremony, and the names of the child’s parents.
B. School record: A letter from the authority (preferably the first school attended) showing the date of admission to the school, the child’s date of birth or age at that time, place of birth, and names of the parents.

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C. Census record: State or Federal census records showing the names, place of birth, date of birth, or the age of the person listed.
D. If records like those described above are not available, then you may submit two or more written statements from individuals who were living at the time and who have personal knowledge of the event you are trying to prove, such as the date and place of birth, marriage, or death. The individuals making the written statements do not have to be U.S. citizens. Each written statement must contain the following information regarding the individual making the written statement: his or her full name, address, date and place of birth, full information concerning the event, and complete details explaining how the individual acquired personal knowledge of the event.
Finally, each individual’s written statement must include the following declaration, “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [date], [signature].”
E. For parent-child relationships only: If other forms of evidence have proven inconclusive, the petitioner may submit on a voluntary basis other evidence of a birth parent and birth child relationship to include deoxyribonucleic acid (DNA) testing. DNA test results will only be accepted by USCIS from parentage-testing laboratories accredited by the American Association of Blood Banks (AABB). A list of laboratories can be viewed at www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx.

What Is the Filing Fee?
The filing fee for Form I-130 is $535. The filing fee for this petition cannot be waived. NOTE: The filing fee is not refundable, regardless of any action USCIS takes on this petition. DO NOT MAIL CASH. You must submit all fees in the exact amounts.
Use the following guidelines when you prepare your check or money order for the Form I-130: 1. The check or money order must be drawn on a bank or other financial institution located in the United States and must
be payable in U.S. currency; and 2. Make the check or money order payable to U.S. Department of Homeland Security.
NOTE: Spell out U.S. Department of Homeland Security; do not use the initials “USDHS” or “DHS.” 3. If you live outside the United States, contact the nearest U.S. Embassy or U.S. Consulate for instructions on the
method of payment.
Notice to Those Making Payment by Check. If you send us a check, USCIS will convert it into an electronic funds transfer (EFT). This means we will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will usually take 24 hours and your bank will show it on your regular account statement.
You will not receive your original check back. We will destroy your original check, but will keep a copy of it. If USCIS cannot process the EFT for technical reasons, you authorize us to process the copy in place of your original check. If your check is returned as unpayable, USCIS will re-submit the payment to the financial institution one time. If the check is returned as unpayable a second time, we will reject your petition and charge you a returned check fee.
How To Check If the Fees Are Correct Form I-130’s filing fee is current as of the edition date in the lower left corner of this page. However, because USCIS fees change periodically, you can verify that the fees are correct by following one of the steps below.
1. Visit the USCIS website at www.uscis.gov, select “FORMS,” and check the appropriate fee; or 2. Call the USCIS National Customer Service Center at 1-800-375-5283 and ask for the fee information. For TTY (deaf
or hard of hearing) call: 1-800-767-1833.

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Where To File?
Please see our website at www.uscis.gov/i-130 or call our National Customer Service Center at 1-800-375-5283 for the most current information about where to file this petition. For TTY (deaf or hard of hearing) call: 1-800-767-1833.
Address Change
A petitioner who is not a U.S. citizen must notify USCIS of his or her new address within 10 days of moving from his or her previous residence. For information on filing a change of address, go to the USCIS website at www.uscis.gov/addresschange or contact the USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833. NOTE: Do not submit a change of address request to USCIS Lockbox facilities because the Lockbox does not process change of address requests.
Processing Information
Initial Processing. Once USCIS accepts your petition we will check it for completeness. If you do not completely fill out this petition, you will not establish a basis for your eligibility and USCIS may reject or deny your petition. Requests for More Information. We may request that you provide more information or evidence to support your petition. We may also request that you provide the originals of any copies you submit. USCIS will return any requested originals when they are no longer needed. Requests for Interview. We may request that you appear at a USCIS office for an interview based on your petition. At the time of any interview or other appearance at a USCIS office, we may require that you provide your fingerprints, photograph, and/or signature to verify your identity and/or update background and security checks. Decision. The decision on Form I-130 involves a determination of whether you have established eligibility for the immigration benefit you are seeking. USCIS will notify you of the decision in writing.
USCIS Forms and Information
To ensure you are using the latest version of this petition, visit the USCIS website at www.uscis.gov where you can obtain the latest USCIS forms and immigration-related information. If you do not have internet access, you may order USCIS forms by calling the USCIS Contact Center at 1-800-375-5283. The USCIS Contact Center provides information in English and Spanish. For TTY (deaf or hard of hearing) call: 1-800-767-1833. Instead of waiting in line for assistance at your local USCIS office, you can schedule an appointment online at www.uscis.gov. Select “Schedule an appointment online” and follow the screen prompts to set up your appointment. Once you finish scheduling an appointment, the system will generate an appointment notice for you.

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Penalties
If you knowingly and willfully falsify or conceal a material fact or submit a false document with your Form I-130, we will deny your Form I-130 and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution.
USCIS Compliance Review and Monitoring
By signing this petition, you have stated under penalty of perjury (28 U.S.C. section 1746) that all information and documentation submitted with this petition are complete, true, and correct. You also authorize the release of any information from your records that USCIS may need to determine your eligibility for the immigration benefit you are seeking and consent to USCIS verifying such information. The Department of Homeland Security (DHS) has the authority to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. USCIS’ legal authority to verify this information is in 8 U.S.C. sections 1103, 1155, and 1184, and 8 CFR Parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case is decided. Agency verification methods may include, but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile, other electronic transmission, or telephone; unannounced physical site inspections of residences and locations of employment; and interviews. USCIS will use information obtained through verification to assess your compliance with the laws and to determine your eligibility for an immigration benefit. Subject to the restrictions under 8 CFR 103.2(b)(16), USCIS will provide you with an opportunity to address any adverse or derogatory information that may result from a USCIS compliance review, verification, or site visit after a formal decision is made on your case or after the agency has initiated an adverse action which may result in revocation or termination of an approval.
DHS Privacy Notice
AUTHORITIES: The information requested on this petition, and the associated evidence, is collected under the Immigration and Nationality Act (INA) section 204.
PURPOSE: The primary purpose for providing the requested information on this petition is to determine if you have established eligibility for the immigration benefit for which you are filing. DHS will use the information you provide to grant or deny the immigration benefit you are seeking.
DISCLOSURE: The information you provide is voluntary. However failure to provide the requested information, including your Social Security number, and the requested evidence, may delay a final decision in your case or result in denial of your petition.
ROUTINE USES: DHS may share the information you provide on this form with other Federal, state, local, and foreign government agencies and authorized organizations. DHS follows approved routine uses described in the associated published system of records forms [DHS/USCIS–001 – Alien File, Index, and National File Tracking System and DHS/USCIS–007 – Benefits Information System] and the published privacy impact assessments [DHS/USCIS/PIA003 Integrated Digitization Document Management Program (IDDMP), DHS/USCIS/PIA-016(a) Computer Linked Application Information Management System and Associated Systems, and DHS/USCIS/PIA-051 Case and Activity Management for International Operations], which you can find at www.dhs.gov/privacy. DHS may also share the information, as appropriate, for law enforcement purposes or in the interest of national security.

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Paperwork Reduction Act
An agency may not conduct or sponsor an information collection, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The public reporting burden for Form I-130 is estimated at 2 hours per response and Form I-130A is estimated at 50 minutes per response, including the time for reviewing instructions, gathering the required documentation and information, completing the forms, preparing statements, attaching necessary documentation, and submitting the forms. The collection of biometrics is estimated to require 1 hour and 10 minutes. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: U.S. Citizenship and Immigration Services, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Ave NW, Washington, DC 20529-2140; OMB No. 1615-0012. Do not mail your completed Form I-130 or Form I-130A to this address.
Checklist
For all Form I-130 petitioners:
□□ Did you answer each question on Form I-130? □□ Did you sign and date the petition? □□ Did you enclose the correct filing fee for each petition? □□ Did you submit proof of your U.S. citizenship or lawful permanent resident status? □□ Did you submit other required supporting evidence? □□ If you have an attorney or accredited representative, did you include a completed Form G-28?
For Form I-130 spouse petitioners:
□□ Did you include two photographs of your spouse beneficiary? □□ Did you include a completed and signed Form I-130A? □□ Did you include two photographs of you (spouse petitioner)?

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 Case: 1:20-cv-02531 Document #: 20 Filed: 05/02/20 Page 1 of 20 PageID #:144

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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 TREASURY; the U.S.

)

INTERNAL REVENUE SERVICE; and the

)

UNITED STATES OF AMERICA,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC JURY DEMANDED

SECOND AMENDED CLASS ACTION COMPLAINT

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

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

Khalaf & Abuzir, LLC, and submits his second amended 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

TREASURY; the U.S. INTERNAL REVENUE SERVICE; and the UNITED STATES OF

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AMERICA, (hereinafter collectively referred to as “Defendants”). In furtherance whereof, Plaintiff states as follows:
NATURE OF THE CASE 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.
PARTIES 1. Plaintiff, JOHN DOE, is a U.S. citizen who at all times mentioned in this Complaint resided in the Northern District of Illinois. 2. That “John Doe” is not Plaintiff’s actual name, but rather is a fictitious name for an actual person as herein described, in order to protect his actual identity, which is protected under the Fifth Amendment and the facts alleged herein. 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 into law the S. 3548-Coronavirus Aid, Relief, and Economic Security Act (hereinafter “CARES Act) on March 27, 2020. 4. Defendant, MITCH MCCONNELL, in his individual and official capacity as United States Senator, is the Sponsor of the S. 3548-CARES Act, introduced in the Senate on March 19, 2020 and signed into law on March 27, 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
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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 Service. 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 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 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.
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9. Defendant, UNITED STATES OF AMERICA, acted in respect to this matter through its agencies, U.S. DEPARTMENT OF THE TREASURY and U.S. INTERNAL REVENUE SERVICE.
10. That Defendants are each sued in their individual and official capacities and are the three persons and/or offices 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 Federal Question Jurisdiction pursuant to 28 U.S.C. § 1331 because the case arises under the Constitution, laws, or treaties of the United States. 13. Venue is appropriate in the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. §1391(b) because a substantial part of the events giving rise to the claims alleged herein occurred in this judicial district. 14. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1367, which gives the district court supplemental jurisdiction over state law claims.
STATEMENT OF FACTS 15. 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 § 6428.2020 of the CARES Act (“Recovery Rebates For Individuals”). 16. The CARES Act was introduced in the United States Senate (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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17. 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).
18. The CARES Act is to provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic (“COVID-19”). S. 3548, 116th Cong. (2020).
19. Sec. 6428 of the CARES Act authorizes the Internal Revenue Service to disburse $1,200.00 to Americans 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”). S. 3548, 116th Cong. § 6428 (2020).
20. Sec. 6428 of the CARES Act authorizes the Internal Revenue Service to disburse $2,400.00 to Americans filing jointly when earning up to $150,000.00 in adjusted gross income. S. 3548, 116th Cong. § 6428 (2020).
21. The Stimulus Checks includes Defendant Trump’s signature. Defendant Mnuchin admits that the inclusion of Defendant Trump’s signature on the Stimulus Checks was Defendant Mnuchin’s idea.
22. 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).
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23. 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, 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/2020-04-20/u-scitizens-coronavirus-stimulus-checks-spouses-immigrant (last visited April 24, 2020).
24. 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 April 24, 2020).
25. 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. “It’s a deliberately cruel carve-out,” said Manar Waheed, senior legislative and advocacy counsel with the American Civil Liberties Union. Jarvie, supra.
26. Putative class 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 he files his taxes jointly with his spouse, an immigrant who does not have a Social Security number.
27. Plaintiff Doe is married to an immigrant who pays taxes and files tax returns with an Individual Taxpayer Identification Number. The couple file joint tax returns and neither are in the military.
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28. Had Plaintiff not been married to an immigrant with an Individual Taxpayer Identification Number, Plaintiff and his children would have otherwise qualified for a Stimulus Check.
CLASS ACTION ALLEGATIONS 29. Plaintiff brings this claim individually and on behalf of the following putative classes:
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. 30. The Class (“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. 31. There are more than 1.2 million Americans that are married to immigrants who lack Social Security numbers. 32. 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. 33. Class Members can be identified through Defendants’ records. 34. 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. 35. 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:
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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 immunities secured by the Constitution of the United States;
d. Whether Class members are entitled to actual damages, statutory damages, and/or punitive damages as a result of Defendants’ wrongful conduct;
e. Whether Class Members are entitled to injunctive relief to redress the imminent and currently ongoing harm faced as a result of their exclusion from the CARES Act; and
f. Whether or not Class Members are entitled to Declaratory Judgment relating to their classification and exclusion, among others, under the CARES Act.
36. Plaintiff will fairly and adequately represent the Class Members. Plaintiff has no interests that conflict with the interests of Class Members. Plaintiff has retained counsel experienced in handling civil rights cases and class actions. Neither Plaintiff nor his or her counsel has any interests that might cause them not to pursue these claims vigorously.
37. 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.
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COUNT I Violation(s) of United States Constitution
(On Behalf of Plaintiff and the Class) 38. Plaintiff re-alleges and incorporates paragraphs 1-37 of this Complaint as though fully set forth herein. 39. 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, and Acting Secretary of the U.S. Department of Treasury, violated Plaintiff’s procedural and substantive due process rights and deprived Plaintiff of his rights, privileges, and immunities secured by the Constitution of the United States. 40. The Defendants have engaged and continue to engage in behavior that violates Plaintiff’s constitutional property interest rights individually and as a taxpayer in the United States and have thereby irreparably injured Plaintiff. 41. Defendants, acting under color of law, have violated rights secured to Plaintiff by the First, Fifth, and Fourteenth Amendments to the United States Constitution including the right of association, 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 him as equal to his fellow United States citizens based solely on whom he chose to marry. 42. Plaintiff has lawfully filed taxes in the United States, yet he is being denied the rights and privileges under the CARES Act. 43. Similarly situated U.S. citizens who are not married to immigrants and who filed joint tax returns have not been denied such rights and privileges under the “CARES” Act.
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44. Plaintiff brings this action against Defendants in their individual and official capacities for purposes of seeking declaratory and injunctive relief and challenges the practices and policies of discrimination both facially and as applied to him, individually, and as the putative Class Plaintiff.
45. 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.
46. 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 State, 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 U.S. 200 (1995) (applying strict scrutiny to the federal government based on equal protection grounds).
Marriage as a Fundamental Right Emanating From Our First, Fifth, and Fourteenth Amendments
47. 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
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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).
48. Discrimination based on the fundamental right to marry is presumptively unconstitutional and subject to strict scrutiny.
49. 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.
50. 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).
51. 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.
52. 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)
53. Defendants discriminate against Plaintiff on the basis of their fundamental right of marriage.
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54. 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; Due Process Clause of the Fifth Amendment; Equal Protection and Privileges and Immunities afforded under the Fourteenth Amendment under Reverse Incorporation Doctrine; and the well-established fundamental right to marry.
55. The First, Fifth, and Fourteenth Amendments all amount to well-established constitutional rights of which a reasonable person would have known was violated personally and officially by the Defendants.
56. 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.
57. The Defendants treat Plaintiff differently than U.S. Citizens who file jointly with other U.S. Citizens, who are similarly situated.
58. The CARES Act singles out law-abiding and tax-paying U.S. Citizens by excluding them from 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.
59. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
60. Accordingly, the CARES Act provision at issue violates the First Amendment to the United States Constitution; 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.
Alienage as a Suspect Class
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61. “[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).
62. Discrimination based on the alienage of a U.S. citizen’s spouse is presumptively unconstitutional and subject to strict scrutiny.
63. Defendants discriminate against Plaintiff on the basis of the alienage of their spouse.
64. The CARES Act provision at issue, on its face and as applied, or threatened to be applied, violates the First Amendment to the United States Constitution; 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.
65. 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.
66. The Defendants treat Plaintiff differently than U.S. Citizens who marry other U.S. Citizens, who are similarly situated.
67. Sec. 6428 is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.
68. Accordingly, the CARES Act provision at issue violates the First Amendment of the United States Constitution; Due Process Clause of the Fifth Amendment to the United States
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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 Action for Temporary Restraining Order (“TRO”); Preliminary and Permanent Injunction; and Declaratory Relief Against All Defendants
(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. 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 CARES Act provision at issue in this case, as applied to Plaintiff and the putative class, violates the constitutional and statutory rights of Plaintiff and denies Plaintiff the privileges and immunities to which he would otherwise be entitled.
71. Plaintiff has no adequate remedy at law and is suffering irreparable harm. There is no harm to the Defendants by this Court granting an injunction prohibiting enforcement of the challenged CARES Act provision. 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.
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72. 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.
73. 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.
74. 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.
75. Entering the injunctive relief that Plaintiff is seeking will cause the Defendants no harm.
76. 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.
77. There is a reasonable likelihood that the Plaintiff will succeed on the merits of his claims.
PRAYER FOR RELIEF WHEREFORE, Plaintiff JOHN DOE, individually and on behalf of the proposed Class, by and through his attorneys, Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC, prays for relief as follows:
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Case: 1:20-cv-02531 Document #: 20 Filed: 05/02/20 Page 16 of 20 PageID #:159
a. For an Order certifying this action as a class action and appointing Plaintiff and his Counsel to represent the Class;
b. An Order granting Blaise & Nitschke, P.C. and Khalaf & Abuzir, LLC as class counsel;
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 to CARES Act Section 2101 to 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
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“(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)). 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 is unconstitutional and should not be enforced; e. Issue a declaratory judgment that the CARES Act provision at issue in this case is subject to strict scrutiny; f. Issue a declaratory judgment that the CARES Act provision at issue in this case, 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 putative class;
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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

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 putative

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 request 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 2, 2020

Respectfully submitted, John Doe, individually and on behalf of others similarly situated (collectively “Their”).

By: /s/ Lana B. Nassar Lana B. Nassar One of Their attorneys

By: /s/ Vivian Khalaf Vivian Khalaf One of Their attorneys

By: /s/ Heather L. Blaise Heather L. Blaise One of Their attorneys

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Lana B. Nassar, 6319396 Vivian Khalaf, 6210668 Heather L. Blaise, 6298241 Elisabeth A. Gavin, 6297740 Omar Abuzir, 6257708 Thomas J. Nitschke, 6225740

By: /s/ Elisabeth A. Gavin Elisabeth A. Gavin One of Their attorneys
By: /s/ Omar Abuzir Omar Abuzir One of Their attorneys
By: /s/ Thomas J. Nitschke Thomas J. Nitschke One of Their attorneys
Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com
Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com

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CERTIFICATE OF SERVICE
The undersigned certifies that on the 2nd day of May, 2020, she caused the foregoing instrument to be electronically filed with the Clerk of the United States District Court for the Northern District of Illinois 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 lnassar@blaisenitschkelaw.com ARDC No. 6319396

/s/ Lana B. Nassar Lana B. Nassar

20

 
 Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 1 of 45 PageID #:165

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

JOHN DOE,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, ET AL.,

)

)

Defendants.

)

_______________________________________)

Case No. 1:20-CV-2531

UNITED STATES’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Defendant United States of America, named and sued as 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; Steven

Mnuchin, in his individual and official capacity as the 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 (collectively “Defendant” or “Government”), submits this memorandum in

opposition to Plaintiff’s motion for a temporary restraining order (Dkt. 13).

Respectfully submitted,
RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General
/s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov

Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 2 of 45 PageID #:166
Table of Contents
Table of Authorities ....................................................................................................................... iii BACKGROUND .............................................................................................................................1 1. The CARES Act...................................................................................................................1
a. History and purpose of the statute............................................................................1 b. 26 U.S.C. § 6428......................................................................................................2 c. Eligibility for the CARES Act credit .......................................................................3 2. Other Eligibility Limitations Based on Social Security Number.........................................4 a. Economic Stimulus Act of 2008 (“ESA”) ...............................................................4 b. Earned Income Tax Credit .......................................................................................5 c. Other limitations based on marital status, alienage, and SSN..................................6 3. The Complaint and Motion for Preliminary Injunction.......................................................6 ARGUMENT ...................................................................................................................................8 I. Legal Standard for a Preliminary Injunction .......................................................................8 II. Plaintiff Cannot Establish a Likelihood of Success on the Merits.......................................9 A. This Court does not have subject matter jurisdiction over Plaintiff’s claims. .........9
1. 28 U.S.C. §§ 1331, 1367, and 2201 do not confer jurisdiction. ................10 2. Plaintiff may only proceed through a 26 U.S.C. § 7422 refund suit..........11 3. The Court does not have jurisdiction under the APA ................................13 4. A damages remedy under Bivens is not available.......................................14 B. Plaintiff does not have standing to bring this lawsuit. ..........................................14 1. Plaintiff has not been denied the CARES Act credit .................................15 2. Plaintiff may be, or may become, eligible for a CARES Act credit ..........17 C. Plaintiff has not raised a valid constitutional claim. .............................................18 1. Reasonable basis review applies to tax statutes. ........................................18 2. Section 6428(g)(1) does not infringe upon Plaintiff’s right to marry ........20
a. Distinctions based on marital status are subject to lower scrutiny than statutes affecting the right to marriage.....................20
b. The Code permissibly distinguishes on marital status...................21 c. Section 6428(g)(1) is a reasonable restriction based on tax
filing status and does not interfere with the right to marry............23 3. Section 6428(g) is not an improper classification based on alienage ........25
a. The CARES Act does not contain any alienage classification ......25
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Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 3 of 45 PageID #:167 b. Section 6428(g)’s classifications do not violate the Constitution ........................................................................................................27
4. Section 6428(g) does not violate the First Amendment.............................30 IV. Plaintiff Will Not Suffer Irreparable Harm Absent a Preliminary Injunction. ..................31 V. Plaintiff is Not Entitled to a TRO Because He Has Adequate Remedies ..........................33 VI. The Equities and Public Interest Favor Denying a TRO ...................................................34 VII. Class Certification is Premature and Unnecessary at This Stage of the Case. ..................34 CONCLUSION ..............................................................................................................................35
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Table of Authorities Cases
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)................................................................. 15 Arizona v. United States, 567 U.S. 387 (2012) ............................................................................. 27 Arvanis v. Noslo Eng’g Consultants, Inc., 739 F.2d 1287 (7th Cir. 1984) ................................... 10 Balistrieri v. United States, 303 F.2d 617 (7th Cir. 1962)............................................................ 11 Barclay & Co. v. Edwards, 267 U.S. 442 (1924) ......................................................................... 20 Barr v. Commissioner, 51 T.C. 693 (1969) .................................................................................. 29 Barter v. United States, 550 F.2d 1239 (7th Cir. 1977).......................................................... 21, 22 Bhargava v. Comm’r, T.C. Memo. 1978-197 (1978) ................................................................... 28 Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971).............. 10 Black Bear Sports Group, Inc. v. Amateur Hockey Ass’n of Ill., Inc.,
2019 WL 2060934 (N.D. Ill. May 9, 2019) .............................................................................. 17 Black v. Comm’r, 69 T.C. 505 (1977)........................................................................................... 28 Bowen v. Massachusetts, 487 U.S. 879 (1988)............................................................................. 13 Bowen v. Roy, 476 U.S. 693 (1986) .............................................................................................. 29 Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .......................................................................... 30 Brest v. Lewis, 2009 WL 4679649 (N.D. Ill. Dec. 7, 2009) ......................................................... 12 Brushaber v. Union P.R. Co., 240 U.S. 1 (1916).................................................................... 19, 29 Califano v. Jobst, 434 U.S. 47 (1978)..................................................................................... 21, 23 Califano v. Sanders, 430 U.S. 99 (1977) ...................................................................................... 15 Cameron v. IRS, 773 F.2d 126 (7th Cir. 1985) ............................................................................. 14 Carlson v. Green, 446 U.S. 14 (1980) .......................................................................................... 14 Ciechon v. City of Chicago, 634 F.2d 1055 (7th Cir. 1980) ......................................................... 32 City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999) ...................................................... 18, 27 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................... 28
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Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 5 of 45 PageID #:169
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .................................................................... 15 Comm’r v. Kowalski, 434 U.S. 77 (1977)..................................................................................... 25 Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332 (2006) ............................................................... 14 Dandridge v. Williams, 397 U.S. 471 (1970) ............................................................................... 18 Doe v. Village of Deerfield, 819 F.3d 372 (7th Cir. 2016) ............................................................. 7 Druker v. Comm’r, 697 F.2d 46 (2d Cir. 1982).................................................................... passim. Edwards v. U.S. Dep’t of Justice, 43 F.3d 312 (7th Cir. 1994) ...................................................... 9 EnVerve, Inc. v. Unger Meat Co., 779 F. Supp. 2d 840 (N.D. Ill. 2011) ..................................... 31 F.A.A. v. Cooper, 566 U.S. 284 (2012)........................................................................................... 9 F.D.I.C. v. Meyer, 510 U.S. 471 (1994) ....................................................................................... 14 Fatani v. I.R.S., 2009 WL 763059 (D. Utah Mar. 23, 2009) ........................................................ 12 FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ................................................................... 28 Frerck v. John Wiley & Sons, Inc., 850 F. Supp. 2d 889 (N.D. Ill. 2012).................................... 32 Gaylor v. Mnuchin, 919 F.3d 420 (7th Cir. 2019) ........................................................................ 17 Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc.,
549 F.3d 1079 (7th Cir. 2008) .......................................................................................... 8, 9, 34 Golberg v. United States, — U.S. —, 138 S. Ct. 1564 (2018) ..................................................... 11 Goldberg v. United States, 881 F.3d 529...................................................................................... 11 Goldberg v. United States, 2019 WL 1317741 (N.D. Ill. Mar. 22, 2019) .................................... 10 Graham v. Med. Mut. of Ohio, 130 F.3d 293 (7th Cir. 1997)....................................................... 31 Greene-Thapedi v. United States, 549 F.3d 530 (7th Cir. 2008) .................................................. 12 Griffin v. Richardson, 346 F. Supp. 1226 (D. Md. 1972)............................................................. 18 Griswold v. Connecticut, 381 U.S. 479 (1965)............................................................................. 30 Haas v. Schalow, 172 F.3d 53....................................................................................................... 14 Hall v. United States, 1983 WL 1583 (N.D. Ill. Feb. 24, 1983) ................................................... 13 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................. 14
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Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 6 of 45 PageID #:170
Hefti v. I.R.S., 8 F.3d 1169 (7th Cir. 1993)................................................................................... 12 Hoelscher v. United States, 2018 WL 3466936 n.1 (W.D. Wis. July 18, 2018) .......................... 11 Hofstetter v. Commissioner 98 T.C. 695 (1992) ........................................................................... 28 Hooper v. California, 155 U.S. 648 (1895) .................................................................................. 18 INS v. Chadha, 462 U.S. 919 (1983) ............................................................................................ 18 John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) ............................................. 11 Johnson v. United States, 422 F. Supp. 958 (N.D. Ind. 1976).............................................. passim. Kentucky v. Graham, 473 U.S. 159 (1985)................................................................................... 14 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ................................................. 9 Lane v. Pena, 518 U.S. 187 (1996)................................................................................................. 9 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ...................................... 14 Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)................................................................ 21 Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001)................................................................... 25, 29 Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911)......................................................... 18 Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988 (N.D. Ill. 2001)........................................... 8 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 15 Macklin v. United States, 300 F.3d 814 (7th Cir. 2002) ................................................................. 9 Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978) ........................................................... passim. Matter of Laureano, 19 I & N. Dec. 1 (B.I.A. Dec. 12, 1983) ..................................................... 32 Mazurek v. Armstrong, 520 U.S. 968 (1997) .................................................................................. 8 McElrath v. Califano, 615 F.2d 434 (7th Cir. 1980) ........................................................ 25, 26, 27 Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 (7th Cir. 2011) ....................................... 13 Moretrench Am. Corp. v. S.J. Groves and Sons Co., 839 F.2d 1284 (7th Cir. 1988)................... 32 Mueller v. Allen, 463 U.S. 388 (1983) .......................................................................................... 19 NAACP v. State of Alabama, 357 U.S. 449 (1958)....................................................................... 30
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Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 7 of 45 PageID #:171
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).................................................. 18, 29 Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) ............................................... 15 Palmer v. Comm’r, 62 F. App’x 682 (7th Cir. 2003) ................................................................... 10 Petit v. I.R.S., 1983 WL 1612 (N.D. Ill. May 12, 1983) ............................................................... 13 Protamek Indus. Ltd. v. Equitrac Corp., 300 F.3d 808 (7th Cir. 2012)........................................ 33 Raines v. Byrd, 521 U.S. 811 (1997) ............................................................................................ 15 Regan v. Taxation With Representation, 461 U.S. 540 (1983)..................................................... 19 Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014)................................................... 16, 17 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) ................................................................ 15 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .............................................................................. 30 Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984)....................................... 8 Sampson v. Murray, 415 U.S. 61 (1974) .......................................................................... 31, 32, 33 San Antonio Ind. Sch. District v. Rodriguez, 411 U.S. 1 (1973)....................................... 18, 19, 31 Sarmiento v. United States, 678 F.3d 147 (2d Cir. 2012) ..................................................... 4, 5, 11 Schinasi v. Comm’r, 53 T.C. 382 (1969) .......................................................................... 21, 24, 28 Schweiker v. Wilson, 450 U.S. 221 (1981) ................................................................................... 18 Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)............................................................... 16 Toll v. Moreno, 458 U.S. 1 (1982) ................................................................................................ 27 U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) ....................................... 13 Uehlein v. Jackson Nat’l Life Ins. Co., 794 F.2d 300 (7th Cir. 1986) .......................................... 32 United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008)................................ 11, 12, 13 United States v. Dalm, 494 U.S. 596 (1990)................................................................................. 11 United States v. Felt & Tarrant Mfg., 283 U.S. 269 (1931) ......................................................... 12 United States v. Md. Savings-Share Ins. Corp., 400 U.S. 4 (1970) .............................................. 19 Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ........................................................................ 8
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Vaden v. Discover Bank, 556 U.S. 49 (2009) ............................................................................... 11 Valencia v. City of Springfield, Ill., 883 F.3d 959 (7th Cir. 2018) ................................................. 8 Villars v. Kubiatowski, 2017 WL 4269008 (N.D. Ill. Sept. 26, 2017) ......................................... 11 Weinberger v. Salfi, 422 U.S. 749 (1975)..................................................................................... 28 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) ....... 33 Whitmore v. Arkansas, 495 U.S. 149 (1990) .......................................................................... 15, 17 Wiemerslage v. United States, 838 F.2d 899 (7th Cir. 1988) ....................................................... 13 Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7 (2008) .............................................. 8, 32 Zablocki v. Redhail, 434 U.S. 374 (1978)................................................................... 20, 21, 23, 31 Ziglar v. Abbasi, — U.S. —, 137 S. Ct. 1843 (2017) ................................................................... 14
Statutes 5 U.S.C. § 702......................................................................................................................... 10, 13 5 U.S.C. § 704............................................................................................................................... 13 26 U.S.C. § 1....................................................................................................................... 6, 21, 22 26 U.S.C. § 24................................................................................................................................. 6 26 U.S.C. § 32............................................................................................................................. 4, 6 26 U.S.C. § 107............................................................................................................................. 16 26 U.S.C. § 152............................................................................................................................. 28 26 U.S.C. § 6013..................................................................................................................... 24, 28 26 U.S.C. § 6428................................................................................................................... passim. 26 U.S.C. § 6511........................................................................................................................... 12 26 U.S.C. § 6532........................................................................................................................... 12 26 U.S.C. § 7422................................................................................................................... passim. 26 U.S.C. § 7701..................................................................................................................... 26, 27 28 U.S.C. § 1367............................................................................................................................. 9 28 U.S.C. § 2201........................................................................................................................... 10 28 U.S.C. § 1331.................................................................................................................... i, 9, 10 28 U.S.C. § 1346........................................................................................................................... 12 42 U.S.C. § 1983........................................................................................................................... 10
vii

Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 9 of 45 PageID #:173 Pub. L. No. 110-185........................................................................................................................ 4 Pub. L. No. 116-136.................................................................................................................... 1, 9
Rules Fed. R. Civ. P. 4.............................................................................................................................. 6
Regulations and Other Authorities 20 C.F.R. § 422.104 ................................................................................................................ 26, 27 26 C.F.R. § 1.1-1........................................................................................................................... 25 26 CFR §§ 301.7701 ..................................................................................................................... 27 61 Fed. Reg. 26788 ....................................................................................................................... 26 IRS Pub. 519 ................................................................................................................................. 27
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John Doe attempts to invalidate certain eligibility requirements for the refundable tax credit provision within the recently enacted Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). He seeks an extraordinary temporary restraining order (“TRO”) that would judicially rewrite the Act, prevent Congress from passing certain amendments to it or approving similar legislation, and require Congress to appropriate or escrow funds for individuals who were excluded from the Act’s refundable tax credit. See Dkt. 13.
Doe’s motion should be denied. First, he cannot establish a likelihood of success on the merits. The Court has no jurisdiction to consider his underlying claims. He also fails to state a claim that the CARES Act violates the right to marriage or the First Amendment, or that it creates an impermissible classification based on alienage. Significantly, since 1996, Congress has included nearly-identical eligibility requirements in other tax statutes. Second, Doe will not suffer irreparable injury before his claims are considered, because monetary relief would remedy his alleged harm if he prevails. Finally, he has non-equitable remedies because he can claim a credit under the CARES ACT by filing his tax return separately from his wife, or file a tax refund suit under 26 U.S.C. § 7422.
BACKGROUND 1. The CARES Act
a. History and purpose of the statute In order to deliver economic assistance and other support to individuals, families, businesses, and health-care providers during the COVID-19 coronavirus pandemic, Congress passed the bipartisan CARES Act, Pub. L. No. 116-136, 134 Stat. 281, which the President signed into law on March 27, 2020. The Act provides $2 trillion in economic relief for individuals, loans for small businesses, support for hospitals and other medical providers, and
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various types of aid for impacted businesses and industries. b. 26 U.S.C. § 6428 At issue here, the CARES Act creates a refundable tax credit by the addition of 26 U.S.C.
§ 6428 (the “CARES Act credit”) to the Internal Revenue Code. The CARES Act credit delivers fiscal stimulus to the American economy. Section 6428(a) affords an eligible individual a refundable tax credit against the individual’s federal income tax liability for his or her “first taxable year beginning in 2020.” Eligible individuals are entitled to a credit of $1,200, or $2,400 in the case of eligible individuals filing a joint return, and $500 per qualifying child. See id. The CARES Act credit is treated as an overpayment of a taxpayer’s income tax liability. See id. §§ 6428(a), (e), (f).
To expedite the economic stimulus and provide relief to eligible taxpayers, the CARES Act credit is implemented, in part, through advance refunds, also referred to as economic impact payments. Section 6428(f) provides that an eligible individual may receive an advance refund of the CARES Act credit during 2020. Each eligible individual is treated as having made a payment against his or her 2019 federal income tax liability. This treatment enables the IRS to issue an advance refund of the CARES Act credit.
Section 6428(f)(5) allows the Secretary of the Treasury to compute and make advance payment of the CARES Act credit based on the 2018 tax return for individuals who have not filed their 2019 income tax returns. Section 6428(f)(3)(A) provides that advance payments are to be made “as rapidly as possible,”1 but does not confer upon eligible individuals any justiciable right to payment of an advance refund. Nor does the Act confer any right to receive an advance
1 The IRS processed CARES Act credits worth more than $200 billion to approximately 130 million individuals in the program’s first four weeks. See https://www.irs.gov/newsroom /treasury-irs-release-latest-state-by-state-economic-impact-payment-figures.
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refund at a particular time or in a particular manner. Many eligible individuals have not yet received an advance refund or have received a different amount than they expected. See https://www.irs.gov/newsroom/why-the-economic-impact-payment-amount-could-be-differentthan-anticipated. Some taxpayers will have to wait until they file their 2020 tax return in 2021 to claim and receive the credit or an additional amount. See https://www.irs.gov/newsroom/vassi-recipients-with-eligible-children-need-to-act-by-may-5-to-quickly-add-money-to-theirautomatic-economic-impact-payment-plus-500-push-continues. If the IRS does not issue an advance refund to an individual who is eligible for the CARES Act credit, there is no statutory mechanism to compel advance payment. The statute provides that any advance refund will be reconciled with the CARES Act credit reported on the taxpayer’s 2020 tax return next year. See 26 U.S.C. §§ 6428(e).
c. Eligibility for the CARES Act credit Not every taxpayer is entitled to a CARES Act credit. The credit is limited based upon a taxpayer’s adjusted gross income, phasing out for joint tax return filers with an adjusted gross income over $150,000, head of household filers with an adjusted gross income over $112,500, and all other filers with an adjusted gross income over $75,000. See 26 U.S.C. § 6428(c). The CARES Act credit is available only to a statutorily-defined “eligible individual.” Section 6428(d) defines an eligible individual as any individual other than (1) a nonresident alien individual, (2) an individual for whom a dependent deduction is allowable to another taxpayer, or (3) an estate or trust. Plaintiff does not challenge this provision. Rather, he challenges section 6428(g) which, in relevant part, disallows a credit to an eligible individual who does not include on his or her tax return valid identification numbers for the taxpayer, his or her spouse (if filing a joint return), and any qualifying child claimed on the return. See 26 U.S.C. § 6428(g)(1).
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A “valid identification number” is defined as a social security number (“SSN”) or, in the case of a qualifying child who was adopted or lawfully placed for legal adoption, his or her adoption taxpayer identification number. See 26 U.S.C. § 6428(g)(2). The SSN limitation of section 6428(g)(1)(B) does not apply if at least one spouse was a member of the Armed Forces of the United States during the taxable year and at least one spouse provides a valid identification number. See 26 U.S.C. § 6428(g)(3). Section 6428(g) allows an otherwise eligible U.S. Citizen married to a spouse without a valid SSN to file a separate return and obtain the credit. 2. Other Eligibility Limitations Based on Social Security Number
The CARES Act’s eligibility and SSN restrictions are not unique. Changes to the Internal Revenue Code included in the Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613 (Feb. 13, 2008) (the “ESA”), and 1996 amendments to the Earned Income Tax Credit, 26 U.S.C. § 32 (the “EITC”), used similar language to limit tax credits to those who provide SSNs on their income tax return. Moreover, provisions of the Code have long distinguished between taxpayers on the basis of marital status and alienage.
a. Economic Stimulus Act of 2008 (“ESA”) Facing a worldwide recession, another Congress passed, and President signed, the ESA, which included a substantially-similar provision, entitled “2008 recovery rebates for individuals,” that created tax credits paid as an advance rebate to eligible individuals. Like the CARES Act, the ESA amended 26 U.S.C. § 6428 to create a refundable tax credit intended to deliver fiscal stimulus to the economy and provide prompt relief to taxpayers in challenging times. There, as here, the value of the credit was reduced by any advance refund, which was treated as a constructive overpayment of tax. See Sarmiento v. United States, 678 F.3d 147, 155-56 (2d Cir. 2012) (explaining mechanism of advance refund of the ESA’s recovery rebate credit). The statute directed that “any refund or credit should be made ‘as
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rapidly as possible[.]’” Id. at 151 (quoting prior version of 26 U.S.C. § 6428(g)(3)). Most, but not all, eligible taxpayers received the credit in the form of an advance rebate through a paper check from the IRS. The credit then was reported on the taxpayer’s 2008 Form 1040 during the 2009 tax filing season. Eligible individuals who did not receive the advance rebate could claim the credit on their 2008 income tax returns.
The ESA’s recovery rebate credit provision included the same eligibility limitation challenged in this lawsuit. It defined an eligible individual as anyone other than (1) a nonresident alien, (2) an estate or trust, or (3) a dependent. 26 U.S.C. § 6428(e)(3) (2008). Like the CARES Act, the ESA provided that no credit was allowed for an individual who did not include a valid identification number on his or her tax return. Id. § 6428(h) (2008). In the case of a joint return that did not include valid identification numbers for both spouses, no credit was allowed.2 Id. § 6428(h)(1)(B) (2008). A qualifying child was taken into account in determining the amount of the ESA’s tax credit only if a valid identification number for the child was included on the return. Id. § 6428(h)(1)(C) (2008). Valid identification number was defined as a social security number. Id. § 6428(h)(2) (2008). As here, a U.S. Citizen filing a joint return with a non-SSN holder was not eligible for the ESA’s recovery rebate credit.
b. Earned Income Tax Credit Since at least 1996, the Internal Revenue Code has limited certain federal tax credits to taxpayers filing joint returns who each provide SSNs. Like the CARES Act credit, the EITC3 is
2 Congress later amended section 6428(h) to provide that the identification number requirement in the ESA did not apply to joint returns where at least one spouse is a member of the U.S. Armed Forces at any time during the taxable year. The CARES Act has a similar exception. 3 The EITC is one of the federal government’s largest benefit programs for workers, greatly reducing poverty for low- to moderate-income individuals and couples, particularly those with children.
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a refundable tax credit that is not available to “nonresident aliens.” 26 U.S.C. § 32(c)(1)(D). In 1996, Congress disallowed the EITC for any eligible individual who does not include on his or her income tax return an SSN for the taxpayer, and, if the taxpayer is married, the SSN of the taxpayer’s spouse. Id. §§ 32(c)(1)(E), (m). Taxpayers also must provide SSNs for any qualifying children to claim the EITC. Id. §§ 32(c)(3)(D), (m).
c. Other Limitations Based on Marital Status, Alienage, and SSN Various Internal Revenue Code provisions make similar distinctions based on filing status, marital status, citizenship or alienage, and whether an individual includes SSNs on her tax return. For example, due to the different tax rates set forth in 26 U.S.C. § 1, the amount of tax owed by a dual-income married couple can be greater than the combined tax owed by each member of the couple if they had not married. This differential treatment, sometimes referred to as the “marriage penalty,” has survived constitutional challenge. See infra at 21-23. In addition, since 2017, the Child Tax Credit (“CTC”) has required a taxpayer to include a child’s SSN on a tax return. From 2018 through 2025, the Code permits the full CTC only to a taxpayer who includes his or her child’s SSN. See 26 U.S.C. § 24(h)(7). The CTC also implicates marital status, as it phases out past certain income thresholds which are different for unmarried individuals, married couples filing jointly, and married couples filing separately. 26 U.S.C. § 24(b)(2). 3. The Complaint4 and Motion for Preliminary Injunction Doe challenges 26 U.S.C. § 6428(g)(1)(B),5 which denies a CARES Act credit to an
4 Doe has not established proper service under Fed. R. Civ. P. 4(i). See Dkt. 12. 5 The Second Amended Complaint and motion for a temporary restraining order both inadvertently purport to challenge § 6428(h).
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eligible individual who does not include each spouse’s SSN on a jointly-filed tax return. Doe6 alleges he is statutorily-ineligible for a CARES Act credit. Dkt. 20, ¶¶26-27. He contends that: (1) he is a U.S. citizen who has an adjusted gross income of less than $75,000; (2) his children are U.S. citizens; (3) he files joint tax returns with his wife; (4) his wife does not have an SSN; and (5) neither spouse is a member of the military. Id. On behalf of himself and a purported class of similarly situated individuals, Doe claims 26 U.S.C. § 6428(g)(1) violates his First, Fifth, and Fourteenth Amendment rights; specifically, section 6428(g)(1) allegedly violates his “procedural and substantive due process rights,” Dkt. 20, ¶39; deprives him of his “rights, privileges and immunities secured by the Constitution of the United States,” id.; violates his “constitutional property interest rights individually and as a taxpayer,” id., ¶40; and burdens “the right of association, 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,” id., ¶41. He contends he has been denied equal protection “based solely on whom he chose to marry.” Id.
Doe seeks virtually identical relief in his complaint and motion for temporary restraining order. Compare Dkt. 20, ¶¶16-18 with Dkt. 13 at 27-29. In both, he requests an order certifying a class; an injunction prohibiting the United States from enforcing the CARES Act as it was drafted and requiring the Court to re-write the law; and an order compelling the government to escrow or otherwise appropriate funds sufficient to issue advance refunds of the CARES Act credit to Doe and the putative class. Id. He also seeks various declaratory relief, including a declaratory judgment that section 6428(g)(1) is unconstitutional. Id. Doe does not request
6 Doe has not requested leave, or established the exceptional circumstances required, to proceed anonymously. Doe v. Village of Deerfield, 819 F.3d 372, 376-77 (7th Cir. 2016) (citing cases).
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money damages or otherwise demand immediate payment of an advance refund of the CARES Act credit in either his complaint or preliminary injunction motion.
ARGUMENT I. Legal Standard for a Preliminary Injunction
The purpose of a preliminary injunction is to preserve the relative positions of the parties until the merits of a case are decided. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is an equitable, interlocutory form of relief; it is “‘an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.’” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984) (quotation omitted). It should not be issued “‘unless the movant, by a clear showing, carries the burden of persuasion.’” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation omitted).
The standard for issuing a temporary restraining order is identical to that for a preliminary injunction. See, e.g., Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001). A plaintiff must clearly establish a likelihood of succeed on the merits, irreparable harm absent a TRO, the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 20 (2008). A trial court’s analysis proceeds in two distinct phases: threshold and balancing. Valencia v. City of Springfield, Ill., 883 F.3d 959, 965 (7th Cir. 2018) (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008)).
To survive the threshold phase, a movant must show that (1) absent a TRO, she will suffer irreparable harm prior to final resolution of her claim; (2) traditional legal remedies would be inadequate; and (3) her claim has some likelihood of succeeding on the merits. Id. If the court determines the moving party has failed to demonstrate any of these thresholds, it must deny
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the motion. Girl Scouts, 549 F.3d at 1086. If the movant satisfies her initial burden, the court attempts to minimize the cost of potential error by balancing the nature and degree of her alleged injury with the possible harm to the defendant if the TRO is granted, taking into account the public interest. Id. II. Plaintiff Cannot Establish a Likelihood of Success on the Merits.
Plaintiff’s motion should be denied because he has no likelihood of success on the merits. Because he has a statutory refund remedy, the Court lacks jurisdiction. In addition, he has no standing to challenge the statute here. The complaint also fails to state a claim for relief.
A. This Court does not have subject matter jurisdiction over Plaintiff’s claims. It is fundamental that the United States, its agencies, and its employees acting within the scope of their employment cannot be sued without an “unequivocally expressed” statutory waiver of sovereign immunity. Lane v. Pena, 518 U.S. 187, 192 (1996); see Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 317 (7th Cir. 1994). Waivers are to be strictly construed “so that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text requires[.]” F.A.A. v. Cooper, 566 U.S. 284, 290 (2012). Plaintiff “not only must identify a statute that confers subject matter jurisdiction on the district court but also a federal law that waives the sovereign immunity of the United States to the cause of action.” Macklin v. United States, 300 F.3d 814, 819 (7th Cir. 2002). Plaintiff’s failure to affirmatively satisfy either requirement requires dismissal of the complaint. See id.; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The CARES Act itself does not contain any jurisdictional grant or waiver of sovereign immunity. See Pub. L. No. 116-136. In his complaint, Plaintiff alleges jurisdiction pursuant to 28 U.S.C. § 1331 (“Federal Question Statute”) and 28 U.S.C. § 1367 (“Supplemental Jurisdiction
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Statute”). See Dkt. 20, ¶¶12, 14. He also appears to contend that the named defendants, in their individual capacities, violated his constitutional rights under color of federal law, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971). See Dkt. 20, ¶¶ 41, 46 (citing 42 U.S.C. § 1983). He raises constitutional challenges to the CARES Act, which might be considered an attempt to invoke the sovereign immunity waiver contained in the Administrative Procedure Act, codified at 5 U.S.C. § 702 (the “APA”). None of these statutes, however, waive sovereign immunity for this lawsuit, because Plaintiff must bring his challenge to the CARES Act through a properly-filed tax refund suit pursuant to 26 U.S.C. § 7422. Accordingly, the Court has no jurisdiction over this lawsuit.
1. 28 U.S.C. §§ 1331, 1367, and 2201 do not confer jurisdiction. The jurisdictional statutes cited by Plaintiff do not provide the unequivocally expressed waiver of sovereign immunity necessary to proceed against the Government. “No citation is needed to reject [the] suggestion that 28 U.S.C. § 1331 waives sovereign immunity. It merely gives the district court jurisdiction to hear federal claims not otherwise barred.” Arvanis v. Noslo Eng’g Consultants, Inc., 739 F.2d 1287, 1290 (7th Cir. 1984). The Supplemental Jurisdiction Statute does not confer jurisdiction or act as a waiver of sovereign immunity. First, Plaintiff fails to establish how the Court has original jurisdiction over any of his claims such that supplemental jurisdiction is appropriate to consider. Goldberg v. United States, 2019 WL 1317741, at *2 (N.D. Ill. Mar. 22, 2019). Second, “‘§ 1367(a) cannot be used to waive sovereign immunity unless specifically allowed by Congress.’” Goldberg, 2019 WL 1317741, at *2 (quoting Palmer v. Comm’r, 62 F. App’x 682, 685 (7th Cir. 2003)). Section 1367(a) does not act as a waiver of sovereign immunity sufficient to permit this – or any – lawsuit against the United States. Any attempt to assert claims under the Declaratory Judgment Act, 28 U.S.C. § 2201
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(“DJA”), also fails to establish jurisdiction or overcome sovereign immunity. The DJA “does not enlarge the jurisdiction of the federal courts; it is procedural only.” Vaden v. Discover Bank, 556 U.S. 49, 70 n.19 (2009); see also Villars v. Kubiatowski, 2017 WL 4269008, at *12 (N.D. Ill. Sept. 26, 2017) (citing Balistrieri v. United States, 303 F.2d 617, 619 (7th Cir. 1962)). District courts in this circuit have consistently held that the DJA does not include a waiver of the federal government’s sovereign immunity. Hoelscher v. United States, 2018 WL 3466936, at *2 n.1 (W.D. Wis. July 18, 2018) (citing cases).
2. Plaintiff may only proceed through a 26 U.S.C. § 7422 refund suit. Under section 7422(a), a taxpayer may sue the United States for a refund of any tax unlawfully assessed or collected. Section 7422(a) contains the only specific waiver of sovereign immunity permitting an individual to challenge the denial of a refundable tax credit, like the CARES Act credit. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 5-8 (2008); see also Sarmiento, 678 F.3d at 151 (taxpayer’s suit for refund of the ESA’s tax credit considered after plaintiff “filed an administrative claim with the IRS under section 7422 seeking to recover the withheld” funds). It is also the proper vehicle to raise a constitutional challenge to the denial of a refund or credit. See id. at 9-10. Congress expressly limited the circumstances under which jurisdiction lies for tax refund suits. Congress has created a carefully articulated, comprehensive administrative scheme to challenge the denial of a refund or credit. As the Supreme Court has emphasized, a tax refund suit can be brought only if certain jurisdictional prerequisites have been fully met. See Clintwood, 553 U.S. at 5-8; United States v. Dalm, 494 U.S. 596 (1990); Goldberg v. United States, 881 F.3d 529, 533 (7th Cir.), cert. denied, 138 S. Ct. 1564 (2018); see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (explaining that statutes designed “to
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achieve a broader-system related goal,” such as “limiting the scope” of the waiver of “sovereign immunity,” are “jurisdictional”) (citing Dalm). The administrative exhaustion requirement applies to all refund suits, including claims that provisions of the Internal Revenue Code violate the Constitution. See Clintwood, 553 U.S. at 9.
In order to bring a federal lawsuit under section 7422, a taxpayer first must file a timely administrative claim with the IRS, see 26 U.S.C. §§ 6511(a), 7422(a), and the IRS must deny the claim or fail to act upon it within six months, see 26 U.S.C. § 6532(a)(1). See 28 U.S.C. §§ 1346(a)(1), 1491; United States v. Felt & Tarrant Mfg., 283 U.S. 269, 272 (1931); GreeneThapedi v. United States, 549 F.3d 530, 532 (7th Cir. 2008). If a plaintiff fails to exhaust administrative remedies in this manner, her lawsuit must be dismissed for lack of jurisdiction. Greene-Thapedi, 549 F.3d at 532; see also Hefti v. I.R.S., 8 F.3d 1169, 1174 (7th Cir. 1993).
When considering a challenge to advance refund criteria under the 2008 ESA, this Court required administrative exhaustion to establish a waiver of sovereign immunity sufficient for subject matter jurisdiction. See Brest v. Lewis, 2009 WL 4679649, at *3 (N.D. Ill. Dec. 7, 2009) (court lacked jurisdiction to consider challenge to withholding of ESA advance refund payment because plaintiff failed to exhaust administrative remedies); see also Fatani v. I.R.S., 2009 WL 763059, at *1 (D. Utah Mar. 23, 2009) (same).
Plaintiff’s constitutional challenge to the CARES Act credit is subject to these jurisdictional requirements. See Clintwood, 553 U.S. at 4. Thus, Plaintiff may challenge his alleged ineligibility for the CARES Act credit only by a section 7422 refund action, filed after he exhausts administrative remedies, which he has not done. Plaintiff may submit a joint 2020 tax return after December 31, 2020 and file an administrative claim with the IRS alleging that he is entitled to the credit because section 6428(g) is unconstitutional. Until he does so, the Court is
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without jurisdiction to consider his suit, and it must be dismissed. 3. The Court does not have jurisdiction under the APA.
The APA supplies a right to seek judicial review of federal agency action and waives sovereign immunity for lawsuits seeking declaratory and injunctive relief.7 See 5 U.S.C. § 702; see also Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 774 (7th Cir. 2011). However, review of agency action under the APA is permitted only where “there is no other adequate remedy in a court.” 5 U.S.C. § 704. Thus, determining whether jurisdiction exists under the APA requires an inquiry into whether other provisions allow a cause of action to remedy the plaintiff’s alleged injury. See U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016) (“agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court”).
Here, the existence of judicial review under section 7422 precludes jurisdiction under the APA. Congress specifically waived sovereign immunity and authorized a cause of action for a taxpayer to challenge the denial of a tax credit under section 7422. This Court thus has long recognized “a clear congressional intent to preclude judicial review of taxpayer challenges under the APA.” Hall v. United States, 1983 WL 1583, at *3 (N.D. Ill. Feb. 24, 1983); see also Petit v. I.R.S., 1983 WL 1612, at *1 (N.D. Ill. May 12, 1983). Because Plaintiff has a refund remedy, his claims do not fall within the APA’s immunity waiver. See Clintwood, 553 U.S. at 8-12; Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.”).
7 To the extent that Plaintiff’s claim is construed as an attempt to restrain the assessment and collection of tax, it would be barred by the Anti-Injunction Act and Declaratory Judgment Act. See Wiemerslage v. United States, 838 F.2d 899, 901 n.4 (7th Cir. 1988).
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4. A damages remedy under Bivens is not available. The Court also lacks jurisdiction to consider a Bivens-type civil rights claim against the United States or the named defendants. The United States has not waived sovereign immunity with regard to alleged civil rights or constitutional violations, such as the right to due process. See F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994); Carlson v. Green, 446 U.S. 14, 21 (1980). A Bivens action, alleging the violation of constitutional rights under color of federal law, can be maintained against a federal officer in his or her individual capacity only; it cannot be brought against the United States, federal agencies, or an officer in his or her official capacity. Meyer, 510 U.S. at 485; Kentucky v. Graham, 473 U.S. 159, 166 (1985) (a suit against a federal official in an official capacity is a suit against the United States). Naming individual government officials as defendants does not allow a plaintiff to avoid the bar of sovereign immunity. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949). To the extent Plaintiff seeks to hold the individual named defendants personally liable for carrying out their legislative or executive duties in enacting or administering the CARES Act, they are absolutely immune from suit. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Moreover, a Bivens remedy is not available. Doe’s claims are unlike prior Bivens claims approved by the Supreme Court, so they require a special factors analysis. See Ziglar v. Abbasi, — U.S. —, 137 S. Ct. 1843, 1860 (2017). The exclusive, comprehensive administrative scheme created to resolve tax-related disputes, which culminates in a section 7422 lawsuit, precludes a Bivens action for damages. See Haas v. Schalow, 172 F.3d 53 (table), 1998 WL 904727, at *3 (7th Cir. 1998); see also Cameron v. IRS, 773 F.2d 126, 129 (7th Cir. 1985). B. Plaintiff does not have standing to bring this lawsuit. Federal courts may decide only actual cases or controversies. Daimler-Chrysler Corp. v.
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Cuno, 547 U.S. 332, 341 (2006). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). The “‘standing inquiry has been especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (quoting Raines, 521 U.S. at 819-20).
Standing has three elements: (1) plaintiffs must have suffered an injury in fact which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of such that the injury is fairly traceable to the challenged action of the defendant; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and quotation marks omitted). A “threatened injury must be certainly impending to constitute injury in fact,” and “‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 568 U.S. at 410 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis added).
1. Plaintiff has not been denied the CARES Act credit. The ripeness doctrine, like the requirement that an injury-in-fact is “certainly impending,” is intended to avoid “premature adjudication” and to postpone judicial review until “an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967) abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Where agency action offers a benefit or establishes criteria for dispensing benefits, courts generally have concluded that a plaintiff’s application for benefits must be denied before a claim is ripe for review. See Nat’l
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Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 809 (2003); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57-59 (1993). And courts have been particularly reluctant to find jurisdiction for a specific pre-enforcement challenge where (as in the tax refund context) a statutory scheme creates a separate process for review. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-09 (1994). As shown above, Plaintiff has not pursued the statutory review process by filing an administrative claim, as required to permit jurisdiction over a section 7422 refund suit.
Although his economic circumstances are serious, Plaintiff has not established that his claim is ripe and that any injury by the Government is “certainly impending,” “actual or imminent,” or “concrete and particularized.” He alleges that the denial of a tax credit violates his constitutional rights. However, the CARES Act credit is a refundable tax credit toward eligible individuals’ 2020 income taxes. The CARES Act does not provide the right to immediate payment of an advance refund – even if it is re-written as Plaintiff requests. Since tax year 2020 is not complete, he cannot yet claim the CARES Act credit on his income tax return. Plaintiff also has not otherwise requested a CARES Act credit and had his administrative claim denied. Thus, any alleged injury has yet to occur.
Nor can plaintiff claim that seeking administrative review is futile because he is allegedly statutorily ineligible for the tax credit. The Seventh Circuit rejected a similar argument in Freedom from Religion Foundation. There, plaintiffs challenged the constitutionality of 26 U.S.C. § 107, the “Parsonage Exemption.” Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 818 (7th Cir. 2014). Although seeking and being denied the exemption was a formality – since plaintiffs were not “ministers of the gospel” eligible for the exemption – the Seventh Circuit held that, “[o]nly a person that has been denied such a benefit can be deemed to have suffered a cognizable injury.” Id. at 825. Thus, the Court found that the plaintiffs suffered no
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injury and lacked standing to challenge the constitutionality of the Parsonage Exemption. Id. Here, as in Freedom from Religion Foundation, Plaintiff must request, and be denied, the
CARES Act credit in order to challenge the constitutionality of section 6428. Id.; see also Gaylor v. Mnuchin, 919 F.3d 420, 425 (7th Cir. 2019) (plaintiffs had standing to challenge the constitutionality of a Code provision since they had “personally claimed and been denied the exemption” after complying with section 7422); Black Bear Sports Group, Inc. v. Amateur Hockey Ass’n of Ill., Inc., 2019 WL 2060934, at *6 (N.D. Ill. May 9, 2019) (dismissing lawsuit for lack of standing partially because “Black Bear has alleged neither that it applied for approval of its additional ice arrangement nor that such an application was rejected.”).
Plaintiff needs to assert a proper claim for a CARES Act credit. Since he has not done so, he lacks standing and his suit is not ripe.
2. Plaintiff may be, or may become, eligible for a CARES Act credit. Plaintiff’s alleged injury-in-fact also is conjectural at this time and may not occur, requiring the Court to speculate on a future injury. See Whitmore, 495 U.S. at 158-59. Plaintiff may still qualify for the CARES Act credit. For example, he can elect to file a 2019 tax return by July 15, 2020, or a 2020 tax return after December 31, 2020, under the status “married filing separately.” See Dkt. 13-1, ¶4 (Doe affirms that his wife used her ITIN “in 2018”). If his lastfiled return includes the status “married filing separately,” he might be entitled to the CARES Act credit. He also may be eligible if he or his wife join the Armed Forces on or before December 31, 2020, or his wife obtains a social security number before they timely file a 2020 joint return. See id., ¶3 (Doe affirms that his wife is in the process of obtaining permanent residency); 26 U.S.C. § 6428(g)(2)(A) (citing 26 U.S.C. § 24(h)(7)).
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C. Plaintiff has not raised a valid constitutional claim. Plaintiff also cannot establish that he is likely to succeed on the merits of his underlying claim that the CARES Act is unconstitutional.
1. Reasonable basis review applies to tax statutes. The CARES Act, like all other federal statutes, is presumed to be valid. INS v. Chadha, 462 U.S. 919, 944 (1983). “Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained[.]” Id. “‘[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). “The equal protection obligation imposed by the Due Process Clause of the Fifth Amendment is not an obligation to provide the best governance possible;” it only requires that legislation “classify the persons it affects in a manner rationally related to legitimate governmental objectives.” Schweiker v. Wilson, 450 U.S. 221, 230 (1981); City of Chicago v. Shalala, 189 F.3d 598, 605-09 (7th Cir. 1999) (upholding federal statute that denied food stamps, supplemental security income, and other public benefits to certain aliens); Griffin v. Richardson, 346 F. Supp. 1226, 1234 (D. Md. 1972) (applying rational basis analysis to void statutory distinction based on “illegitimate” status). “If the classification has some ‘reasonable basis’ it does not offend the Constitution simply because [it] ‘is not made with mathematical nicety or because in practice it results in some inequality.’” Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)). The Supreme Court has acknowledged that federal courts lack of expertise in the “complex arena” of fiscal policy. See San Antonio Ind. Sch. District v. Rodriguez, 411 U.S. 1,
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40-42 (1973)). Thus, “‘[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes,’” even in constitutional cases, and courts must give “substantial deference” to a legislative “judgment” regarding a “tax” provision that is challenged under the constitution. Mueller v. Allen, 463 U.S. 388, 396 (1983) (quotation omitted); see Regan v. Taxation With Representation, 461 U.S. 540, 547 (1983) (rejecting an equal protection challenge to a federal tax classification).
“No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact.” Rodriguez, 411 U.S. at 41. “In such a complex arena in which no perfect alternatives exist,” courts cannot “impose too rigorous a standard of scrutiny lest all . . . fiscal schemes become subjects of criticism under the Equal Protection Clause.” Id. Rather, “within the limits of rationality, the legislature’s efforts to tackle problems should be entitled to respect.” Id. at 42; see United States v. Md. Savings-Share Ins. Corp., 400 U.S. 4, 6-7 (1970) (tax classifications generally presumed to be reasonable and constitutional when a rational basis is shown or perceived by a court).
Courts, therefore, “cannot require the Government to demonstrate more convincingly than it has that no less burdensome means exist,” because “[t]o do so would be effectively to abrogate the constitutional taxing power of Congress.” Johnson v. United States, 422 F. Supp. 958, 974 (N.D. Ind. 1976), aff’d sub nom., Barter v. United States, 550 F.2d 1239, 1240 (7th Cir. 1977) (citing Brushaber v. Union P.R. Co., 240 U.S. 1 (1916)); see also Mapes v. United States, 576 F.2d 896, 904 (Ct. Cl. 1978) (“We in the judiciary, are neither equipped nor inclined to second guess the legislature in its determination of appropriate tax policies.”). Ultimately, “the power of Congress in levying taxes is very wide, and where a classification is made of taxpayers
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that is reasonable, and not merely arbitrary and capricious, the Fifth Amendment cannot apply.” Barclay & Co. v. Edwards, 267 U.S. 442, 450 (1924).
2. Section 6428(g)(1) does not infringe upon plaintiff’s right to marry. Plaintiff alleges that section 6428(g)(1) fails to treat him equally with fellow citizens “based solely on whom he chose to marry,” and that it discriminates “on the basis of his fundamental right to marriage.” Dkt. 20, ¶¶ 41, 53. Section 6428(g)(1) does not implicate, let alone violate, the right to marriage. Because it is a reasonable limitation based on tax filing status and does not affect the decision to enter marriage, Doe fails to state a claim.
a. Distinctions based on marital status are subject to lower scrutiny than statutes affecting the right to marriage.
Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978), articulates the crucial distinction between statutory restrictions that interfere with the decision to marry and those that classify based on marital status. The Supreme Court reviewed a Wisconsin law prohibiting non-custodial parents from marrying if they had child support obligations or children who were, or may become, “public charges.” See id. at 375. Because “the right to marry is of fundamental importance, and since the classification at issue . . . significantly interferes with the exercise of that right[,]” the Court undertook a “critical examination” of the state interests advanced in support of the classification. Id. at 383. Finding an impermissible burden on the right to enter marriage, the Court affirmed the lower court’s decision striking down the law for violating the equal protection requirements of the Fifth and Fourteenth amendments. See id. at 390-91.
Zablocki does not require the same analysis of all limitations involving marriage. The Supreme Court explained, “by reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents or prerequisites for marriage must be subject to rigorous scrutiny.” Id. at 386. To the contrary,
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“reasonable regulations that do not significantly interfere with decisions to enter in the marital relationship may be legitimately imposed.” Id. at 387.
Thus, there is a difference between a provision impacting an individual’s ability to marry, see, e.g., Lee v. Orr, 2014 WL 683680, at *1 (N.D. Ill. Feb. 21, 2014), and one making a distinction related to marital status. See Druker v. Comm’r, 697 F.2d 46, 49 (2d Cir. 1982) (denying equal protection challenge to differential tax rates in 26 U.S.C. § 1) (citing Zablocki, 434 U.S. at 386; Califano v. Jobst, 434 U.S. 47, 53 (1978)). At most, section 6428(g) distinguishes based on marital status and is subjected to a lower level of scrutiny than provisions that significantly interfere with the ability to enter marriage. See, e.g., Mapes, 576 F.2d at 900, 901-03 (applying rational basis review and holding that differential tax effect between different married couples was constitutionally permissible); Barter, 550 F.2d at 1240 (“the inequities asserted to inhere in the ‘marriage penalty,’ whatever may be their persuasiveness as arguments for legislative change, do not rise to the level of constitutional violations of appellants’ rights”).
b. The Code permissibly distinguishes on marital status. Numerous tax benefits and obligations – including allowable tax credits – distinguish based on marital status. For example, the Code permits several filing statuses, each subject to different tax rates and other provisions, based on marital status. See 26 U.S.C. §§ 1(a) (married individuals filing joint returns & surviving spouses); 1(b) (heads of household); 1(c) (unmarried individuals); 1(d) (married individuals filing separate returns). Federal courts have consistently rejected constitutional claims where, for federal tax purposes, married couples are treated differently from unmarried couples, or certain married couples are treated differently from other married couples. See Druker, 697 F.2d at 50; Mapes, 576 F.2d at 904 (holding that section 1’s tax rates are constitutional); Johnson, 422 F. Supp. at 966 (same); Schinasi v. Comm’r, 53 T.C.
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382, 384 (1969) (holding that 26 U.S.C. § 6013(a)(1) did not violate the Constitution by precluding individuals married to nonresident aliens from filing joint federal tax returns).
The constitutionality of marital distinctions within the Code is illustrated by the so-called “marriage penalty,” which refers to the additional tax owed by a couple filing jointly, compared with the amount of tax that would have been owed by each member of the couple if they filed individual returns under the “single” status.8 See Johnson, 422 F. Supp. at 966. A “marriage penalty” typically occurs “when both spouses generate somewhat comparable incomes.” Mapes, 576 F.2d at 899. Such couples would pay less if they never married. But married couples cannot use the tax rates available to unmarried individuals; they must file jointly or separately. See 26 U.S.C. § 1(a), (d). They face a higher tax bill based on how much income their spouses received.
The Seventh Circuit and Second Circuit both have rejected constitutional challenges to the “marriage penalty.” In Barter, the Seventh Circuit succinctly affirmed the Northern District of Indiana’s “thoughtful” opinion in Johnson. 550 F.2d at 1240. The Second Circuit’s more extensive Druker opinion also rejected an equal protection challenge to the “marriage penalty.” 697 F.2d at 47-48. Considering the evolution of tax rates over time, the Court noted the “marriage penalty” is an inherent policy choice in any system with progressive tax rates that tries to impose the same tax liability on every couple with the same taxable income. Id. at 50. The mere fact that tax rates differently affect particular groups of individual and married taxpayers is not unconstitutional. Id. (“In the area of family taxation every legislative disposition is ‘virtually fated to be both overinclusive and underinclusive when judged from one perspective or another.’” (citation omitted)).
8 Not all married couples face a “marriage penalty” – “many if not most, married couples achieve considerable tax savings through income splitting on a joint return.” Mapes, 576 F.2d at 898-99.
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The court explained, “[w]hereas differences in race, religion, and political affiliation are almost always irrelevant for legislative purposes, ‘a distinction between married persons and unmarried persons is of a different character.’” Druker, 697 F.2d at 49 (quoting Jobst, 434 U.S. at 53). It acknowledged that the “marriage penalty” has “some adverse effect on marriage.” Druker, 697 F.2d at 50. Nevertheless, the “adverse effect of the ‘marriage penalty,’ . . . is merely ‘indirect’; while it may to some extent weight the choice whether to marry, it leaves the ultimate decision to the individual.” Id. (citation omitted).
Because the tax rate structure places “‘no direct legal obstacle in the path of persons desiring to get married,’” and “the ‘marriage penalty’ is most certainly not ‘an attempt to interfere with the individual’s freedom [to marry],’” the Second Circuit held Congress could enact a policy that penalizes some dual-income couples. Id. (citing Zablocki, 434 U.S. at 387 n.12; Jobst, 434 U.S. at 54); see Mapes, 576 F.2d at 901 (The additional tax liability suffered by some two-income couples “is an indirect burden on the exercise of the right to marry . . . suffered not for marrying but for marrying one in a particular income group.”); Johnson, 422 F. Supp. at 974. Given the “wide latitude” accorded to Congress in the area of taxation, “[t]here is nothing in the equal protection clause that required a different choice.” Drucker, 697 F.2d at 50-51.
c. Section 6428(g)(1) is a reasonable restriction based on tax filing status and does not interfere with the right to marry.
Like the “marriage penalty,” section 6428(g)(1) does not interfere with the right to marry. Rather, it precludes certain joint tax filers from claiming the CARES Act credit or receiving advance refund of that credit. Section 6428(g)(1) is a reasonable restriction, rationally related to Congress’s intent to benefit United States citizens and those nationals and resident aliens eligible for lawful employment. SSN-holders married to non-SSN holders can claim the CARES Act credit by filing a separate return from their spouse. See https://www.irs.gov/coronavirus/
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economic-impact-payment-information-center at Q23 (“If spouses file separately, the spouse who has an SSN may qualify for a Payment; the other spouse without a valid SSN will not qualify”). Plaintiff admits that he can change filing status and obtain the credit. See Dkt. 13 at 26. His claim is merely that the Constitution obligates the IRS to permit the CARES Act credit on a joint return with his spouse. The Constitution does not require that result.
In Schinasi, the U.S. Tax Court denied a Fifth Amendment challenge to 26 U.S.C. § 6013(a)(1), which precluded individuals who are nonresident aliens for any part of a taxable year from filing a joint return.9 See 53 T.C. at 383. Schinasi argued section 6013(a)(1) “discriminates against married couples of which one member was a nonresident alien for part of the taxable year,” and constitutes “‘unequal taxation’ for the ‘new immigrants.’” Schinasi, 53 T.C. at 383 (quoting petition). The Tax Court upheld the statute, finding a reasonable basis for differential treatment. See id. at 384. It explained, “Congress thought that because the income of a citizen or resident is taxed differently from the income of a nonresident alien (see § 1.1-1(b), Income Tax Regs.), a citizen or resident should not be allowed to file a joint return with one who has been a nonresident alien for part of the taxable year.” Schinasi, 53 T.C. at 384. That rationale for denying the privilege of filing joint returns passed constitutional muster. See id.
Section 6428(g)(1) does not implicate the right to marry. Rather it contains restrictions that may impact a married taxpayer’s choice whether to file jointly or separately for any given year. See Johnson, 422 F. Supp. at 968 (because “each married taxpayer may make the individual choice to file a separate return and thus avoid ‘attribution’ of his income . . . to the income of his spouse,” “[a]ny aggregation of the two spouses’ income in a joint return is entirely
9 In 1976, Congress added section 6013(g), which permits an election to treat nonresident aliens as residents for tax purposes and thus allows the filing of joint tax returns by such individuals.
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a voluntary matter”). There are other reasons a married couple would choose to file separately, rather than jointly. In particular, filing a joint return with a nonresident alien requires that all worldwide income earned by the nonresident is taxed here. See 26 C.F.R. § 1.1-1(b).
Faced with these considerations, including section 6428(g), some married couples may choose to file separately and others will not. The fact that the Code presents these choices does not violate due process. As the Supreme Court held, “[a]rguments of equity have little force in construing the boundaries of exclusions and deductions from income many of which, to be administrable, must be arbitrary.” Comm’r v. Kowalski, 434 U.S. 77, 95-96 (1977).
3. Section 6428(g) is not an improper classification based on alienage. Plaintiff alleges that section 6428(g)(1) discriminates due to his wife’s alienage. But eligibility for the CARES Act credit is based on whether an individual has an SSN, not alienage. To the extent the section 6428(g) implicates alienage, it does not violate the Equal Protection Clause, because it has a rational basis – it is a reasonable restriction that assists with the efficient and accurate implementation of the CARES Act. See Lewis v. Thompson, 252 F.3d 567, 583 (2d Cir. 2001) (finding rational basis for distinction based on undocumented status). Plaintiff thus fails to state an equal protection claim based on alienage.
a. The CARES Act does not contain any alienage classification. Many non-U.S. citizens are entitled to receive, and have, an SSN. Those individuals are entitled to receive a CARES Act credit if they otherwise meet the requirements of section 6428. The Constitution does not prevent Congress from imposing this policy-based requirement. See McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980) (rejecting equal protection challenge to requirement that all members of family provide SSNs as a condition of public aid eligibility). Section 6428 includes two threshold requirements for the CARES Act credit. First,
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“eligible individual” excludes “any nonresident alien individual.” 26 U.S.C. § 6428(d)(1). “Nonresident alien” (in contrast to “resident alien” or “U.S Citizen”) is a taxation classification, used for purposes of the Internal Revenue Code. See 26 U.S.C. § 7701(b)(1)(A); see also Congressional Research Service (CRS) Report RS 21732, “Federal Taxation of Aliens Working in the United States,” at 1-3.10 Second, an individual must include her SSN on her tax return to receive a CARES Act credit. See 26 U.S.C. § 6428(g). In the case of a couple filing a joint return, each spouse must include an SSN. Id.
While those requirements may overlap – as many nonresidents are ineligible for SSNs11 – the SSN requirement most closely tracks work authorization. See 20 C.F.R. § 422.104 (“Who can be assigned a social security number”); CRS Report R46339, “Unauthorized Immigrants’ Eligibility for COVID-19 Relief Benefits: In Brief” at 5-6 (SSNs are “typically issued to U.S. citizens, lawful permanent residents, and noncitizens with work authorization”); CRS Report R43840, “Federal Income Taxes and Non-Citizens,” at 4 (the Social Security Administration largely stopped providing “nonwork SSNs” once the ITIN was established); 61 Fed. Reg. 26788, 27689 (“an ITIN creates no inference regarding the . . . right of that individual to be legally employed in the United States”). In other words, those ineligible to receive SSNs are, mostly, unauthorized to work in the United States, regardless of their sustained presence.
By contrast, “nonresident alien” status, for taxation purposes, generally involves duration of presence in the United States, rather than work authorization. See IRS Pub. 519 at 1
10 This Tax Code classification is not identical to immigration status, which instead is defined under the Immigration and Naturalization Act. See id. For instance, an undocumented immigrant may be deemed a “resident alien” for taxation purposes. 11 Those who are ineligible to receive SSNs, but must file tax returns, include many classes of nonresident aliens. Such individuals can be issued an Individual Taxpayer Identification Number (“ITIN”). See https://www.irs.gov/individuals/individual-taxpayer-identification-number.
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(“Nonresident Alien or Resident Alien?”). “Nonresident aliens” are individuals who are not permanent residents and who do not have a “substantial presence” in the United States regardless of whether they may work here. Compare IRS Pub. 519 with 20 C.F.R. § 422.104. The distinction between residency and nonresidency is critical for tax enforcement because residents must pay tax on their worldwide income, but nonresidents do not. See IRS Pub. 519; see generally 26 U.S.C. § 7701(b)(3); 26 CFR §§ 301.7701(b)-1 through 301.7701(b)-4.
Plaintiff is unlikely to prevail on his alienage claim. He challenges the SSN requirement of section 6428(g)(1), not the exclusion provisions of section 6428(d)(1). But section 6428(g)(1) focuses solely on work authorization, which bears only an indirect link to alienage.12 Further, the Code contains multiple provisions excluding non-SSN holders from credits and deductions available to SSN holders. See supra at 6. These provisions show that distinctions based on SSNs, like section 6428(g)(1), are permissible. See McElrath, 615 F.2d at 441.
b. Section 6428(g)’s classifications do not violate the Constitution. Even if this Court construes section 6428(g) as a classification based on alienage, it is permissible. Statutes that implicate alienage are not unconstitutional as long as Congress has a “rational basis” for the challenged classification. Section 6428(g) easily clears that test. The Supreme Court recognizes that the federal government has “broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)). When federal law classifies individuals based on alienage, rational basis review applies. See Matthews v. Diaz, 426, U.S. 67, 81-85 (1976); City of Chicago, 189 F.3d at 603-04. Under rational basis review, a law “is
12 Undocumented immigrants can be “resident aliens” for taxation purposes, with sufficient time spent in the United States. IRS Pub. 519. In that instance, their “alienage” would not disqualify them under section 6428(d), but their lack of an SSN would disqualify them under 6428(g).
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presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate . . . interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Further, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). “The administrative difficulties of individual eligibility determinations are without doubt matters which Congress may consider when determining whether to rely on rules which sweep more broadly than the evils with which they seek to deal.” Weinberger v. Salfi, 422 U.S. 749, 784 (1975).
In Hofstetter v. Commissioner, the Tax Court rejected a challenge to a provision requiring a taxpayer whose spouse is a nonresident to file a separate return. See 98 T.C. 695, 701-02 (1992). There, a Swiss taxpayer challenged the computation of alternative minimum tax made applicable to certain nonresident aliens. Because his spouse did not have U.S. source income and was not required to file a U.S. tax return, he could not file a joint return. He alleged the Internal Revenue Code treated him unequally based on his alienage because he could not claim the higher exemption amount available for joint filers. See id. at 701. The court rejected taxpayer’s claim because the restriction at issue, stemming from 26 U.S.C. § 6013, applied “equally to all taxpayers whose spouses are nonresident aliens, regardless of their nationality.” Id. at 702 (citing Schinasi, 53 T.C. at 384). Thus, the court held that “petitioner is not discriminated against based upon his national origin.” Hofstetter, 98 T.C. at 702 (citing Black v. Comm’r, 69 T.C. 505 (1977); Bhargava v. Comm’r, T.C. Memo. 1978-197 (1978)).
In Barr v. Commissioner, the Tax Court found a rational basis for 26 U.S.C. § 152(b)(3), which allows a taxpayer to claim a child as a dependent, only if the child “is a citizen of the United States, a resident of the United States or certain other countries, or makes his principal
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place of abode in the home of the taxpayer.” 51 T.C. 693, 694 (1969). Although taxpayers supported their noncitizen son during the taxable year, he resided in South Korea. The court rejected taxpayers’ argument that the statute violated the Fifth Amendment. See id. at 695. The court noted that, in 1944, Congress added the restriction in section 152(b)(3) “because [it] became convinced that dependency deductions were being claimed in questionable situations,” and “[i]t was impracticable for the Internal Revenue Service to investigate all these claims.” Id. The court concluded that “the statutory restrictions may be the only practicable answer to the problem—surely, we cannot say that they are without reason.” Id.
Likewise, the SSN requirement in section 6428(g)(1) permissibly distinguishes between individuals with and without SSNs. See, e.g., Bowen v. Roy, 476 U.S. 693 (1986) (rejecting First Amendment challenge to SSN requirement for children’s food stamp benefits); see also Lewis, 252 F.3d at 583. Nonresident aliens are not eligible for a CARES Act credit. See 26 U.S.C. § 6428(d)(1). To effectuate section 6428(d)(1) and further its policy goal of providing the CARES Act credit only to citizens, nationals, and noncitizens authorized to work in the United States, Congress precluded claims for credit submitted on joint returns by couples with only one SSN. This decision was reasonable given Congress’ desire to disburse aid efficiently and accurately (i.e., avoid payments to those who were statutorily ineligible) and to reduce fraud and abuse. Without this rule, if a citizen or resident alien and a non-resident alien file a joint return under section 6013(g), any amount of credit would be jointly claimed, in violation of section 6428(d)(1). See id., § 6428(e).
It is irrelevant whether Congress could have selected a different method to achieve the same result. See Brushaber, 240 U.S. at 26. And the wisdom of this policy choice is not at issue in this lawsuit. See Sebelius, 567 U.S. at 563. Plaintiff’s alienage claim therefore fails.
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4. Section 6428(g) does not violate the First Amendment. To the extent the complaint includes a First Amendment claim, plaintiff is not likely to prevail. He contends section 6428(g) violates the right of privacy and the right of association, which, “contained in the penumbra of the First Amendment[,] is one of those fundamentally protected zones of privacy.” Dkt. 20, ¶50 (citing Griswold v. Connecticut, 381 U.S. 479, 480 (1965)). Section 6428(g) does not infringe on these rights. The right of association stems from the First Amendment and is “an indispensable means of preserving other individual liberties.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); see Griswold, 381 U.S. at 483. The Constitution therefore protects both a freedom of expressive association and a freedom of intimate association. Roberts, 468 U.S. at 617-18; Griswold, 381 U.S. at 483 (holding that the “‘freedom to associate and privacy in one’s associations’” was constitutionally-protected) (quoting NAACP v. State of Alabama, 357 U.S. 449, 462 (1958)). The freedom of intimate association concerns the right “to enter into and maintain certain intimate human relationships.” Roberts, 468 U.S. at 617-18. Expressive association, on the other hand, is “a right to associate for the purpose of engaging in those activities protected by the First Amendment[.]” Id. at 618. These freedoms are “not absolute,” but rather can “be overridden ‘by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’” Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (quoting Roberts, 468 U.S. at 623). Section 6428(g) does not infringe upon or proscribe these rights. Requiring both spouses to provide an SSN on a joint tax return does not impact intimate or expressive association. The requirements set forth in section 6428 do not “significantly interfere with decisions to enter into
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the marriage relationship.” Zablocki, 434 U.S. at 386. The requirement also does not distinguish between married and unmarried individuals, but rather distinguishes between joint returns and separate or individual returns. Married spouses have a voluntary choice to file their tax returns jointly or separately, and the different impact if Plaintiff files jointly is not of a constitutional nature. See Rodriguez, 411 U.S. at 41. III. Plaintiff Will Not Suffer Irreparable Harm Absent a Preliminary Injunction.
Plaintiff claims that he and the purported class will suffer irreparable harm in the absence of a preliminary injunction in two ways. First, he identifies “the loss of a minimum of $1,200,” based on “exclusion from the CARES Act.” Dkt. 13 at 10, 18. Second, he argues the CARES Act has a harmful “effect on the lawful immigration process.” Id. at 18. Doe alleges “requiring US Citizens to file their 2019 and/or amend their 2018 tax returns to file separately in order to receive the Stimulus Check” is contrary to immigration policies that provide citizens “a path to obtaining lawful citizenship for their spouses.” Id. at 19.
Without minimizing the hardship faced by Plaintiff and those he seeks to represent, courts have held that neither of these alleged injuries constitute irreparable harm justifying a TRO. A potential injury is irreparable only when “the threatened harm would impair the court’s ability to grant an effective remedy.” EnVerve, Inc. v. Unger Meat Co., 779 F. Supp. 2d 840, 844 (N.D. Ill. 2011). Potential harm is not “irreparable” unless the harm cannot be repaired and money compensation is inadequate. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir. 1997). It is well settled that the loss of money is ordinarily not an irreparable harm, as it usually can be remedied through damages. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (rejecting the claim that loss of income pending the outcome of an appeal was irreparable harm). Even substantial money injuries are not irreparable, as long as there is a possibility that “‘adequate
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compensatory or other corrective relief will be available at a later date.’” Id. (citation omitted). That is particularly true where a litigant has not lost existing benefits.
Here, the potential loss of advance payments of the CARES Act credit, like the loss of income pending appeal, is an economic injury that can be adequately compensated if Doe ultimately prevails in this case. See Ciechon v. City of Chicago, 634 F.2d 1055, 1058 (7th Cir. 1980) (the loss of income and benefits during a thirty-day suspension is not irreparable); Frerck v. John Wiley & Sons, Inc., 850 F. Supp. 2d 889, 894 (N.D. Ill. 2012) (plaintiff did not suffer irreparable harm from unauthorized use of his copyright because he could recover damages if he prevailed). As the Seventh Circuit has explained, “the difference between money now and money later, though real, ‘is not the sort of irreparable harm that is effectively unreviewable on appeal.’” Moretrench Am. Corp. v. S.J. Groves and Sons Co., 839 F.2d 1284, 1289 (7th Cir. 1988) (quoting Uehlein v. Jackson Nat’l Life Ins. Co., 794 F.2d 300, 302 (7th Cir. 1986)).
Acknowledging that a remedy to his primary injury exists, Doe argues he would be harmed by filing a separate tax return. However, filing separate returns does not necessarily impact the immigration process, let alone cause irreparable harm. He concedes “income tax forms” are but one consideration in evaluating whether a marriage is valid for immigration purposes. See Dkt. 13 at 19 (citing In Matter of Laureano, 19 I & N. Dec. 1, 1 (B.I.A. Dec. 12, 1983)). He notes that other evidence of legitimate intent to marry includes, but is not limited to, insurance policies, property leases, bank accounts, and testimony. See Dkt. 13 at 19. Thus, it is far from certain that filing separate returns would have any effect on immigration decisions. This speculative, future harm is insufficient for purposes of a preliminary injunction. See Winter, 555 U.S. at 22 (plaintiffs seeking preliminary relief must show that irreparable injury is likely in the absence of an injunction, not merely speculative). In sum,
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“[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson, 415 U.S. at 90. IV. Plaintiff is Not Entitled to a TRO Because He Has Adequate Remedies.
Plaintiff seeks an order re-writing a federal statute, enjoining Congress, and requiring the United States to permit him and the purported class members to claim the CARES Act credit for themselves and their children with valid identification numbers. To obtain this extraordinary preliminary relief, he bears the heavy burden of establishing he has no adequate remedy at law. See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017), cert. denied, 138 S. Ct. 1260 (2018) (citing Protamek Indus. Ltd. v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2012)). Doe does not explain how he meets this burden. Dkt. 13 at 24.
Plaintiff has two independent avenues to claim the CARES Act credit, each of which is a sufficient, non-equitable remedy. Doe can file a separate return for 2020 claiming a $1,200 credit for himself and $500 for each of his children. See supra at 3-4. Alternatively, he can proceed by refund action seeking those amounts. See supra at 11-13. He may submit a joint 2020 tax return after December 31, 2020, and file an administrative claim with the IRS alleging that section 6428(g) is unconstitutional. If that claim is denied, he can file a refund action under 26 U.S.C. § 7422. If Doe prevails in either situation, his alleged harm would be remedied. This Court therefore should not grant the extraordinary relief of a TRO.
Furthermore, even if the Court issues a TRO, Plaintiff still would not immediately receive an advance refund. Rather, if they were otherwise eligible, Plaintiff and all others similarly situated would receive an advance refund of the CARES Act credit when the Secretary of the Treasury is able to issue it. Although section 6428(f)(3)(A) provides that the Secretary
33

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“shall, subject to the provisions of this title, refund or credit any overpayment attributable to this section as rapidly as possible,” the CARES Act confers no justiciable right to an immediate payment of an advanced refund of the CARES Act credit. In addition, because of complications related to providing advance refunds in certain instances, some individuals will not receive the CARES Act credit until it is claimed on their 2020 tax return filed next year. See supra at 3. Accordingly, a TRO is unlikely to give plaintiff the immediate relief he seeks. V. The Equities and Public Interest Favor Denying a TRO.
Doe fails to establish threshold eligibility for an injunction, so the Court need only conduct a “cursory” review of the other Winter factors. Girl Scouts, 549 F.3d at 1087. Because he only seeks declaratory and injunctive relief in his motion, Doe’s financial situation will not be improved by a preliminary injunction. However, Plaintiff requests an extraordinary order that would invalidate and re-write a unanimously-passed federal statute and enjoin the conduct of two branches of government. A TRO would not preserve the relative positions of the parties, but instead would undermine the public interest of implementing a duly-enacted law. VI. Class Certification Is Premature and Unnecessary at This Stage of the Case.
Plaintiff requests an order certifying his proposed class or, alternatively, certifying a provisional class for purposes of the motion. See Dkt. 13 at 27. It is premature to grant class certification. The United States has not yet responded to the Complaint, let alone taken discovery from Doe on any issue, including whether he is an adequate class representative. Because he brought this case as “John Doe,” the United States has no ability to determine whether he actually is a member of the proposed class. This Court should postpone any decision on class certification to permit the detailed factual inquiry that is required to determine whether certification is appropriate.
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Further, conditional class certification is not required to preserve the relative positions of the parties. Class certification, pending a merits determination, would not alleviate any of the harm that Doe alleges. In addition, none of the extraordinary injunctive and declaratory relief that he requests necessitates class certification at this time. See Dkt. 13 at 28-29.
Moreover, Doe has not established entitlement to his requested preliminary remedy on a class-wide basis at this stage of the proceedings. For example, no evidence has yet been presented capable of identifying class members. As discussed above, Doe has not identified himself. In order to “hold in escrow or otherwise earmark sufficient funds,” id. at 29, the United States would need to know how many people were in the class and how many qualifying children each of them had. Without discovery to determine whether the class can be identified, certification is premature and should not be considered in connection with the TRO motion.
CONCLUSION Plaintiff has not established entitlement to the extraordinary remedy of a preliminary injunction or TRO. He has not established a likelihood of success on the merits, will not suffer irreparable injury, and has alternative, non-equitable remedies. His motion should be denied.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General /s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov
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Case: 1:20-cv-02531 Document #: 22 Filed: 05/18/20 Page 45 of 45 PageID #:209 Certificate of Service
I certify that on May 18, 2020, a copy of the foregoing United States’ Memorandum in Opposition to Plaintiff’s Emergency Motion for Temporary Restraining Order, Preliminary Injunction and/or Declaratory Judgment was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s system.
/s/ Jordan A. Konig Jordan A. Konig Trial Attorney U.S. Department of Justice, Tax Division
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 Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 1 of 42 PageID #:219

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN 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 TREASURY; the U.S.

)

INTERNAL REVENUE SERVICE; and the

)

UNITED STATES OF AMERICA,

)

)

Defendants.

)

Case No. 1:20-cv-02531 SJC

PLAINTIFF’S REPLY IN SUPPORT OF HIS EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR
DECLARATORY JUDGMENT

Now comes Plaintiff, John Doe (“Doe” or “Plaintiff”), on behalf of himself and others

similarly situated (the “Putative Class”), and submits this reply (“Reply”) in support of his

motion for a temporary restraining order, preliminary injunction, and/or declaratory judgment

(Plaintiff's “Emergency Motion”).

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TABLE OF CONTENTS

TABLE OF CONTENTS

ii

TABLE OF AUTHORITIES

iii

PROCEDURAL HISTORY

1

ARGUMENT

2

I. This Court Has Jurisdiction Over Plaintiff’s Claims.

4

A. Congress Has Waived Sovereign Immunity in this Case.

4

B. Neither the Anti-Injunction Act Nor the Declaratory Judgement Act Bar Plaintiff’s

Claims.

6

1. The CARES Act Creates a “Refundable Tax Credit,” not a Tax, and Therefore the

Plain Language of the Anti-Injunction Act Permits Plaintiff’s Claims.

7

2. Courts Have Held that the Earned Income Tax Credit, Another Refundable Tax

Credit, is Subject to Pre-enforcement Review and Not Barred by the Anti-Injunction Act

or the Declaratory Judgment Act.

9

II. Plaintiff has Standing.

11

A. Plaintiff Has Suffered, and Continues to Suffer, an Injury in Fact.

11

B. Neither Amending Filing Status nor Filing a Claim for Refund Would Provide

Plaintiff a Remedy, Let Alone an Adequate Remedy.

16

III. Plaintiff’s Constitutional Claims are Ripe for Adjudication Now.

18

IV. Plaintiff Will Suffer Irreparable Harm Absent a Preliminary Injunction.

32

V. The Equities and Public Interest Favor Granting Injunctive Relief.

34

VI. Class Certification Should Be Granted Now.

35

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TABLE OF AUTHORITIES
Cases Abdel–Fattah v. Commissioner, 134 T.C. 190, (2010) ................................................................. 23 Agyeman v. INS, 296 F.3d 871 (9th Cir.2002).............................................................................. 25 Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951) .......................................................... 14 Ayesh v. United States Immigration & Customs Enf't, No. 08 C 542,
2009 U.S. Dist. LEXIS 117092 (N.D. Ill. Dec. 14, 2009) ........................................................ 26 Badaracco v. Comm’r, 464 U.S. 386 (1984) ................................................................................ 24 Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)....................................................................... 8 Bailey v. George, 259 U.S. 16 (1922)............................................................................................. 8 Barr v. Commissioner, 51 T.C. 693 (1969) .................................................................................. 29 Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................... 11 Blagojevich v. Gates, 519 F.3d 370 (7th Cir. 2008) ................................................................... 4, 5 Bob Jones Univ. v. Simon, 416 U.S. 725 (1974)............................................................................. 7 Boddie v. Connecticut, 401 U.S. 371 (1971) ............................................................................ 3, 14 Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................................ 14 Bowen v. Massachusetts, 487 U.S. 879 (1988)............................................................................... 5 Brown v. Napolitano, 391 Fed. Appx. 346 (5th Cir. 2010) .......................................................... 25 Brushaber v. Union P. R. Co., 240 U.S. 1 (1916)......................................................................... 31 Carey v. Piphus, 435 U.S. 247 (1978) .......................................................................................... 14 Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426 (7th Cir. 2015)............ 35 CIC Services, LLC v. Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020) ........... 11, 19 Ciechon v. City of Chicago, 634 F.2d 1055 (7th Cir. 1980) ......................................................... 33 City of Chi. (Alvarez) v. Shalala, 189 F.3d 598 (7th Cir. 1999) ................................................... 19 Clapper v. Amnesty Int’l USA, 568 U. S. 398 (2013) ................................................................... 13 Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) ................................................................. 7 Commissioner v. Kowalski, 434 U.S. 77 (1977) ........................................................................... 25 Dandridge v. Williams, 397 U.S. 471 (1970) ............................................................................... 20 Drucker v. Comm’r, 697 F.2d 46 (2d Cir. 1982) .......................................................................... 22 EnVerve, Inc. v. Unger Meat Co., 779 F. Supp. 2d 840 (N.D. Ill. 2011) ..................................... 33 Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065 (D.C. Cir. 2015) .............. 7, 8, 9 Freedom From Religion Foundation, Inc. v. Lew, 773 F.3d 815 (7th Cir. 2017) .................. 13, 16 Freedom from Religion Foundation, Inc. v. Schulman,
961 F.Supp.2d 947 (W.D. Wis. 2013) ........................................................................................ 6 Frerck v. John Wiley & Sons, Inc., 850 F. Supp. 2d 889 (N.D. Ill. 2012).................................... 33 Frontiero v. Richardson, 411 U.S. 677 (1973) ............................................................................. 18 Graham v. Richardson, 403 U.S. 365 (1971) ............................................................................... 18 Griffin v. Illinois, 351 U.S. 12 (1956)............................................................................................. 3 Griffin v. Richardson, 344 F.Supp. 1226 (D.Md. 1972) ............................................................... 19 Griswold v. Connecticut, 381 U.S. 479 (1965)............................................................................. 31 Haigh v. Comm’r, 97 T.C.M. (CCH) 1794 (T.C. 2009) ......................................................... 17, 24 Heckler v. Mathews, 465 U.S. 728 (1984) .................................................................... 3, 14, 15, 34 Hofstetter v. Commissioner, 98 T.C. 695 (1992) .......................................................................... 29 Howe v. Varity Corp, 896 F.2d 1107 (8th Cir. 1990) ................................................................... 35
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Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 4 of 42 PageID #:222
In Matter of Laureano, 19 I & N. Dec. 1, 1 (B.I.A. Dec. 12, 1983) ............................................. 33 Ins v. Chadha, 462 U.S. 919 (1983) ............................................................................................. 18 Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239 (1931) ...................................... 14, 15 Johnson v. United States, 422 F.Supp. 958 (N.D. Ind. 1976)....................................................... 22 Lake v. Reno, 226 F.3d 141 (2d Cir. 2000)................................................................................... 27 Levy v. Louisiana, 391 U.S. 68 (1968) ......................................................................................... 20 Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001)......................................................................... 27 Loving v. Virginia, 388 U.S. 1 (1967)....................................................................................... 3, 18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 11, 13 Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978) ................................................................... 22 Matter of Velarde, 23 I&N Dec. 253 (BIA 2002)......................................................................... 25 Mayo Foundation for Medical Education and Research v. United States, 562 U.S. 44 (2001)... 19 Mays v. Dart, No. 20 C 2134, 2020 U.S. Dist. LEXIS 62326 (N.D. Ill. Apr. 9, 2020)................ 35 McElrath v. Califano, 615 F.2d 434 (7th Cir. 1980) .................................................................... 28 Meyer v. Nebraska, 262 U.S. 390 (1923) ....................................................................................... 3 Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) ................................. 35 Michigan v. United States Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011) ..................... 6 Mueller v. Allen, 463 U.S. 388 (1983) .......................................................................................... 19 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) ..................... 8, 31 Nelson v. Regan, 731 F.2d 105 (2d Cir. 1984) ............................................................................. 10 Oyama v. California, 323 U.S. 633 (1948)................................................................................... 18 Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................... 28 Regan v. Taxation With Representation, 461 U.S. 540 (1983)..................................................... 20 Roberts v. United States Jaycees, 468 U.S. 609 (1984)............................................................ 3, 33 Schinasi v. Commissioner, 53 T.C. 382 (1969) ............................................................................ 24 Schlesinger v. Ballard, 419 U.S. 498 (1975) ................................................................................ 15 Schneider v. Rusk, 377 U.S. 163 (1964) ....................................................................................... 15 Schweiker v. Wilson, 450 U.S. 221 (1981) ................................................................................... 20 Skinner v. Oklahoma, 316 U.S. 535 (1942) .................................................................................... 3 Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851 (1986) ........................................................ 10 Sorenson v. Secretary of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985)...................... 10, 11, 13 Sugarman v. Dougall, 413 U.S. 634 (1973) ................................................................................. 20 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)....................................................... 14, 15 Takahashi v. Fish & Game Com., 334 U.S. 410 (1948) ................................................................. 3 Trudeau v. Federal Trade Com’n, 456 F.3d 178 (D.C. Cir. 2006)............................................. 5, 6 United States v. All Funds on Deposit with R.J. O'Brien & Assocs.,
783 F.3d 607 (7th Cir. 2015) ...................................................................................................... 8 United States v. Windsor, 570 U.S. 744 (2013) ...................................................................... 21, 22 Valley Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464 (1982).......................................................................................................... 11 Warth v. Seldin, 422 U. S. 490 (1975).......................................................................................... 13 Weinberger v. Salfi, 422 U.S. 749 (1975)..................................................................................... 29 Wen Yuan Chan v. Lynch, 843 F.3d 539 (2016) ........................................................................... 25 Zablocki v. Redhail, 434 U.S. 374 (1978)..................................................................................... 22
Statutes 28 U.S.C. § 1331............................................................................................................................. 4
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Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 5 of 42 PageID #:223
28 U.S.C. § 1367(a) ........................................................................................................................ 4 5 U.S.C. § 702................................................................................................................................. 5 8 USCS § 1186a(b) ....................................................................................................................... 26 I.R.C. § 107 ................................................................................................................................... 13 I.R.C. § 32(b) ................................................................................................................................ 10 I.R.C. § 32(d) ................................................................................................................................ 10 I.R.C. § 61 ..................................................................................................................................... 23 I.R.C. § 6212 ................................................................................................................................. 17 I.R.C. § 6428 .......................................................................................................................... passim I.R.C. § 7421(a) .............................................................................................................................. 7 I.R.C. § 871 ................................................................................................................................... 23 Other Authorities 66 Stat. 163 at Sec. 319(a) ............................................................................................................ 34 Coronavirus Aid, Relief, and Economic Security (“CARES”) Act,
Pub. L. No. 116-136, H.R. 748, 116th Cong. (2020)......................................................... passim Regulations 8 C.F.R. § 204.2(a)(1)(3)(iii)(B) ................................................................................................... 26 Treas. Regs. 1.6013-1(a)(1) .................................................................................................... 18, 25 Constitutional Provisions USCS Const. Amend. 1 .................................................................................................................. 3 USCS Const. Amend. 5 ................................................................................................................ 14
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Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 6 of 42 PageID #:224
PROCEDURAL HISTORY On April 24, 2020, Plaintiff filed a class action complaint (the “Complaint”) challenging the Coronavirus Aid, Economic Relief, and Security Act (the “CARES Act” or “Act”) and alleging violations of his constitutional rights. See Dkt. 1. Plaintiff subsequently filed a First Amended Complaint (the “FAC”) and his Emergency Motion. See Dkts. 11 & 13. On May 2, 2020, Plaintiff filed his Second Amended Complaint (the “SAC”). See Dkt. 20. The CARES Act creates a refundable tax credit for any eligible individual who holds a social security number (“SSN”) by adding 26 U.S.C. § 6428 to the Internal Revenue Code (“I.R.C.”). Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116136, H.R. 748, 116th Cong. (2020). Section 6248 provides an Advance Payment to all eligible individuals on or before December 31, 2020 (the “Advance Payment”). I.R.C. § 6428(f)(3)(A). The Advance Payment should be made “as rapidly as possible,” and Congress directed the Secretary of the Treasury to conduct a public awareness campaign regarding “information about availability of the credit and rebate.” CARES Act, § 2201(e). However, under the exclusion provision found in § 6428(g)(1)(B) (the “Exclusion Provision”), Plaintiff and the Putative Class are not eligible for Advance Payments under the Act because they filed taxes jointly with their spouses, who do not hold SSNs. I.R.C. § 6428(g). The “Advance Payment” must be paid before December 31, 2020, or not at all because. Congress expressly forbid the Commissioner of Internal Revenue from issuing any Advance Payment later: “[n]o refund or credit shall be made or allowed under this subsection after December 31, 2020.” I.R.C. § 6428(f)(3)(A). Defendants 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
1

Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 7 of 42 PageID #:225
of S. 3548 CARES Act; Steven Mnuchin, in his individual and official capacity as the 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 (collectively “Defendants”) filed their memorandum in opposition to Plaintiff’s Emergency Motion (“Memo in Opp.”) on May 18, 2020. See Dkt 22.
Defendants assert that they cannot be sued in their individual or official capacities (see Memo in Opp. at 9-14), and instead suggest that the proper procedure for challenging Plaintiff’s eligibility for the Advance Payment is to proceed under I.R.C. § 7422(a). See Memo in Opp. at 11-13. Defendants do not deny that Plaintiff and the Putative Class have been denied equal access to the Advance Payment. Instead, Defendants argue that Plaintiff has no standing, may proceed only through a refund suit under section 7422 of the I.R.C., and invoke the AntiInjunction Act (AIA), I.R.C. § 7421, and the Declaratory Judgment Act, 28 U.S.C. § 2201(a), as jurisdictional bars to any suit outside of section 7422. See Memo in Opp. at 13 n. 7. Defendants are patently incorrect. An injunction is the only adequate remedy to provide Plaintiff and the Putative Class equal treatment under the law.
As of the date of filing this Reply, Plaintiff and the Putative Class continue to be denied their constitutional right, as citizens of the United States, to the Advance Payment that has already been issued to over one hundred million Americans and – by its own terms – must be issued on or before December 31, 2020, or not at all. I.R.C. § 6428(f)(3)(A). Injunctive relief must issue here to preserve those rights and prevent irreparable harm.
ARGUMENT The Memo in Opp. barely scratches the surface of the CARES Act’s constitutional violations, and instead is almost entirely devoted to several ill-fated arguments as to why
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jurisdiction and standing are lacking. This Court’s jurisdiction and Plaintiff’s standing are both on firm footing, however, and Defendants’ arguments to the contrary should be rejected. Furthermore, Plaintiff and the Putative Class’s constitutionally protected rights are clearly impacted by the Exclusion Provision. First, marriage is recognized as one of the fundamental personal rights essential to the orderly pursuit of freedom and happiness, with great importance in our society. Boddie v. Connecticut, 401 U.S. 371, 376 (1971), citing Loving v. Virginia, 388 U.S. 1 (1967); Skinner v. Oklahoma, 316 U.S. 535 (1942); Meyer v. Nebraska, 262 U.S. 390 (1923). The fundamental right of marriage evokes the freedoms of association embodied in our First Amendment. USCS Const. Amend. 1. Roberts v. United States Jaycees, 468 U.S. 609, 61920 (1984). Moreover, the Supreme Court has further established a statute may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of power. Boddie, supra, at 379. (“[T]his Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual’s exercise of [First Amendment] Rights”). Equal Protection and Due Process are implicated when laws discriminate against people for: whom they marry; alienage; for poverty; and for class. Id. at 385, citing Takahashi v. Fish & Game Com., 334 U.S. 410 (1948), Griffin v. Illinois, 351 U.S. 12 (1956), Skinner v. Oklahoma, 316 U.S. 535 (1942). Indeed, the right to equal treatment guaranteed by the Constitution is paramount. As the Supreme Court emphatically held in Heckler:
[W]e have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (internal citations omitted). Here, Plaintiff,
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because of his marriage to a non-U.S. Citizen, is being stigmatized and treated as inferior. An injunction mandating equal treatment would provide him (and the Putative Class) with redress. I. This Court Has Jurisdiction Over Plaintiff’s Claims.
26 U.S.C. § 1331 (“Section 1331”) confers jurisdiction over Plaintiff’s claims upon this Court, as they arise under the Constitution of the United States. Defendants’ misleading headings, that the “Court does not have subject matter jurisdiction” and that the statutes at issue here do “not confer jurisdiction” defy belief. See Memo in Opp. at 9-10. Section 1331 unequivocally confers jurisdiction here, as it plainly states that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Section 1367 similarly allows jurisdiction over any supplemental claims “that are so related to claims in the action within [the court’s] original jurisdiction that they form a part of the same case or controversy.” 28 U.S.C. § 1367(a). Defendants wisely do not repeat this nonsense – that this Court does not actually have jurisdiction over Constitutional claims – in the Memo in Opp., but instead rest on sovereign immunity. Defendants are wrong.
A. Congress Has Waived Sovereign Immunity in this Case. Where, as here, a plaintiff raises a valid claim that arises under federal law, the federal government is the defendant, and the suit does not seek money damages, “jurisdiction is secure.” Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008). The Administrative Procedure Act (“APA”), waives sovereign immunity for the kind of relief Plaintiff and the Putative Class seek, so long as the federal statute at issue authorizes review of agency action. Id. at 372. The APA provides an express waiver of sovereign immunity where, as here, the plaintiff seeks equitable relief. 5 U.S.C. § 702.1 The relevant statute provides:
1 Memo in Opp. at 13. “A reply addressing an argument raised in a response brief does not warrant the filing of a surreply. See Schaefer-Larose v. Eli Lilly and Co., 663 F.Supp.2d 674, 698 (S.D. Ind. 2009) (finding a magistrate
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An action in a court of the United States seeking relief other than money damages and stating a claim that an agency [. . .] acted or failed to act [. . .] shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702. In Blagojevich v. Gates, the then-governor of Illinois sued the Secretary of Defense under 28 U.S.C. §§ 1331 and 1346(a)(2). The District Court for the Central District of Illinois dismissed the suit sua sponte because the government had not waived sovereign immunity and thus, the court lacked jurisdiction. Blagojevich, 519 F.3d at 370. The Seventh Circuit Court of Appeals reversed and remanded the case, holding Section 702 of the APA is generally applicable, regardless of whether a claim is “under the APA;” and Section 702 governs when “any federal statute authorizes review of agency action. Id. at 372 (citing Bowen v. Massachusetts, 487 U.S. 879 (1988)) (emphasis in original). According to the Seventh Circuit, provisions such as “5 U.S.C. § 701(a), and § 706(2)(A) allow[] a court to set aside agency action that is ‘not in accordance with law,’” and that law is not limited to “another portion of the APA.” Id. The Court of Appeals for the District of Columbia has reached the same conclusion. In Trudeau v. Federal Trade Commission, the Federal Trade Commission sought to dismiss a lawsuit for lack of jurisdiction, arguing that the court had no jurisdiction over the infomercial producer plaintiff’s First Amendment claims against the FTC. Trudeau v. Federal Trade Com’n, 456 F.3d 178, 184-185 (D.C. Cir. 2006). The Court of Appeals held that Section 1331 provided jurisdiction. Id. at 185. The APA’s “waiver of sovereign immunity applies to any suit whether under the APA or not.” Id. at 186.
judge was well within his discretion in denying leave to file a surreply where there was no new evidence and “the only ‘new’ arguments raised in the reply were in response to the arguments raised in the response brief.”)” .
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Claims challenging Department of Treasury and Internal Revenue Service action – such as distributing billions of dollars of Advance Payments to United States persons but unconstitutionally excluding U.S. persons who are married to individuals who do not have SSNs – have fared the same. For example, in Freedom from Religion Foundation, Inc. v. Schulman, the District Court for the Western District of Wisconsin held that the APA waived sovereign immunity when the Plaintiff challenged IRS policy “pursuant to the Fifth Amendment’s equalprotection clause and the Establishment Clause.” 961 F.Supp.2d 947, 954 (W.D. Wis. 2013). Despite the plaintiff’s lack of identifying final agency action or action that was committed to agency discretion, the court held “the second sentence of § 702 still waives the United States’s [sic] sovereign immunity … because that sentence is not limited to claims brought under the APA itself but is generally applicable to any action for prospective relief, including an action involving a constitutional challenge.” Id. (emphasis added). Michigan v. United States Army Corps of Engineers, cited by Defendants on page 13 of the Memo In Opp., is particularly instructive. 667 F.3d 765 (7th Cir. 2011). In that case, the Seventh Circuit held that the second sentence of § 702 waives sovereign immunity when “any federal statute authorizes review of agency action, as well as in cases involving constitutional law.” Id. at 775. Section 702 applies here, because the IRS, a federal agency, has issued Advance Payments to over one hundred million Americans pursuant to the CARES Act, but Plaintiff and the Putative class are ineligible to receive the Advance Payment due to the unconstitutional Exclusion Provision.
B. Neither the Anti-Injunction Act Nor the Declaratory Judgement Act Bar Plaintiff’s Claims.
Defendants correctly point out that if Plaintiff’s claims were to be construed as an attempt to restrain the assessment and collection of tax, it would be barred by both the Anti-Injunction Act (“AIA”) and the Declaratory Judgment Act (“DJA”). See Memo in Opp. at 13 n.7.
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Defendant is also correct that the CARES Act creates a “refundable tax credit.” See Memo in Opp. at 2. It is precisely for that reason – that the CARES Act created a refundable tax credit and not a tax – that the AIA and the DJA do not bar this Court’s review of Plaintiff and the Putative Class’s claims. Both the AIA’s text and its prior conclusive judicial interpretation make clear that Plaintiff’s claims cannot be construed as an attempt to “restrain[] the assessment and collection of any tax [...]” within the meaning of the statute, thereby removing the predicate that the Government itself concedes is essential for applying the AIA.
1. The CARES Act Creates a “Refundable Tax Credit,” not a Tax, and Therefore the Plain Language of the Anti-Injunction Act Permits Plaintiff’s Claims.
The AIA does not bar this suit because Plaintiff and the Putative Class do not seek to restrain assessment or collection of tax. The Anti-Injunction Act provides:
Except as provided […] no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. I.R.C. § 7421(a). The CARES Act creates a refundable tax credit to be distributed as an Advance Payment. Providing equal access to the Advance Payment to Plaintiff and the Putative Class will not restrain assessment or collection of tax. I.R.C. § 6428(f)(3(A). The DJA, 28 U.S.C. § 2201(a), which generally bars federal courts from granting declaratory judgments “with respect to Federal taxes,” has been deemed to be “coterminous” with the AIA. Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015) (citing Cohen v. United States, 650 F.3d 717, 730-31 (D.C. Cir. 2011) (en banc)); see also Bob Jones Univ. v. Simon, 416 U.S. 725, 733 n.7 (1974). Accordingly, neither the AIA or the DJA inhibit this Court’s jurisdiction or the APA’s waiver of sovereign immunity. The Advance Payment is not a tax. Every statutory interpretation “begins with the text[.]” United States v. All Funds on Deposit with R.J. O'Brien & Assocs., 783 F.3d 607, 622 (7th Cir.
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Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 13 of 42 PageID #:231
2015). The AIA’s text denies a court’s jurisdiction from maintaining a “suit for the purpose of restraining the assessment or collection of any tax.” I.R.C. § 7421 (emphasis added). The Supreme Court emphasized the term “tax” in AIA’s text in National Federation of Independent Business v. Sebelius, 567 U.S. 519, 543-46 (2012) (“NFIB”), as it considered whether the AIA precluded the Court from considering the merits of a constitutional challenge to the Affordable Care Act before payment of the shared responsibility payment. The Court noted that “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant.” NFIB, 567 U.S. at 544. Holding that label to be dispositive for purposes of invoking the AIA, the Court explained that it has “applied the [AIA] to statutorily described ‘taxes’ even where that label was inaccurate.” Id. As support, the Court cited Bailey v. George, 259 U.S. 16 (1922), in which it applied the AIA to the so-called child labor tax, even though it had struck that tax down as exceeding Congress’s taxing power in a companion case released the same day, Bailey v. Drexel Furniture Co., 259 U.S. 20, 44 (1922).
It follows that the AIA applies only when the item at issue is an “exaction,” i.e., an amount due the Government, when Congress chooses to call that exaction a “tax.” The D.C. Circuit took that rationale to its logical conclusion in Florida Bankers Association v. U.S. Department of the Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015), declining to reach the merits of a challenge to a regulation imposing reporting requirements on banks, a “penalty” codified at 26 U.S.C. § 6721(a). Then-Judge Kavanaugh stated that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter.” Id. at 1068. He explained, “[i]f the penalty here were not itself a tax, the AntiInjunction Act would not bar this suit.” Id. at 1069.
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By comparison, and as conceded by Defendants (see Memo in Opp. at 2), the Advance Payment under section 6428 is a refundable credit—the inverse of an exaction or a tax. To be sure, section 6211(b)(4) states that the refundable portion of the credit under section 6428 “shall be taken into account as negative amounts of tax.” But the lead-in to that provision limits that treatment to the “purposes of subsection (a).” That subsection—section 6211(a)—is concerned solely with defining the term “deficiency.” In other words, unlike in Florida Bankers Association, where section 6671(a) deemed the payment at issue a tax for all “purposes of title 26,” section 6211(b)(4) requires that the payment at issue here be considered “negative amounts of tax” only for defining a deficiency. Because a section 6428 refundable credit is the opposite of an exaction, and no provision of the Code deems it a negative amount of tax for all purposes of title 26, or at least for purposes of section 7421, by its terms the latter does not apply. Thus, the Advance Payment is not a tax and there is no bar to Plaintiff’s claims being before this Court.
2. Courts Have Held that the Earned Income Tax Credit, Another Refundable Tax Credit, is Subject to Pre-enforcement Review and Not Barred by the Anti-Injunction Act or the Declaratory Judgment Act.
Defendants rightly compare the Earned Income Tax Credit (“EITC”) to the CARES Act Advance Payment. The EITC is a “refundable tax credit, just like the CARES Act credit.” See Memo in Opp. at 5-6. Defendants note that the EITC is unavailable to Plaintiff and the Putative Class for the same reasons that the Advance Payment is not available to them: their marriage to a person who lacks an SSN. Id. The EITC was intended “to negate the disincentive to work caused by Social Security taxes.” Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851, 858 (1986). The credit is available to extremely low-income families; the higher a family’s adjusted gross income (“AGI”), the lower the credit. I.R.C. § 32(b). Married individuals qualify only if they file their federal income tax returns jointly. I.R.C. § 32(d).
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It is precisely for that reason – that the EITC is a refundable tax credit and not a tax, that courts have unequivocally held that the AIA and the DJA do not apply to bar class action lawsuits based upon refundable tax credits. For example, in Nelson v. Regan, 731 F.2d 105 (2d Cir. 1984), a certified class sought declaratory and injunctive relief because refundable portions of the EITC were being intercepted pursuant to section 6402(c) of the I.R.C. to satisfy past due child support obligations. On appeal, the Second Circuit held that neither the AIA or the DJA barred a hearing on the merits, because “the tax intercept program [seizing past due child support] does not apply to refunds or payments of earned income credits.” Id. at 110-12.
A circuit split developed on the issue when the Ninth Circuit came out the other way in Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985), holding that ETICs were subject to being intercepted under section 6402(c). The Ninth’s Circuit’s holding was premised on the conclusion that the EITC was undisputedly owed to petitioner and undisputedly not owed to the United States as taxes.” Sorenson, 752 F.2d at 1437 (emphasis added). The district court similarly dismissed an AIA challenge. Eventually, the Supreme Court resolved that circuit split by siding with the Ninth Circuit in Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851 (1986), holding that the EITC was subject to the past due child support intercept program. Critically, however, the Government raised neither the AIA nor the DJA at the Supreme Court. Thus, every court to hear a challenge to the propriety of including refundable EITCs in tax refunds intercepted and directed toward back child-support obligations was able to proceed to the merits of the challenge, notwithstanding the AIA or DJA.
Refundable tax credits like the EITC – and the Advance Payment – are “undisputedly not owed to the United States as taxes” (Sorenson, 752 F.2d at 1437) and do not implicate the AIA
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or the DJA.2 Sovereign immunity is unequivocally waived by the APA, and neither the AIA nor the DJA create any additional jurisdictional hurdles. II. Plaintiff has Standing.
Plaintiff and the Putative Class, all of whom have suffered and continue to suffer an actual injury that is directly traceable to Defendants’ conduct and will unequivocally be redressed by a favorable decision here, have standing. Defendants make two arguments in their attempt to support the fatally flawed conclusion that Plaintiff lacks standing. First, that Plaintiff has not been denied the CARES Act Credit (see Memo in Opp. at 15-17) and second, that Plaintiff may be, or may become, eligible for the CARES Act Credit. See Memo in Opp. at 17. Both arguments misconstrue the facts of this case and applicable law, which plainly put Plaintiff’s injuries on solid ground before this Court.
To satisfy the “case” or “controversy” requirement of Article III, which is the “irreducible constitutional minimum” of standing, a plaintiff must, generally speaking, demonstrate that he has suffered “injury in fact,” that the injury is “fairly traceable” to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-472 (1982)). A. Plaintiff Has Suffered, and Continues to Suffer, an Injury in Fact. Plaintiff’s injury in fact is easily and readily discernible. The CARES Act, enacted in response to a global pandemic the likes of which this generation has never seen,3 created a
2 On May 4, 2020, the Supreme Court granted certiorari to CIC Services, LLC v. Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020) to resolve an apparent Circuit Split between the Sixth, Seventh and Tenth Circuits on the question of whether the Anti-Injunction Act bars challenges to unlawful regulatory mandates issued by administrative agencies when those mandates are not taxes. 3 Statement by Secretary Steven T. Mnuchin on the Passage of the CARES Act, U.S. Department of the Treasury (March 27, 2020), https://home.treasury.gov/index.php/news/press-releases/sm959 (last visited May 29, 2020).
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refundable tax credit. I.R.C. § 6428. The Secretary of the Treasury is directed to issue the credit as an Advance Payment, I.R.C. § 6248(f)(3)(A), “as rapidly as possible,” and to conduct a public awareness campaign to provide the public “information about availability of the credit and rebate.” CARES Act, § 2201(e). Plaintiff has not and will not ever receive the emergency Advance Payment absent this Court’s intervention. According to the Treasury Department, the Internal Revenue Service has issued Advance Payments to 152,167,600 Americans, including almost 750,000 Americans residing outside of the United States, totaling over $257,954,545,196.00. See, IR-2020-101, May 22, 2020, attached hereto and incorporated herein as Exhibit A. It is true that Plaintiff and the Putative Class are permitted to (though not required to) someday file a claim for refund and dispute the constitutionality of the Exclusionary Provision. See discussion infra Part II.B. Doing so will not obviate the immediate need for this Court’s intervention or redress Plaintiff’s ongoing injury, denying him eligibility to receive the Advance Payment unlike the 152,167,600 Americans who have already received such a payment. None of the cases cited by Defendants for the mistaken proposition that Plaintiff must apply and be denied for benefits before his claim is ripe apply to the situation here. Plaintiff’s harm is not speculative, it is not conjectural, and it is not hypothetical. Plaintiff’s harm is real, it is now, and it is continuing so long as he remains ineligible for the Advance Payment by virtue of the Exclusionary Provision. I.R.C. § 6428(g)(1)(B).
One case cited by Defendants actually touches on the I.R.C., and is worthy of closer inspection. In Freedom From Religion Foundation, Inc. v. Lew, an atheist organization sued the Secretary of the Treasury and IRS Commissioner. 773 F.3d 815 (7th Cir. 2017). The Foundation argued that the so-called “parsonage exemption” codified at I.R.C. § 107, which provides certain
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tax deductions to “ministers of the gospel,” but ostensibly not atheists, violated the establishment clause of the First Amendment and the equal protection requirement in the Fifth Amendment. Id. at 818-19. The “parsonage exemption” is not – like the CARES Act or the EITC – a refundable tax credit. It provides for certain benefits such as housing to be exempt from gross income. Id. n.1; I.R.C. § 107. It is well-established that tax deductions, unlike credits, granted legislative grace4 and the Seventh Circuit’s holding that the Foundation had no standing to Plaintiff or this Case. Second, the parsonage exemption does not – like the CARES Act does – provide for any form of “Advance Payment” or advance credit. Sorenson, 752 F.2d at 1437
Defendants incorrectly assert Plaintiff lacks an “injury in fact.” This ensures plaintiffs have a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 U. S. 490, 498 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, supra, at 560 (some internal quotation marks omitted). An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citing Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409, 414, n.5 (2013)). Plaintiff undoubtedly has a personal stake because he has been denied the Advance Payment during this Pandemic. Defendants’ assertion that Plaintiff’s claims are premature because he has not yet applied for and been denied the benefit at issue is belied by the IRS Commissioner’s contrary statements that the payments are being distributed “automatically” and there is “no action required for most people” to receive the Advance Payment. See IR 2020-61, March 30, 2020, attached hereto and incorporated herein as Exhibit B. The Advance Payment is not akin to a
4 See, e.g., Northern California Small Business Assistance, Inc. v. Commissioner, 153 T.C. 65, 70 (2019).
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parsonage exemption that – like all tax deductions – is a matter of legislative grace. It has been
and will continue to be automatically distributed to eligible taxpayers. Defendants have launched
an unprecedented public awareness campaign regarding the Advance Payment, and even issued
prepaid debit cards to those eligible individuals for whom the IRS does not have bank account
information.5
Plaintiff’s exclusion from eligibility for the Advance Payment is ongoing, the injury is
more than actual and imminent, as the Plaintiff is being deprived of equal treatment right now.6
This injury is directly traceable to the actions of the Defendants. Only an injunction prohibiting
the Defendants from continuing this policy of unequal treatment will prevent any further injury.
Freedom from Religion Found., Inc. v. Shulman, 961 F. Supp. 2d 947, 951 (W.D. Wis. 2013).
Accordingly, the far-fetched argument that Plaintiff’s harm is anything but actual should be
rejected.
Even if this Court were to engage in the mental gymnastics required to ignore the actual,
ongoing injury at issue, the Supreme Court has permitted pre-enforcement review under
circumstances that render the threatened enforcement sufficiently imminent. Susan B. Anthony
5 Defendant Mnuchin stated, “Treasury and the IRS have been working with unprecedented speed to issue Economic Impact Payments to American families. Prepaid debit cards [… ]allow us to deliver Americans their money quickly.” See Treasury is Delivering Millions of Economic Impact Payments by Prepaid Debit Card, May 18, 2020 attached hereto and incorporated herein as Exhibit C. 6 Plaintiff has already suffered an injury in fact. See Heckler v. Mathews, 465 U.S. 728, 738–40 (1984) (victim of unequal treatment has standing to seek equal treatment); see also Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931) (cause of action for equal protection accrues as soon as the plaintiff is deprived of equal treatment). The Exclusion Provision deprives Plaintiff and the Putative Class of the right to equal protection and procedural due process, which are “absolute” rights “in the sense that they do not depend upon the merits of Plaintiff’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266 (1978), (citing Boddie v. Connecticut, 401 U.S. 371, 375 (1971)); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J., concurring)). The Fifth Amendment provides, in pertinent part, that no person shall “be deprived of life, liberty, or property, without due process of law.” USCS Const. Amend. 5. See also Boddie v. Connecticut, 401 U.S. 371, 375 (1971). Although the Fifth Amendment contains no Equal Protection Clause as does the Fourteenth Amendment, the Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is “so unjustifiable as to be violative of due process.” Schlesinger v. Ballard, 419 U.S. 498, 500 n.3 (1975), quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954). See also, Schneider v. Rusk, 377 U.S. 163, 168 (1964).
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List v. Driehaus, 573 U.S. 149, 159 (2014). Accordingly, the harm will occur with absolute certainty, absent this Court’s intervention. Id at 158. In Heckler v. Matthews, the Supreme Court articulated the requirements for evaluating standing for purposes of the constitutional “case or controversy requirement.” 465 U.S. 728 (1984). A “plaintiff ‘must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ [ ] and that the injury ‘is likely to be redressed by a favorable decision.” Id. at 738 (internal citations omitted). In Heckler, the plaintiff alleged an injury the court has “long recognized as judicially cognizable” – claims he is “subject[] to unequal treatment …solely because of his gender.” Id. When, as here, “the right invoked is that of equal treatment, the appropriate remedy is a mandate of equal treatment.” Id. at 740, (quoting Iowa-Des Moines Nat'l Bank v. Bennett, 284 U.S. 239, 247 (1931)).
While the CARES Act does create a refundable tax credit operating as an Advance Payment from eligible individuals’ 2020 tax returns. Defendants misconstrue the statute in arguing that it does not provide the “right to immediate payment of an advance refund.” See Memo in Opp. at 16. The CARES Act expressly provides for an Advance Payment, provides that the payment should be made “as rapidly as possible,” and Congress directed the Secretary of the Treasury to conduct a public awareness campaign to provide the public “information about availability of the credit and rebate.” CARES Act, § 2201(e). Congress wanted this Advance Payment pushed into the hands of Americans, at once, as evidenced by the statute’s directive that the Advance Payment must be made before the end of the year. No future action on the part of Plaintiff will change eligibility to receive the Advance Payment, which must be issued before the end of 2020 or not at all. Plaintiff and the Putative Class have already been denied the benefit afforded to over one hundred million Americans who are not married to individuals who do not
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have an SSN. Here, because Defendants have issued over one hundred million Advance Payments to other United States citizens, Plaintiff and the Putative Class have not received an Advance Payment, and they will not receive one under the current law, they have already personally “been denied equal treatment.” C.f., Freedom from Religion Foundation v. Lew, 773, F.3d 815 (7th Cir. 2014) (cited in Memo in Opp. at 16). Finally, while section 6248(e) requires a “truing up” of the Advance Payment with the actual amount of the 2020 credit (computed based on 2020 status and liability), it does not require repayment. Section 6248(e) provides, “The amount of credit which would (but for this paragraph) be allowable under this section shall be reduced (but not below zero) by the aggregate refunds and credits made or allowed to the taxpayer under subsection (f).” I.R.C. § 6428(e) (emphasis added). In other words, the Advance Payment is a gift conferred on United States citizens who meet certain income eligibility requirements, unless they happen to be married to someone who does not have an SSN.
B. Neither Amending Filing Status nor Filing a Claim for Refund Would Provide Plaintiff a Remedy, Let Alone an Adequate Remedy.
Throughout the Memo in Opp., Defendants suggest alternative forms of relief Plaintiff may seek and ways Plaintiff may eventually qualify for the CARES Credit. See Memo in Opp. at 11 (file a claim for refund under § 7422), 17 (file a 2019 tax return under married filing separately status), 17 (join the Armed Forces or have his spouse join the Armed Forces). None of these “suggestions” address Plaintiff’s actual, realized injury: deprivation of the Advance Payment that has already been issued to over one hundred million Americans and must be issued by December 31, 2020 or not at all. I.R.C. § 6428(f)(3)(A). There is no action Plaintiff can take that will provide him with equal protection under the CARES Act as it is written.
If Plaintiff is not provided with the Advance Payment, to claim the CARES Credit, Plaintiff must file an income tax return sometime after filing season opens on or about February
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1, 2021. Plaintiff would either need to (A) file a tax return claiming the credit and file a statement explaining he is not entitled to the credit but is claiming it and contesting the unconstitutional aspects of the law, or (B) file a tax return that does not claim the credit, pay his tax in full, and months later file an amended return claiming the credit as a claim for refund following the procedures in I.R.C. § 7422. If Plaintiff selects option A, he opens himself up to potential civil and criminal liability, see, I.R.C. §§ 6662, 7201, and must litigate his right to the credit in United States Tax Court. I.R.C. § 6212. If Plaintiff selects option B, he will have to wait until at least November of 2021 before he can even file suit against the United States. No matter what avenue Plaintiff chooses, he will never receive the Advance Payment, which must be issued by December of 2020, and the earliest judicial intervention is years away. As the last date for any taxpayer to receive the Advance Payment is unequivocally set for December 31, 2020, Defendants’ contention that a refund suit under § 7422 provides Plaintiff an adequate – and sole – remedy would be laughable if Plaintiff and the Putative Class’s health, safety, and welfare were not so dire and the facial discriminatory intent and impact not so blatant.
Defendants’ suggestion that Plaintiff file his 2019 tax return as “married filing separately” (see Memo in Opp. at 17) is equally unhelpful, but it does help illustrate the patent unfairness and unequal treatment accorded Plaintiff and the Putative Class by the CARES Act. Plaintiff has already filed his tax return for 2019 as “married filing jointly” (“MFJ”) and in general taxpayers may amend federal income tax returns from “married filing separately” (“MFS”) to MFJ but the reverse is not true. Treas. Regs. 1.6013-1(a)(1); Haigh v. Comm’r, 97 T.C.M. (CCH) 1794 (T.C. 2009). Even if Plaintiff had not filed his tax return for tax year 2019 already, had he filed with MFS status his federal income tax liability would have increased by over 12%. See Affidavit of Harold Katz, CPA, attached hereto and incorporated herein as Exhibit
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D. Taxpayers who file MFS instead of MFJ almost always owe more in tax. Id. Defendants cannot seriously contend that in order to receive equal treatment under the CARES Act, Plaintiff and the Putative Class should self-select a more onerous tax treatment. Regardless of the availability of some future possible avenue to the CARES Act credit, Plaintiff and the Putative Class have already been denied their emergency Advance Payments to the detriment of their health, safety, and welfare as a result of the discriminatory actions, and absent judicial intervention they will succumb to the very harm the CARES Act intended to prevent. Accordingly, there is no adequate remedy at law. III. Plaintiff’s Constitutional Claims are Ripe for Adjudication Now.
Plaintiff is likely to succeed on the merits of his underlying claims that the CARES Act is unconstitutional. The Exclusion Provision of the CARES Act violates the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. Defendants cite numerous cases to argue that if a challenged action does not violate the Constitution, it must be sustained. See Memo in Opp. at 18. Plaintiff agrees. However, here, Plaintiff alleges that the Section 6428(g)(1) does violate the Constitution, and therefore cannot be sustained. The fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Ins v. Chadha, 462 U.S. 919, 944 (1983).
Statutory classifications will be strictly scrutinized when they include and impingement on a fundamental right and/or a “suspect class,” including classifications based on race, Loving v. Virginia, 388 U.S. 1 (1967), alienage, Graham v. Richardson, 403 U.S. 365 (1971), ancestry or nationality, Oyama v. California, 323 U.S. 633 (1948), and sex, Frontiero v. Richardson, 411 U.S. 677 (1973). Plaintiff will be denied the Advance Payment they would otherwise qualify for, but for the constitutionally protected association with a person who does not have an SSN.
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Oyama, supra, at 640 (applying strict scrutiny: “there is absent the compelling justification which would be needed to sustain discrimination of that nature”). This deprivation is subject to strict scrutiny, and even if it wasn’t, there is no rational basis for denying them the Advance Payment. To the extent Defendants seek to argue that all tax statutes are unilaterally subject to strict scrutiny review, this is precisely the kind of “tax exceptionalism” rejected by the Supreme Court in Mayo Foundation for Medical Education and Research v. United States, 562 U.S. 44 (2001) and at issue before the Supreme Court now in CIC Services, LLC v. Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020).
Defendants mischaracterizes the holding in Schweiker v. Wilson, 450 U.S. 221, 230 (1981), claiming that the equal protection obligation imposed by the Due Process Clause only requires rational basis review. See Memo in Opp. at 18. Here is what the Court actually held:
Unless a statute employs a classification that is inherently invidious or that impinges on fundamental rights, areas in which the judiciary then has a duty to intervene in the democratic process…. this Court consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives. Schweiker v. Wilson, 450 U.S. 221, 230 (1981) (emphasis added). In this Case, the treatment of Plaintiff both impinges on the fundamental right to marry and is based upon an inherently invidious classification, subject to strict scrutiny. Sugarman v. Dougall, 413 U.S. 634, 642, (1973). None of the cases cited by Defendants for the proposition that rational basis applies are applicable here. See, e.g.., City of Chi. (Alvarez) v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999) (cited in Memo in Opp. at 18) (concerning welfare benefits, construed by the Seventh Circuit as a decision "in the area of immigration and naturalization" not the fundamental right to marriage), Griffin v. Richardson, 344 F.Supp. 1226 (D.Md. 1972) (cited in Memo in Opp. at 18) (finding no
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rational basis for distinguishing between categories of illegitimate children in conferring Social Security benefits); Dandridge v. Williams, 397 U.S. 471 (1970) (cited Memo in Opp. at 18) (finding classification based on size of family impacting welfare benefits unconstitutional); Mueller v. Allen, 463 U.S. 388 (1983) (cited in Memo in Opp. at 19) (not applying rational basis analysis); Regan v. Taxation With Representation, 461 U.S. 540 (1983) (holding that “[i]t is not irrational for Congress to decide that tax-exempt charities . . . should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying.”). None of these cases analyze a statute denying a citizen benefits in contravention of the fundamental right of marriage based upon an inherently invidious classification of the spouse and the mixed-status of the parents of U.S. citizen children.
As Plaintiff alleged in the Emergency Motion, there can be no doubt that the allegations complained of by Plaintiff and the Putative Class affect their fundamental rights and are subject to strict scrutiny. Levy v. Louisiana, 391 U.S. 68, 88 (1968). See Emergency Motion at 23. Both the fundamental right of U.S. Citizens and the invidious classification based on the alienage status of their spouse leaves no doubt that the Exclusion Provision is subject to strict scrutiny and thus is unconstitutional as written and as applied. Id.
Defendants’ Memo in Opp. glaringly omits any rational basis for the Exclusion Provision. Defendants refer to a “policy goal of providing the CARES Act credit only to citizens, nationals, and noncitizens authorized to work in the United States,” but fail to provide any support for such an assertion. See Memo in Opp. at 29. Moreover, Defendants fail to explain how denying the Advance Payment to Plaintiff and the Putative Class would frustrate such a policy goal, if it indeed exists. It is simply untrue that a CARES Act credit could be or would be “jointly” claimed by non-citizens who file jointly with citizens, because the non-citizens would not be entitled to
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the credit as well. A joint tax return would not result in the benefit being afforded to the ITIN holder or other non-SSN holder, and Defendants do not say that it would. Perhaps the policy goal was to keep all funds out of the hands of non-citizens at any cost, even if that cost was to deny the benefit to tax-paying U.S. Citizens who are otherwise entitled to them. If the policy goal is to discourage U.S. Citizens from marrying non-U.S. Citizens and/or to make paths to legal citizenship, then the constitutionality of such a policy is ripe for inquiry.
Defendants would have this Court believe that review of laws under Title 26 of the United States Code is beyond the reach of the federal courts because they “lack expertise in the ‘complex area’ of fiscal policy,” (see Memo in Opp. at 18) and the “power of Congress in levying taxes is very wide.” See Memo in Opp. at 19-20. Setting aside the absurdity of the notion that the judiciary is not capable of reviewing “complex” tax laws, or that Plaintiff’s challenge to the CARES Act exceeds this Court’s capacity, Defendants omitted a key case regarding federal courts’ ability to adjudicate constitutionality of tax provisions. In United States v. Windsor, the Supreme Court held that the Defense of Marriage Act, which denied same sex couples the right to marry, “violated the basic due process and equal protection principles applicable to the Federal Government” under the Fifth Amendment. 570 U.S. 744, 769-70 (2013). Windsor was a tax case in which a widow was ineligible for the same benefit that would have been afforded her if she were married to a man instead of a woman. Id. at 749. The Supreme Court did not consider the provisions complexity. Instead, it held that by paying the tax in full and filing a claim for refund7, she established standing and jurisdiction to challenge her unequal treatment under the tax code and the Defense of Marriage Act. Id.
7 The plaintiff in Windsor, which dealt with estate tax, did not have the benefit of a tax credit allowing her to get into court without paying the tax in full and filing a claim for refund, and so she followed the procedures under I.R.C. § 7422. 570 U.S. at 753.
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The right to marry confers “a dignity and status of immense import.” Windsor, supra, at 768. Marriage is “more than a routine classification for purposes of certain statutory benefits,” and is “subject to constitutional guarantees.” Id. The Court held that the Defense of Marriage Act’s (“DOMA”) “principle effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is not to impose inequality[.]” Id. at 772. The same is true of the Exclusion Provision, which identifies a subset of state-sanctioned marriages and makes them unequal by – as in Windsor – “den[ying] or reduces benefits allowed to families.” Id. at 773. Here, as in Windsor, this Court can only conclude that while “Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by […] Fifth Amendment.” Id. at 774. The right to marry is directly implicated by Section 6428(g)(1), and the principal effect of that Section, just like DOMA, is to identify a subset of state-sanctioned marriages and make them unequal. See also Zablocki v. Redhail, 434 U.S. 374 (1978) (“When a statutory classification significantly interferes with the exercise of a fundamental right [like the right to marriage] it cannot be upheld unless it is supported by sufficiently important […] interests and is closely tailored to effectuate only those interests.”).
None of the cases cited by Defendants relating to alleged unconstitutional classifications in the I.R.C. based solely on marital status govern here. Drucker v. Commissioner acknowledges that statutes that interfere with the right to marry are subject to “rigorous scrutiny,” but holds that where Congress has imposed a potentially higher rate of tax on all married individuals, the different treatment is permissible. Drucker v. Comm’r, 697 F.2d 46 (2d Cir. 1982). Mapes v. United States similarly held that the higher rate of tax imposed on all married couples survives review. Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978). Johnson v. United States, 422 F.Supp. 958 (N.D. Ind. 1976) (upheld different tax rates imposed on individuals based on marital
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and filing status). None of these cases have any bearing, where an Advance Payment has been issued to individuals who meet certain income qualifications, but not individuals who are otherwise eligible but for their spouse’s lack of an SSN. Defendants may not deprive Plaintiffs of the Advance Payment that has been paid to hundreds of millions of Americans – married, single, head of household – but not to individuals whose spouses lack an SSN.
Schinasi v. Commissioner, 53 T.C. 382 (1969), cited at Memo in Opp. at 21, 24, and 28 bears further discussion. The taxpayer in Schinasi argued he should be permitted to file a joint income tax return with his spouse, but was prohibited from doing so based on her nonresident status. Schinasi, 53 T.C. at 383. The Tax Court rightly pointed to the vastly different taxation scheme non-resident aliens adhere to in rejecting a challenge to the different tax treatment afforded the petitioner in that case. Id. at 383. United States persons are taxed on worldwide income. I.R.C. § 61. Nonresident aliens, conversely, are generally taxed on United States income. I.R.C. § 871. Nonresident aliens do not file IRS Form 1040, U.S. Individual Income Tax return, they file IRS Form 1040NR. Treas. Reg. § 1.6012-1(b)(1); see also Abdel–Fattah v. Commissioner, 134 T.C. 190, 192 n.3, (2010) (noting that because nonresident aliens are ineligible for certain credits available on Form 1040, they are required to file Form 1040NR). It is neither surprising nor relevant to this case that the Tax Court rejected a challenge to the petitioner’s inability to file married filing jointly with a nonresident alien spouse. However, the Schinasi court itself forecasted the problem directly at issue here: “[i]t seems clear that the different tax treatment of nonresident aliens would raise problems if one of them filed a joint return with a citizen or resident.” Schinasi, 53 T.C. at 383.
Section 6428(g)(1) interferes with the right to marry because it precludes the Putative Class members from claiming the CARES Act credit or receiving the advance refund of that
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credit. First, Defendants’ argument that “Section 6428(g)(1) is a reasonable restriction, rationally related to Congress’s intent to benefit United States citizens and those nationals and resident aliens eligible for lawful employment,” is untrue on its face. The Putative Class are United States citizens and but for the unconstitutional carve out included in the CARES Act codified as Section 6428(g)(1), would have likely already received the Advance Payment. The second claim made by the Defendants is also false. They claim that “SSN-holders married to non-SSN holders can claim the CARES Act credit by filing a separate return from their spouse.” Id. Even if Plaintiff and the Putative Class could file MFS, doing so does not provide a remedy at all but instead imposes a significant additional tax burden. While some members of the Putative Class may be able to file MFS, Plaintiff has already filed his 2019 IRS Form 1040, U.S. Federal Income tax Return, and may not amend his filing status now.8
Schinasi provides Defendants no more support here than it did for the false proposition that the distinction section 6428(g) makes it permissible. Defendants seem to be arguing that Plaintiff and the Putative Class have a choice: either file MFS and obtain the Advance Payment, or file MFJ and forego the Advance Payment, and that this choice removes the harm from Plaintiff’s claims. If that were true, it would be no more than a “Sophie’s Choice,” requiring Plaintiff to choose between paying over a 12% tax increase and receiving the Advance Payment all of his neighbors have already received. But instead it is a false choice, because Plaintiff has
8 See Treas. Regs. 1.6013-1(a)(1). See Haigh v. Comm’r, 97 T.C.M. (CCH) 1794 (T.C. 2009); see also Exhibit D. Plaintiff’s prior statement that he could amend his tax return was mistaken. See id., see also Dkt. 13 at 26. The deadline for tax return filing has been extended through July 15, 2020 by IRS Notice 2020-23, and Plaintiff could still technically supersede his originally filed MFJ return with an MFS return, but once a filing deadline passes, a tax return cannot be amended from MFJ to MFS. Treas. Regs. 1.6013-1(a)(1). Moreover, taxpayers do not have the ability to amend tax returns as a matter of right, and there is no provision in the Internal Revenue Code requiring the Commissioner to accept or process amended returns. Badaracco v. Comm’r, 464 U.S. 386, 397 (1984) (Noting no provision of the Internal Revenue Code “requires the filing of [an amended] return.”). Indeed, the IRS announced on May 28, 2020 for the first time in history it now can accept electronically filed amended returns. See IR-2020-107 attached hereto and incorporated herein as Exhibit E.
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filed his tax return as MFJ. Commissioner v. Kowalski, 434 U.S. 77 (1977), a case about tax deductions, is similarly inapplicable. See discussion supra Part II.A.
Section 6428(g)(1) does impinge the fundamental right to marry whom a citizen chooses because it contains restrictions that disproportionately impact a taxpayer who chooses to marry someone who does not have an SSN, spouses who are among a marginalized class. Importantly, MFJ and MFS filing status can have a significant effect on persons who have recently immigrated to the U.S. through marriage to a U.S. citizen or permanent resident. Individuals who are in the U.S. and applying to adjust their status to a permanent resident through their U.S. citizen spouse (and for those arriving to the U.S. as a K-1 fiancé or spouse) must submit evidence proving the existence of a bona fide marriage when filing Form I-485. Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). In Wen Yuan Chan v. Lynch, the Court of Appeals for the First Circuit held that the petitioner “lacked proof” of intention to make a life together, when she only filed jointly with her husband for one of the several years prior to the petition. Wen Yuan Chan v. Lynch, 843 F.3d 539, 546 (2016); see also Agyeman v. INS, 296 F.3d 871, 882–83 (9th Cir.2002) “Evidence of the marriage’s bona fides may include: jointly-filed tax return […]”); Brown v. Napolitano, 391 Fed. Appx. 346, 347 (5th Cir. 2010) (holding United States Citizenship and Immigration Services (“USCIS”) correctly considered taxes in denying immigration status) (unpublished opinion). The regulations expressly provide that joint tax returns are evidence of bona-finde marriage. 8 C.F.R. § 204.2(a)(1)(3)(iii)(B). USCIS has a long history of carefully reviewing tax returns for all relevant years to confirm that they were filed jointly. See Instructions for Form I130, Petition for Alien Relative, and Form I-130 A, Supplemental Information for Spouse Beneficiary at 6-7, Section 5, attached hereto and incorporated herein as Group Exhibit F; Dkt. 20 Exhibit D; see also Dkt. 20 Exhibit B. Filing separate returns (or failure to file) raises the
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presumption that the marriage may not be in good faith, resulting in extensive delay and difficulties in the adjudication of the application, by USCIS, creating instability and hardship. Id.
Many applications for permanent residency (that are submitted by couples married for less than two years at the time they are granted) are granted conditionally for a period of two years. After two years, an alien must file Form I-751, Petition to Remove Conditions on Residence, attached hereto and incorporated herein as Exhibit G. Again, applicants must establish bona fide marriage with their spouse. Submitting jointly filed tax returns is essential evidence to be included with the I-751 petition. 8 USCS § 1186a(b).
Permanent residents who obtained their status through marriage to a U.S. citizen are eligible to apply for naturalization three years after obtaining permanent residency (as opposed to five years). In order to take advantage of this shortened period of eligibility, one must prove that they have been living in marital union with the U.S. citizen spouse for the entire three year period. This proof again entails the filing of joint tax returns in order to meet USCIS requirements. See Application for Naturalization N-400 and N-405 attached hereto and incorporated herein as Group Exhibit H; see also Ayesh v. United States Immigration & Customs Enf't, No. 08 C 542, 2009 U.S. Dist. LEXIS 117092, at *4 (N.D. Ill. Dec. 14, 2009).
The injury to Plaintiff is not just the unfair denial of the Advance Payment, but the harm to the legal immigration process. Defendants’ encouragement of Plaintiff and those similarly situated to file tax returns separately, which can then detrimentally affect lawful immigration pathways for immigrant spouses, is nothing short of an appalling assault on legal immigration and the constitutional rights of U.S. citizens to marry whom they love, regardless of immigration status. See Emergency Motion at 27.
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Section 2101 of the CARES Act, in creating Section 6428 of the Internal Revenue Code, violates the Equal Protection Clause. Defendants argue that eligibility for an Advance Payment is based on whether an individual has an SSN, and not on alienage. See Memo in Opp. at 25. They fail to support this argument with any authority because they cannot. See id; see also CARES Act, § 2101(a) (“[N]o credit shall be allowed under [26 U.S.C. 6428(a)] to an eligible individual who does not include on the return of tax for the taxable year [. . .](B) in the case of a joint return, the valid identification number of such individual’s spouse [.]” where “valid identification number” is defined by the Act and, correspondingly in Section 6428, to mean an SSN). In fact, no individuals who lack an SSN have received an Advance Payment, nor could they. CARES Act, § 2101(a). To receive an Advance Payment, one must personally have a SSN. Id. Despite this fact, Defendants have denied and continue to deny Plaintiff the right to receive an Advance Payment based upon whether his spouse - not Plaintiff - possesses an SSN. Id.
Defendants argue that Section 6428(g) “is a reasonable restriction that assists with the efficient and accurate implementation of the CARES Act.” See Memo in Opp. at 25. Defendants reliance on Lewis is interesting considering it bolsters Plaintiff’s position, as it clarifies the distinction Defendants seem determined to misunderstand: “Responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches.” Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001). “Congress can therefore validly enact laws for aliens that ‘would be unacceptable if applied to citizens.’” Id. (internal citations omitted). The Lewis Court recognized that a “highly deferential” standard is appropriate in matters of immigration. Id. (citing Lake v. Reno, 226 F.3d 141, 148 (2d Cir. 2000)). The instant matter is not an immigration matter unless the Defendants are taking the position that the federal government can enforce its immigration policy by undermining the fundamental rights of
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U.S. Citizens under the Constitution. Plaintiff’s injury is based on whom he chose to marry, and the Constitution entitles him to marry whomever he chooses -- immigrant or not. Denying him the benefit of an Advance Payment on that basis is subject to strict scrutiny.
Defendants cite several cases in support of their arguments that the CARES Act does not contain any alienage classification and if it did, it would be constitutional. McElrath v. Califano is distinguishable as in that case, the Seventh Circuit held that the government had shown the relevant classification to be “neither irrational nor invidious.” McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980) (internal citations omitted). No such showing has been, or can be made, in this case. The classification of SSN-holder married citizens with ITIN-holder spouses creates an invidious classification singling them out as distinct from SSN-holder married citizens with SSN-holder spouses has no rational basis; Defendants cannot seriously argue that SSN holders are not entitled to emergency relief simply because they are married to ITIN holders. See Plyler v. Doe, 457 U.S. 202 (1982) (finding that singling out children because of their illegal immigrant status did not withstand even a rational basis scrutiny of review). Such a conclusion would fly in the face of decades of First Amendment jurisprudence, as articulated above, not to mention the express purpose of the CARES Act: “[T]o provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic.” Plaintiff respectfully urges this Court to note that the title of the Act does not suggest that Congress intended to provide “emergency assistance” to impacted individuals only if they are not married to an ITIN holder. Such a conclusion would be patently absurd.
Defendants’ suggestion that alienage is not implicated here, and that the Act merely discriminates based on a SSN holder’s spouse’s lack of work authorization (see Memo in Opp. at 25-27) similarly fails to hold water. There is no exclusion for U.S. Citizens who have spouses
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who do not work, what possible motive could Congress have had for providing emergency relief only to those U.S. citizens who have spouses who are authorized to work? Defendants offer none. Once again, the hypothetical basis for Exclusion Provision offered by Defendants shocks the conscience and offends our established notions of justice and equality.
The other cases cited by Defendants in support of their argument that the Exclusion Provision does not violate the Constitution are all inapposite to the case at bar: the Advance Payment is not a tax or deduction. See Weinberger v. Salfi, 422 U.S. 749 (1975) (holding that a duration-of-relationship test applicable to a claim for social security benefits was constitutional); Hofstetter v. Commissioner, 98 T.C. 695 (1992) (wherein the Tax Court found that a law preventing taxpayers married to nonresident aliens from filing taxes jointly was constitutional); Barr v. Commissioner, 51 T.C. 693 (1969) (involving a restriction on claiming a non-resident, non-citizen child as a dependent on a parent’s tax return).
While Defendants generally recite the law relating to rational basis review, they fail to cite to any authority supporting the proposition that the challenged provision of CARES Act, as written and as applied, is even rationally related to any legitimate government interest, much less narrowly tailored to advance any compelling government interest. See Memo in Opp. at 25-29.
As with their other points, Defendants’ argument here is circular and seeks to distract this Court’s attention from the threat of immediate harm to Plaintiff and those similarly situated. Advance Payments are, in fact, provided only to citizens, nationals, and noncitizens authorized to work in the United States. I.R.C. § 6428 (“[. . .] The term ‘eligible individual’ means any individual other than . . .(A) any nonresident alien individual[. . .]”). Thus, the rational basis Defendants point to is effectuated by enforcement of the Act itself. It is only by virtue of Section 6428(e)(2) - which provides that “[i]n the case of a refund or credit made or allowed under
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subsection (f) with respect to a joint return, half of such refund or credit shall be treated as having been made or allowed to each individual filing such return” - that nonresident alien individuals are “treated” as having received or been allowed half of their spouses’ credit or a refund under the Act. I.R.C. § 6428(e)(2). The Act itself forces the discriminatory impact inherent in its ostensible purpose creating a legal fiction as if a nonresident alien spouse has received half a partner’s Advanced Payment, while making a nonresident alien ineligible under the Act. In consequence, and in violation of the constitutional guarantees afforded to them, punishes U.S. citizens like Plaintiff for their choice of spouse and denies them any “emergency assistance” under the Act, unless they undermine their spouses’ pathways to lawful immigration status. This argument is both circular and begs the question, could there be any permissible rationale behind the Exclusion Provision?
The facts of the instant case are even more compelling than those at issue in Plyler. Here, Plaintiff and the Putative Class (and in many cases, their children) are already U.S. citizens. It is the alien status of their spouses that, due to the discriminatory purpose and impact of the CARES Act, results in the denial of their constitutional rights. While the constitutional rights of Plaintiff’s spouse, and the spouses of other Class members, are not at issue here, surely the Supreme Court’s reasoning in Plyler can be applied: denying Plaintiff and the Class their right to an Advance Payment based on the immigration status of their spouses offends such “fundamental conceptions of justice” as the Plyler Court’s opinion and our Constitution seek to protect.
The CARES Act does not, as Defendants assert, “permissibly distinguish between individuals with and without SSNs” (see Memo in Opp. at 29) - it impermissibly distinguishes
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between individuals with SSNs who are married to other individuals with SSNs and individuals with SSNs who are married to other individuals without SSNs. CARES Act, § 2101(a).
Defendants cite Brushaber v. Union P. R. Co. and Nat’l Fed’n of Indep. Bus. v. Sebelius for the propositions that a court may not invalidate a law despite Congress’s power to select a different mechanism to achieve the same result, and that a court is not at liberty to evaluate the wisdom of the policy behind a law. See Memo in Opp. at 29 (citing Brushaber v. Union P. R. Co., 240 U.S. 1, 26 (1916); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012)). Brushaber stands for the unsurprising proposition that because the Sixteenth Amendment was duly ratified, collection of tax by the Internal Revenue Service does not amount to a taking in violation of the Fifth Amendment. 240 U.S. 1, 17-18 (1916). The “mechanism” at issue there was – quite literally – the Internal Revenue Service. Id.
The Exclusion Provision of the CARES Act directly violates the First Amendment of the United States Constitution. In Griswold v. Connecticut, the Court 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 (1965). The Exclusion Provision discriminates against Plaintiff on the basis of his protected sanctity of marriage--a fundamental right. As a result of the disparate treatment, Plaintiff is denied an Advance Payment. I.R.C. § 6428(g)(1)(B) also infringes on Plaintiff’s right to enjoy all the benefits of marriage afforded to other married persons. See Dkt. 20 ¶ 66.
Defendants argue that requiring both spouses to provide a SSN on a joint tax return does not impact intimate or expressive association. See Memo in Opp. at 30. However, they fail to acknowledge the fundamental right to marry whomever one chooses. Id. The Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse.
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Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984). The Exclusion Provision does just that. The fundamental right to marriage is the freedom of intimate association and must be secured against undue intrusion by the State. Id at 618. In this respect, freedom of association receives protection as a fundamental element of personal liberty. Id. Accordingly, denying a privilege to Plaintiff based solely on his selection of spouse unduly intrudes on the intimate association of marriage and should be struck down as unconstitutional.
In the alternative, if the Court somehow does not see the Exclusion Provision as infringing on the right to intimate association, it certainly infringes on expressive association. When the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms [intimate association and expressive association] may be implicated. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). Freedom of expressive association may only be overridden if the regulations adopted to serve compelling state interests ”cannot be achieved through means significantly less restrictive of associational freedoms.” Id. at 623. Of course, here least restrictive means could be achieved-mainly providing the U.S. citizen with their advance payment. IV. Plaintiff Will Suffer Irreparable Harm Absent a Preliminary Injunction.
Plaintiff will suffer irreparable harm in the absence of a preliminary injunction in two ways. First, he will be unable to meet his family’s financial obligations for the minimum necessities of life, including the ability to put food on his family’s table, and pay his mortgage, insurance, and health insurance deductibles. See Dkt. 13 at Exhibit A ¶¶ 7-8. Second, the CARES Act has an irreparable harmful effect on the lawful immigration process, because families seeking a path to obtaining lawful citizenship for their spouses are encouraged during the
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desperation of the pandemic to use the filing status of Married Filing Separately and are, as a result, denied the equal treatment, as all other married individuals.
Plaintiffs’ injury is irreparable because “the threatened harm would impair the court’s ability to grant an effective remedy.” EnVerve, Inc. v. Unger Meat Co., 779 F. Supp. 2d 840, 844 (N.D. Ill. 2011). Here the injury is not the failure to receive the Advance Payment, it is the emergency nature of the distribution which would be prevented if this Court does not grant the relief the Plaintiffs seek. Congress expressed the immediacy of the need for the payment stating it should be made “as rapidly as possible.” I.R.C. § 6428(f)(3). Plaintiff has asserted that “[i]f Plaintiff and the Putative Class are denied immediate injunctive relief, their families will continue to struggle to meet their financial obligations for the basic necessities of human life, including but not limited to avoiding starvation for them and their children, homelessness, and other dire consequences affecting their liberty and safety, all of which the CARES Act was designed to address for qualifying Americans as a result of the Pandemic.” See Dkt. No. 1 at Exhibit A and Group Exhibit C. Defendants completely ignore these injuries. Instead, they repeat that if the Plaintiff is eventually successful, he will receive a credit. See Memo in Opp. at 32. However, by that time Plaintiff will have succumbed to dire consequences affecting his liberty and safety, the very consequences the CARES Act was designed to avoid. See Ciechon v. City of Chicago, 634 F.2d 1055, 1058 (7th Cir. 1980); Frerck v. John Wiley & Sons, Inc., 850 F. Supp. 2d 889, 894 (N.D. Ill. 2012).
While “income tax forms” are but one consideration in evaluating whether a marriage is valid for immigration purposes, the failure to file a joint return with your immigrant spouse is a reason often used to deny immigrant spouses citizenship. In Matter of Laureano, 19 I & N. Dec. 1, 1 (B.I.A. Dec. 12, 1983)). See Dkt. No. 13 at Exhibit B ¶ 4(d-f). The intentional carve out of
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the Putative Class in the CARES Act is effectively a bar to a U.S. Citizen’s path to obtaining lawful citizenship for their spouse, as envisioned in the Immigration and Nationality Act. See 66 Stat. 163 at Sec. 319(a).
Accordingly, Plaintiff and the Putative Class will be irreparably harmed if interim relief is not granted.
For all these reasons Plaintiff and the Putative Class have no adequate remedy at law. V. The Equities and Public Interest Favor Granting Injunctive Relief.
As established above, Plaintiff has met the threshold eligibility for an injunction. The balance of the equities and public interest factors tip decidedly in favor of Plaintiff. The harms the Exclusion Provision inflicts are immediate and severe and 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 statuses. Only prompt action by ordering declaratory and injunctive relief will serve the public interest.
Indeed, the right to equal treatment guaranteed by the Constitution is paramount. As the Supreme Court emphatically held in Heckler:
[W]e have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (internal citations omitted). Here, Plaintiff, due to his marriage to a non-US citizen, is being stigmatized and treated as inferior under the CARES Act and an injunction mandating equal treatment would provide him (and the Putative Class) with redress.
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VI. Class Certification Should Be Granted Now. Defendant argues that “[i]t is premature to grant class certification.” See Memo in Opp. at
34. Importantly, Defendants cite no authority for this conclusion, nor do they contemplate Plaintiff’s alternative request for conditional class certification. In fact, this Court recently affirmed that right in Mays v. Dart, holding that Federal Rule of Civil Procedure 23(b)(2) “does not restrict class certification to instances when final injunctive relief issues” and permits certification of a conditional class for the purpose of granting preliminary injunctive relief. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); see also Howe v. Varity Corp, 896 F.2d 1107, 1112 (8th Cir. 1990) (affirming grant of a preliminary injunction to a conditional class). Mays v. Dart, No. 20 C 2134, 2020 U.S. Dist. LEXIS 62326, at *9 (N.D. Ill. Apr. 9, 2020).
Defendant’s arguments are baseless and simply untrue. For example, “no evidence has yet been presented capable of identifying class members” is a blatant misstatement as this Honorable Court itself recognized the identifying factors of the Putative Class in its May 1, 2020 Order, as follows “Given that the CARES Act is fixed at this time (though always subject to amendment by Congress, of course) and that the proposed class is clearly defined in the complaint and opening brief..” See Dkt. 17.
Finally, there is ultimately one single question that is at issue here: does the Exclusion Provision of the CARES Act infringe on the Constitutional Rights of Plaintiff and the Putative Class? Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 445 (7th Cir. 2015). This Court has found the single question rule to satisfy class certification. Id.
Accordingly, Class Certification should be granted, or in the alternative conditional class certification for purposes of the Emergency Motion.
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Dated: May 29, 2020

Respectfully submitted,
JOHN DOE, individually and on behalf of others similarly situated (collectively “Their”).
By: /s/ Lana B. Nassar Lana B. Nassar (IL 6319396) Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com One of Their attorneys
By: /s/ Guinevere Moore Guinevere M. Moore (IL 6297231) Moore Tax Law Group LLC 150 N. Wacker Drive, Suite 1250 Chicago, Illinois 60606 Tel: 312-549-9992 Fax: 312-549-9991 guinevere.moore@mooretaxlawgroup.com One of Their attorneys
By: /s/ Heather L. Blaise Heather L. Blaise (IL 6298241) Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 hblaise@blaisenitschkelaw.com One of Their attorneys
By: /s/ Elisabeth A. Gavin Elisabeth A. Gavin (IL 6297740) Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lisag@blaisenitschkelaw.com One of Their attorneys
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Case: 1:20-cv-02531 Document #: 25 Filed: 05/29/20 Page 42 of 42 PageID #:260 By: /s/ Vivian Khalaf Vivian Khalaf (IL 6210668) Khalaf & Abuzir, LLC 20 N. Clark, Suite 720 Chicago, IL 60602 T: (708)-233-1122 F: (708)-233-1161 vkhalaf@immigrationjd.com One of Their attorneys
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Case: 1:20-cv-02531 Document #: 25-1 Filed: 05/29/20 Page 1 of 3 PageID #:261

Treasury, IRS release latest state-by-state Economic Impact Payment figures
IR-2020-101, May 22, 2020
WASHINGTON –The Treasury Department and the Internal Revenue Service today released updated state-by-state figures for Economic Impact Payments reflecting the opening weeks of the program.
“Economic Impact Payments have continued going out at a rapid rate to Americans across the country,” said IRS Commissioner Chuck Rettig. “We remind people to visit IRS.gov for the latest information, including answers to the most common questions we see surrounding the payments. We also continue to urge those who don’t normally have a filing requirement, including those with little or no income, that they can quickly register for the payments on IRS.gov.”
Millions of people who do not typically file a tax return are eligible to receive these payments. Payments are automatic for people who filed a tax return in 2018 or 2019, receive Social Security retirement, survivor or disability benefits (SSDI), Railroad Retirement benefits, as well as Supplemental Security Income (SSI) and Veterans Affairs beneficiaries who didn’t file a tax return in the last two years.
For those who don’t receive federal benefits and didn’t have a filing obligation in 2018 or 2019, the IRS continues to encourage them to visit the Non-Filer tool at IRS.gov so they can quickly register for Economic Impact Payments. People can continue to receive their payment throughout the year.

State
Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Iowa Idaho

Economic Impact Payments, totals by State.

State postal code
AL AK AZ AR CA CO CT DE DC FL GA HI IA ID

Total Number of EIP Payments
2,332,771 333,429 3,242,043 1,428,624 16,869,636 2,605,089 1,601,397 463,653 308,306 10,618,792 4,763,109 691,424 1,477,214 808,118

Total Amount of EIP Payments
$ 3,988,469,624 $ 580,774,111 $ 5,573,167,261 $ 2,496,524,966 $ 27,897,283,972 $ 4,407,408,401 $ 2,609,644,445 $ 778,262,906 $ 421,734,460 $ 17,546,164,251 $ 8,081,253,826 $ 1,179,264,436 $ 2,660,402,672 $ 1,512,453,150

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EXHIBIT A

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Illinois

IL

Indiana

IN

Kansas

KS

Kentucky

KY

Louisiana

LA

Maine

ME

Maryland

MD

Massachusetts

MA

Michigan

MI

Minnesota

MN

Mississippi

MS

Missouri

MO

Montana

MT

Nebraska

NE

Nevada

NV

New Hampshire

NH

New Jersey

NJ

New Mexico

NM

New York

NY

North Carolina

NC

North Dakota

ND

Ohio

OH

Oklahoma

OK

Oregon

OR

Pennsylvania

PA

Rhode Island

RI

South Carolina

SC

South Dakota

SD

Tennessee

TN

Texas

TX

Utah

UT

Vermont

VT

Virginia

VA

Washington

WA

West Virginia

WV

Wisconsin

WI

Wyoming

WY

Foreign Addresses

5,729,351 3,174,698 1,310,151 2,199,370 2,186,332 714,941 2,692,062 3,136,787 4,813,156 2,613,771 1,427,440 2,933,973 527,902 887,877 1,496,510 676,004 3,955,396 997,072 9,341,632 4,820,974 354,768 5,828,477 1,799,803 2,031,861 6,258,107 536,218 2,443,864 416,962 3,305,606 12,396,590 1,287,162 327,867 3,796,975 3,453,810 913,264 2,817,912 270,626
748,724
page 2

$ 9,630,495,809 $ 5,613,824,661 $ 2,359,448,490 $ 3,824,826,391 $ 3,680,836,165 $ 1,215,239,330 $ 4,380,831,484 $ 5,028,963,151 $ 8,286,614,929 $ 4,577,086,990 $ 2,422,655,854 $ 5,118,911,639 $ 932,003,084 $ 1,611,581,538 $ 2,484,078,422 $ 1,139,776,925 $ 6,507,621,505 $ 1,684,917,178 $ 15,034,060,259 $ 8,264,415,092 $ 632,983,746 $ 9,833,041,489 $ 3,190,860,867 $ 3,425,278,483 $ 10,596,406,088 $ 869,615,684 $ 4,174,979,940 $ 759,483,658 $ 5,693,071,645 $ 21,635,810,592 $ 2,494,199,291 $ 555,841,287 $ 6,447,589,217 $ 5,876,091,642 $ 1,578,210,674 $ 4,948,382,340 $ 488,905,666 $ 1,222,795,510

Case: 1:20-cv-02531 Document #: 25-1 Filed: 05/29/20 Page 3 of 3 PageID #:263
Economic Impact Payment help available on IRS.gov IRS.gov has a variety of tools and resources available to help individuals and businesses navigate Economic Impact Payments and get the information they need about EIP and other CARES Act provisions. Economic Impact Payment FAQs: The IRS is seeing a variety of questions about Economic Impact Payments, ranging from eligibility to timing. These FAQs provide an overview and are updated frequently. Taxpayers should check the FAQs often for the latest additions; many common questions are answered on IRS.gov already, and more are being developed.
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page 3

Case: 1:20-cv-02531 Document #: 25-2 Filed: 05/29/20 Page 1 of 2 PageID #:264
Economic impact payments: What you need to know
Updated with new information for seniors, retirees on April 1, 2020. Also see Treasury news release.
Check IRS.gov for the latest information: No action needed by most people at this time
IR-2020-61, March 30, 2020 WASHINGTON — The Treasury Department and the Internal Revenue Service today announced that distribution of economic impact payments will begin in the next three weeks and will be distributed automatically, with no action required for most people. However, some taxpayers who typically do not file returns will need to submit a simple tax return to receive the economic impact payment.
Who is eligible for the economic impact payment?
Tax filers with adjusted gross income up to $75,000 for individuals and up to $150,000 for married couples filing joint returns will receive the full payment. For filers with income above those amounts, the payment amount is reduced by $5 for each $100 above the $75,000/$150,000 thresholds. Single filers with income exceeding $99,000 and $198,000 for joint filers with no children are not eligible. Social Security recipients and railroad retirees who are otherwise not required to file a tax return are also eligible and will not be required to file a return. Eligible taxpayers who filed tax returns for either 2019 or 2018 will automatically receive an economic impact payment of up to $1,200 for individuals or $2,400 for married couples and up to $500 for each qualifying child.
How will the IRS know where to send my payment?
The vast majority of people do not need to take any action. The IRS will calculate and automatically send the economic impact payment to those eligible. For people who have already filed their 2019 tax returns, the IRS will use this information to calculate the payment amount. For those who have not yet filed their return for 2019, the IRS will use information from their 2018 tax filing to calculate the payment. The economic impact payment will be deposited directly into the same banking account reflected on the return filed.
The IRS does not have my direct deposit information. What can I do?
In the coming weeks, Treasury plans to develop a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately as opposed to checks in the mail.
I am not typically required to file a tax return. Can I still receive my payment?
EXHIBIT B

Case: 1:20-cv-02531 Document #: 25-2 Filed: 05/29/20 Page 2 of 2 PageID #:265
Yes. The IRS will use the information on the Form SSA-1099 or Form RRB-1099 to generate Economic Impact Payments to recipients of benefits reflected in the Form SSA-1099 or Form RRB-1099 who are not required to file a tax return and did not file a return for 2018 or 2019. This includes senior citizens, Social Security recipients and railroad retirees who are not otherwise required to file a tax return. Since the IRS would not have information regarding any dependents for these people, each person would receive $1,200 per person, without the additional amount for any dependents at this time.
I have a tax filing obligation but have not filed my tax return for 2018 or 2019. Can I still receive an economic impact payment?
Yes. The IRS urges anyone with a tax filing obligation who has not yet filed a tax return for 2018 or 2019 to file as soon as they can to receive an economic impact payment. Taxpayers should include direct deposit banking information on the return.
I need to file a tax return. How long are the economic impact payments available?
For those concerned about visiting a tax professional or local community organization in person to get help with a tax return, these economic impact payments will be available throughout the rest of 2020.
Where can I get more information?
The IRS will post all key information on IRS.gov/coronavirus as soon as it becomes available. The IRS has a reduced staff in many of its offices but remains committed to helping eligible individuals receive their payments expeditiously. Check for updated information on IRS.gov/coronavirus rather than calling IRS assistors who are helping process 2019 returns.
Page Last Reviewed or Updated: 16-Apr-2020

Case: 1:20-cv-02531 Document #: 25-3 Filed: 05/29/20 Page 1 of 2 PageID #:266

U.S. Department of the Treasury Office of Public Affairs

Press Release: Contact:

May 18, 2020 Treasury Public Affairs, (202) 622-2960

Treasury is Delivering Millions of Economic Impact Payments by Prepaid Debit Card

WASHINGTON— This week, Treasury and the IRS are starting to send nearly 4 million Economic Impact Payments (EIPs) by prepaid debit card, instead of by paper check. EIP Card recipients can make purchases, get cash from in-network ATMs, and transfer funds to their personal bank account without incurring any fees. They can also check their card balance online, by mobile app, or by phone without incurring fees. The EIP Card can be used online, at ATMs, or at any retail location where Visa is accepted. This free, prepaid card also provides consumer protections available to traditional bank account owners, including protections against fraud, loss, and other errors.

“Treasury and the IRS have been working with unprecedented speed to issue Economic Impact Payments to American families. Prepaid debit cards are secure, easy to use, and allow us to

EXHIBIT C

Case: 1:20-cv-02531 Document #: 25-3 Filed: 05/29/20 Page 2 of 2 PageID #:267
deliver Americans their money quickly,” said Secretary Steven T. Mnuchin. “Recipients can immediately activate and use the cards safely.” Treasury has already delivered more than 140 million Economic Impact Payments worth $239 billion to Americans by direct deposit to accounts at financial institutions, Direct Express card accounts, and by check. The Treasury-sponsored EIP Card is another method to provide money efficiently and securely to eligible recipients and their families. EIP Cards are being distributed to qualified individuals without bank information on file with the IRS, and whose tax return was processed by either the Andover or Austin IRS Service Center. Treasury’s financial agent, MetaBank, will mail EIP Cards to eligible recipients beginning this week. Each mailing will include instructions on how to activate and use the card. The EIP Card is part of Treasury’s U.S. Debit Card program, which provides prepaid debit card services to federal agencies for the electronic delivery of non-benefit payments. MetaBank was selected as Treasury’s financial agent for the U.S. Debit Card program in 2016, following a competitive selection process conducted by the Treasury’s Bureau of the Fiscal Service. To learn more about Economic Impact Payments, click here. To learn more about the Economic Impact Payment Card, click here.
####
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EXHIBIT D

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IRS announces Form 1040-X electronic filing options coming this summer; major milestone reached for electronic returns
IR-2020-107, May 28, 2020
WASHINGTON- The Internal Revenue Service announced today that later this summer taxpayers will for the first time be able to file their Form 1040-X, Amended U.S Individual Income Tax Return, electronically using available tax software products.
Making the 1040-X an electronically filed form has been a goal of the IRS for a number of years. It’s also been an ongoing request from the nation’s tax professional community and has been a continuing recommendation from the Internal Revenue Service Advisory Council (IRSAC) and Electronic Tax Administration Advisory Committee (ETAAC).
Currently, taxpayers must mail a completed Form 1040-X to the IRS for processing. The new electronic option allows the IRS to receive amended returns faster while minimizing errors normally associated with manually completing the form.
“This new process is a major milestone for the IRS, and it follows hard work by people across the agency,” said IRS Commissioner Chuck Rettig. “E-filing has been one of the great success stories of the IRS, and more than 90 percent of taxpayers use it routinely. But the big hurdle that’s been remaining for years is to convert amended returns into this electronic process. Our teams have worked diligently to overcome the unique challenges related to the 1040-X, and we look forward to offering this new service this summer.”
About 3 million Forms 1040-X are filed by taxpayers each year.
The new electronic filing option will provide the IRS with more complete and accurate data in an easily readable format to enable customer service representatives to answer taxpayers’ questions. Taxpayers can still use the "Where's My Amended Return?" online tool to check the status of their electronically-filed 1040-X.
When the electronic filing option becomes available, only tax year 2019 Forms 1040 and 1040-SR returns can be amended electronically. In general, taxpayers will still have the option to submit a paper version of the Form 1040-X and should follow the instructions for preparing and submitting the paper form. Additional enhancements are planned for the future.
“Adding amended returns to the electronic family also complements our partnership with the tax software industry, which continues to work with us to provide better ways to help taxpayers,” said Ken Corbin, Commissioner of the IRS Wage and Investment division.
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page 1

EXHIBIT E

 
 Case: 1:20-cv-02531 Document #: 44 Filed: 07/07/20 Page 1 of 3 PageID #:367

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

JOHN DOE,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, ET AL.,

)

)

Defendants.

)

_______________________________________)

Case No. 1:20-CV-2531

MOTION TO DISMISS CLAIMS AGAINST ALL DEFENDANTS OTHER THAN THE UNITED STATES

Defendant United States of America, named and sued as 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; Steven

Mnuchin, in his individual and official capacity as the 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 (collectively “Defendant” or “Government”), hereby moves to dismiss the

claims against all defendants other than the United States.1

Doe’s lawsuit is simply a challenge to the constitutionality of 26 U.S.C. § 6428(g)(1)(B),

so it must be brought against the United States alone. First, Doe’s “official capacity” allegations

against individual defendants actually are claims against the United States because they would

1 The United States intends to separately seek dismissal of this lawsuit pursuant to Fed. R. Civ. P. 12(b)(1) & (6) once it is properly served under Fed. R. Civ. P. 4(i). Doe has not established a valid waiver of sovereign immunity, he lacks an actual or imminent injury-in-fact, his claims are not ripe, and he fails to state a claim for relief.

1

Case: 1:20-cv-02531 Document #: 44 Filed: 07/07/20 Page 2 of 3 PageID #:368
restrain the Government from acting or compel it to act. And, Doe has sued the United States for the same relief, so his “official capacity” claims are duplicative. Second, all claims against defendants Trump and McConnell should be dismissed. A president enjoys absolute immunity from suit for acts within the “outer perimeter” of his or her official responsibility, which includes signing federal legislation. Also, the Speech or Debate Clause bars civil suits against federal legislators that arise from the sphere of their legitimate legislative activity, such as the introduction and passage of bills. Third, no defendants may be sued in their individual capacities, since the equitable relief that Doe seeks – a finding that 26 U.S.C. § 6428(g)(1) is unconstitutional and an injunction against its enforcement – cannot be obtained from a private individual. Fourth, the IRS and the Department of the Treasury may not be sued in their own names since Congress has not specifically allowed lawsuits of this type against them. Because Doe seeks a declaration that a federal statute is unconstitutional, an injunction compelling the United States to act, and, ultimately, payment of funds from the public treasury, the United States alone is the proper defendant.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General /s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov
2

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CERTIFICATE OF SERVICE
I hereby certify that on July 7, 2020, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all registered parties.
/s/ Jordan A. Konig JORDAN A. KONIG Trial Attorney, Tax Division United States Department of Justice

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 1 of 13 PageID #:370

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

JOHN DOE,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, ET AL.,

)

)

Defendants.

)

_______________________________________)

Case No. 1:20-CV-2531

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CLAIMS AGAINST ALL DEFENDANTS OTHER THAN THE UNITED STATES

Defendant United States of America, named and sued as 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; Steven

Mnuchin, in his individual and official capacity as the Secretary of the U.S. Department of the

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 (collectively “Defendant” or “Government”), submits this memorandum in

support of its motion to dismiss the claims against all defendants other than the United States.

Respectfully submitted,
RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General
/s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 2 of 13 PageID #:371
John Doe1 asks this Court to overturn certain identification number requirements for the refundable tax credit provision contained in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). See 26 U.S.C. § 6428. He seeks extraordinary declaratory and injunctive relief that would judicially rewrite the Act, prevent Congress from passing certain amendments to it or approving similar legislation, and compel Congress to appropriate or escrow funds for individuals who were statutorily excluded from the Act’s refundable tax credit. See Dkt. 20.
Doe purports to sue (1) Donald J. Trump, in his individual and official capacity as President of the United States; (2) Mitch McConnell, in his individual and official capacity as a Senator and sponsor of S. 3548 CARES Act; (3) Steven Mnuchin, in his individual and official capacity as the Secretary of the Department of the Treasury; (4) Charles Rettig, in his individual and official capacity as Commissioner of Internal Revenue; (5) the Department of the Treasury; (6) the Internal Revenue Service; and (7) the United States. See id., ¶¶ 3-11. Doe has filed proofs of service as to all defendants but the United States. See Dkt. 12; 23-34.
This Court should dismiss Doe’s claims against all defendants other than the United States.2 Regardless of how it is pleaded, Doe’s lawsuit is simply a challenge to the constitutionality of 26 U.S.C. § 6428(g)(1)(B), so it must be brought against the United States alone. First, Doe’s “official capacity” allegations against individual defendants actually are claims against the United States because they would restrain the Government from acting or compel it to act. And, Doe has sued the United States for the same relief, so his “official
1 On July 1, 2020, the Court denied Doe’s motion to proceed under a pseudonym. See Dkt. 42. The United States reserves the right to supplement this motion after Doe discloses his identity. 2 The United States intends to separately seek dismissal of this lawsuit pursuant to Fed. R. Civ. P. 12(b)(1) & (6) once it is properly served under Fed. R. Civ. P. 4(i). Doe has not established a valid waiver of sovereign immunity, he lacks an actual or imminent injury-in-fact, his claims are not ripe, and he fails to state a claim for relief.
1

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 3 of 13 PageID #:372
capacity” claims are duplicative. Second, all claims against defendants Trump and McConnell should be dismissed. A president enjoys absolute immunity from suit for acts within the “outer perimeter” of his or her official responsibility, which includes signing federal legislation. Also, the Speech or Debate Clause bars civil suits against federal legislators that arise from the sphere of their legitimate legislative activity, such as the introduction and passage of bills. Third, no defendants may be sued in their individual capacities, since the equitable relief that Doe seeks – a finding that 26 U.S.C. § 6428(g)(1)(B) is unconstitutional and an injunction against its enforcement – cannot be obtained from a private individual. Fourth, the IRS and the Department of the Treasury may not be sued in their own names since Congress has not specifically allowed lawsuits of this type against them. Because Doe seeks a declaration that a federal statute is unconstitutional, an injunction compelling the United States to act, and, ultimately, payment of funds from the public treasury, the United States alone is the proper defendant.
BACKGROUND Doe challenges 26 U.S.C. § 6428(g)(1)(B),3 which denies a CARES Act credit under 26 U.S.C. § 6428(a) to an eligible individual who does not include each spouse’s social security number (“SSN”) on a joint tax return. Doe alleges he is disqualified from receiving a CARES Act credit. Dkt. 20, ¶¶26-27. He contends that: (1) he is a U.S. citizen who has an adjusted gross income of less than $75,000; (2) his children are U.S. citizens; (3) he files joint tax returns with his wife; (4) his wife does not have an SSN4; and (5) neither spouse is a member of the
3 The Second Amended Complaint inadvertently purports to challenge § 6428(h). Dkt. 20 at 16. 4 During oral argument regarding Doe’s motion to proceed under a pseudonym, his counsel stated that Doe’s wife is becoming a United States citizen through the naturalization process. See Dkt. 43. Because Doe may qualify for a CARES Act credit if his wife obtains an SSN before they timely file a joint 2020 return, any injury to him is speculative, his suit is not ripe,
(continued...) 2

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 4 of 13 PageID #:373
military. Id. On behalf of himself and a purported class of similarly situated individuals, Doe claims 26 U.S.C. § 6428(g)(1)(B) violates his First, Fifth, and Fourteenth Amendment rights; specifically, section 6428(g)(1)(B) allegedly violates his “procedural and substantive due process rights,” Dkt. 20, ¶39; deprives him of his “rights, privileges and immunities secured by the Constitution of the United States,” id.; violates his “constitutional property interest rights individually and as a taxpayer,” id., ¶40; and burdens “the right of association, 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,” id., ¶41. He contends he has been denied equal protection “based solely on whom he chose to marry.” Id.
As a remedy for these alleged injuries, Doe requests an order certifying a class; an injunction prohibiting the United States from enforcing the CARES Act as it was enacted and requiring the Court to re-write the law; and an order compelling the government to escrow or otherwise appropriate funds sufficient to issue advance refunds of the CARES Act credit to Doe and the putative class. Id. at 15-17. He also seeks various declaratory relief, including a declaratory judgment that section 6428(g)(1)(B) is unconstitutional. Id. Although Doe’s underlying objective seems to be payment of an advance refund of the CARES Act credit, he does not expressly request money damages or an advance refund in his demand for relief.
and he is not a proper representative for the purported class. Doe is qualified for the CARES Act credit if he chooses the status “married filing separately” for his 2020 income tax return, and would qualify even filing jointly if his wife becomes a citizen by the end of 2020.
3

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 5 of 13 PageID #:374
ARGUMENT I. Doe’s “Official Capacity” Claims Should be Dismissed as Duplicative of his Claims
Against the United States. Doe purports to sue Donald J. Trump, Mitch McConnell, Steven Mnuchin, and Charles Rettig in their official capacities in this action to invalidate a provision of a federal tax statute. Such a suit against a federal official in his or her official capacity is properly construed as a lawsuit against the United States itself. See Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)); see also Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent”). The Supreme Court has explained that “a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotation marks omitted) (quoting Land v. Dollar, 330 U.S. 731, 738 (1947) & Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949)); see also Schlafly v. Volpe, 495 F.2d 273, 278-79 (7th Cir. 1974). Here, Doe seeks to restrain the United States from acting or to compel its action – he asks the Court to enjoin the enactment of 26 U.S.C. § 6428(g)(1)(B) and demands the escrow or appropriation of funds from the public treasury for those who are statutorily-barred from receiving the CARES Act credit. Any “official capacity” claims therefore are properly brought against the United States. Even if an official capacity suit was permitted, the individual defendants may still be dismissed because Doe already named the United States as a defendant. “Because adding the official-capacity claim in the present situation makes no practical difference, there is no reason to
4

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 6 of 13 PageID #:375
retain the Individual Defendants as parties to this action.” Davis v. Village of Hazel Crest, 2018 WL 835224, at *3 (N.D. Ill. Feb. 13, 2018) (citations and internal alterations omitted); see, e.g., Myers v. City of Chicago, 2011 WL 43063, at *5 (N.D. Ill. Jan. 6, 2011) (dismissing official capacity claims against officers as duplicative of claims against city); Weathers v. Illinois State Police, 2006 WL 1594044, at *5 (N.D. Ill. June 6, 2006) (observing that official capacity claims against officers would be duplicative of claims against police). Accordingly, Doe’s official capacity claims should be dismissed as duplicative of his claims against the United States.
II. The President and Senate Majority Leader Are Immune From This Suit. Defendants Donald J. Trump and Mitch McConnell are absolutely immune from this
lawsuit, and all claims against them must be dismissed. All of the allegations against these defendants stem from their constitutional duties as federal officeholders. See Dkt. 20, ¶3 (defendant Trump “signed into law the S. 3548-Coronavirus Aid, Relief, and Economic Security Act”); ¶4 (defendant McConnell “is the Sponsor of the S. 3548-CARES Act, introduced in the Senate on March 19, 2020”).
The Supreme Court has explained that the special nature of a president’s constitutional office and functions requires that he or she be absolutely immune from suits alleging liability for acts within the “outer perimeter” of official responsibility. Nixon v. Fitzgerald, 457 U.S. 731, 755-56 (1982). Here, all of Doe’s allegations against the President stem from acts conducted in performance of specific functions of his office – namely, signing the CARES Act after it passed both houses of Congress.5 Doe alleges that a discrete provision of the CARES Act is
5 Doe also seems to fault the President for including his signature on “Stimulus Checks.” Dkt. 20, ¶21. That conduct is at least within the “outer perimeter” of duties of the executive branch, and thus sufficient for immunity to apply. In any case, it is not clear how an allegedly improper signature on a check that Doe did not receive caused him any actionable harm.
5

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 7 of 13 PageID #:376
unconstitutional – not that the signing of the bill was ultra vires or that the President here engaged in any conduct under color of federal law that was outside his constitutional duties. Therefore, the claims against defendant Trump should be dismissed.
All claims against defendant McConnell also must be dismissed. The Supreme Court has made clear that United States senators are absolutely immune from suit when performing acts that are legislative in nature. Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982); Gravel v. United States, 408 U.S. 606, 625 (1972). The Speech or Debate Clause of the Constitution, art. I, sec. 6, cl. 1, broadly bars civil suits against federal legislators that arise from “the sphere of legitimate legislative activity.” Rose v. Hastert, 2004 WL 783065, at *1-*2 (N.D. Ill. Jan. 22, 2004) (quoting Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 506 (1975)). Here, all of Doe’s allegations against defendant McConnell arise from his role as a United States senator and his conduct in the passage of a federal statute. Accordingly, defendant McConnell is completely immune from suit, and all claims against him must be dismissed.6
III. No Defendants May Be Sued in Their Individual Capacities. Doe also purports to sue defendants Trump, McConnell, Mnuchin, and Rettig in their
individual capacities. Dkt. 20, ¶¶3-6, 10-11. Initially, Doe does not set forth any cause of action
6 Even if Senator McConnell was not immune from suit, all claims against him still must be dismissed. Doe cannot establish standing, since any alleged injury is not “fairly traceable” to McConnell’s conduct and could not be redressed by an injunction issued against McConnell. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Rangel v. Boehner, 2013 WL 6487502, at *5 (D.D.C. Dec. 11, 2013). Moreover, personal jurisdiction is lacking since Senator McConnell represents Kentucky and does not have the requisite minimum contacts with Illinois. See Liberation News Serv. v. Eastland, 426 F.2d 1379, 1384-85 (2d Cir. 1970). McConnell is entitled to qualified immunity, and a Bivens remedy is not available. See infra. Finally, there is no recognized theory under which a Member of Congress may be held liable simply because a litigant objects to his or her legislative conduct. See, e.g., Phillips v. U.S. Equal Employment Opportunity Comm’n, 2016 WL 8719050, at *10 (N.D. Ind. Sept. 9, 2016); Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992); Richards v. Harper, 864 F.3d 85, 88 (9th Cir. 1988).
6

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under which he may sue any defendants in their personal capacities. At most, he recites boilerplate language that seems to allege that the individual defendants violated his constitutional rights under color of federal law or are vicariously liable for the unconstitutional conduct of others, pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Dkt. 20, ¶¶11, 41, 46 (citing 42 U.S.C. § 1983). However, the equitable relief that Doe seeks cannot be obtained from federal officeholders in their individual capacities. Accordingly, all “individual capacity” claims should be dismissed.
While a Bivens action, alleging the violation of constitutional rights under color of federal law, may be maintained against a federal officer in his or her individual capacity, see F.D.I.C. v. Meyer, 510 U.S. 471, 484-85 (1994), the allegations in Doe’s complaint relate solely to the conduct of the individual defendants in their roles as federal officeholders. Dkt. 20, ¶¶3-6, 1011, 16-17. Indeed, Doe contends that the CARES Act – not these officials as private citizens – unlawfully “denies tax-paying U.S. citizens their rights, privileges, benefits and/or protections[.]” Id., ¶15. Such allegations plainly challenge the individual defendants’ actions only in their official capacities. None of the allegations are sufficient to allege personal liability on the part of defendants Trump, McConnell, Mnuchin, or Rettig. See, e.g., Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991); Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989). Moreover, the equitable relief requested in this lawsuit cannot be obtained through an action against federal officeholders in their individual capacities. See Hill, 924 F.2d at 1373-74; Feit, 886 F.2d at 857-58. Since Doe seeks an injunction compelling the Government to act, his only cause of action would be against the sovereign, not an individual. Feit, 886 F.2d at 857-58; Dertz v. City of Chicago, 912 F. Supp. 319, 327-28 (N.D. Ill. 1995).
7

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In any case, a Bivens remedy is not available. A Bivens claim is a limited, implied cause of action for money damages against a federal employee only in his or her personal capacity. Bivens, 403 U.S. at 497. The basis of the implied cause of action recognized in Bivens was that other forms of relief, such as an injunction, were unavailable – for Bivens, it was “damages or nothing.” Bivens, 403 U.S. at 410 (Harlan, J., concurring). Here, however, Doe purports to sue the individual defendants in both personal and official capacities and seeks only injunctive relief. See Dkt. 20, ¶¶3-6, 70-77.
Permitting Bivens claims against the individual defendants also would require an unwarranted extension of Bivens. The Supreme Court disfavors implying causes of action for alleged violations of the Constitution and has consistently refused to extend Bivens to new contexts and categories of defendants. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). In particular, the Supreme Court will not recognize a Bivens remedy where Congress created an alternative process for protecting the interest asserted by a litigant. Id. at 1858. Here, the exclusive, comprehensive scheme created to resolve tax-related disputes, which includes a cause of action under 26 U.S.C. § 7422, precludes a Bivens claim. See Haas v. Schalow, 172 F.3d 53 (table), 1998 WL 904727, at *3 (7th Cir. 1998); see also Cameron v. IRS, 773 F.2d 126, 129 (7th Cir. 1985). Doe’s constitutional challenge may be raised in an administrative claim to the IRS and, if unsuccessful, a tax refund suit. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 5-8 (2008). Accordingly, the Court lacks jurisdiction to consider a claim under Bivens, and no defendants may be named in their individual capacities.
IV. There is No Waiver of Sovereign Immunity Permitting Suit Against the Department of the Treasury or Internal Revenue Service in This Action. Doe’s claims against the Department of the Treasury and the Internal Revenue Service
also must be dismissed. It is well-settled that the United States and its departments and agencies 8

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may not be sued without its consent. See Larson, 337 U.S. at 688-89; Blackmar v. Guerre, 342 U.S. 512, 514 (1952); Exch. Nat’l Bank v. Daniel Hale Williams Univ., 473 F. Supp. 656, 657 (N.D. Ill. 1979). That is, a federal agency may not be sued in its own name without an explicit statutory waiver. See Blackmar, 342 U.S. at 515.
Courts routinely have found that neither the IRS nor the Department of the Treasury is an authorized suable entity. See id.; see also, e.g., Castleberry v. Alcohol, Tobacco & Firearms Div. of Treas. Dep’t of U.S., 530 F.2d 672, 673 n.3 (5th Cir. 1976); Howell v. Dep’t of the Treas., 2020 WL 2065843, at *1 n.2 (D. Utah Mar. 6, 2020) (Report and Recommendation). Where taxpayers are authorized to sue on matters arising out of IRS actions, the United States alone is the proper party defendant. See 26 U.S.C. § 7422(f) (suit arising out of dispute over tax liabilities may only be maintained against the United States); 26 U.S.C. §§ 7430(a), 7431(a)(1), 7432(a), 7433(a) (suits for damages arising out of specified IRS actions may be maintained against the United States).
Of course, the Administrative Procedure Act (“APA”) permits certain regulatory challenges to be filed against the IRS and Department of the Treasury. Through the APA, Congress has waived sovereign immunity to permit judicial review for an individual allegedly suffering an injury because of final agency action, or adversely affected or aggrieved by final agency action. See 5 U.S.C. § 702. The APA explicitly permits suits against “the United States, the agency by its official title, or the appropriate officer.” 5 U.S.C. § 703; see also W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1195 (9th Cir. 2008).
Doe disclaims any attempt to raise a cause of action under the APA.7 See Dkt. 25 at 9-
7 Doe’s attempt to rely on the sovereign immunity waiver of the APA without asserting a cause of action under the APA or any other federal statute authorizing review of agency action is
(continued...) 9

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 11 of 13 PageID #:380
11. Even if Doe’s lawsuit was construed as an APA challenge, it still must be dismissed. Review of agency action under the APA is permitted only where “there is no other adequate remedy in a court[.]” 5 U.S.C. § 704. Thus, determining whether jurisdiction exists under the APA requires an inquiry into whether other provisions allow a cause of action to remedy the plaintiff’s alleged injury. See U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016) (“an agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court”).
Here, the existence of a carefully articulated scheme for judicial review under 26 U.S.C. § 7422 precludes jurisdiction under the APA. Congress specifically waived sovereign immunity under 28 U.S.C. § 1346(a)(1) and authorized a cause of action for a taxpayer to challenge the denial of a tax credit under section 7422. And Doe here plainly seeks to challenge the denial of the CARES Act credit, which is a refundable tax credit. This Court thus has long recognized “a clear congressional intent to preclude judicial review of taxpayer challenges under the APA.” Hall v. United States, 1983 WL 1583, at *3 (N.D. Ill. Feb. 24, 1983); see also Petit v. I.R.S., 1983 WL 1612, at *1 (N.D. Ill. May 12, 1983). Because Doe has an adequate remedy to challenge the constitutionality of the CARES Act credit, his claims do not fall within the APA’s immunity waiver. See Clintwood, 553 U.S. at 8-12; Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.”). Accordingly, the IRS and Department of the Treasury are not proper defendants, and all claims against them should be dismissed.
meritless. Doe’s failure to identify a valid sovereign immunity waiver justifies dismissal of his lawsuit against the United States. See Blagojevich v. Gates, 519 F.3d 370, 372 (7th Cir. 2008).
10

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CONCLUSION Doe’s challenge to the constitutionality of 26 U.S.C. § 6428(g)(1)(B) requests equitable relief for which the United States alone is the proper defendant. All claims against defendants Trump, McConnell, Mnuchin, Rettig, Department of the Treasury, and IRS therefore should be dismissed.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General /s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov
11

Case: 1:20-cv-02531 Document #: 45 Filed: 07/07/20 Page 13 of 13 PageID #:382 Certificate of Service
I certify that on July 7, 2020, a copy of the foregoing United States’ Memorandum in Support of Motion to Dismiss was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s system.
/s/ Jordan A. Konig Jordan A. Konig Trial Attorney U.S. Department of Justice, Tax Division
12

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

JOHN DOE,

)

)

Plaintiff,

)

)

v.

)

)

DONALD J. TRUMP, ET AL.,

)

)

Defendants.

)

_______________________________________)

Case No. 1:20-CV-2531 Honorable Sharon Johnson Coleman

MOTION TO DISMISS CLAIMS AGAINST THE UNITED STATES

Defendant United States of America1 hereby moves to dismiss Plaintiff John Doe’s

lawsuit

First, the Court may not consider Doe’s claims, since there is no waiver of sovereign

immunity conferring jurisdiction over this action and Doe does not allege an actual or imminent

injury-in-fact that is ripe for adjudication. The CARES Act did not create a justiciable right to an

advance refund of the tax credit in 26 U.S.C. § 6428 – the benefit it created was a tax credit for

tax year 2020, not immediate access to government funds. Indeed, Doe’s eligibility for the tax

credit cannot be determined until the 2020 tax year ends. Second, Doe fails to state a claim that

1 The United States was improperly named and sued as 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; Steven Mnuchin, in his individual and official capacity as the 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. All defendants other than the United States have filed a motion to dismiss the claims against them. See Dkt. 44. If that motion is denied, all defendants join in this motion to dismiss.
1

the CARES Act provision violates the right to marriage, creates an unlawful classification based on alienage, or impermissibly burdens his First Amendment rights. Section 6428(g) does not implicate, let alone violate, any of these rights. Further, Doe’s allegations do not establish that the SSN requirement is without rational basis.
Respectfully submitted, RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General /s/ Jordan A. Konig JORDAN A. KONIG CHRISTOPHER J. WILLIAMSON Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 305-7917 / Fax: (202) 514-5238 Jordan.A.Konig@usdoj.gov
2

CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2020, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all registered parties.
/s/ Jordan A. Konig JORDAN A. KONIG Trial Attorney, Tax Division United States Department of Justice

 
 Case: 1:20-cv-02531 Document #: 70 Filed: 12/14/20 Page 1 of 5 PageID #:841

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JOHN DOE, Plaintiff,
v. DONALD J. TRUMP, et al.,
Defendants.

)

)

)

Case No. 20-cv-2531

)

)

Judge Sharon Johnson Coleman

)

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff John Doe brings this putative class action lawsuit challenging the constitutionality

of the exclusion provision of the Coronavirus Aid, Relief, and Economic Security Act (“CARES

Act”), specifically 26 U.S.C. § 6428(g)(1), seeking declaratory and injunctive relief against the United

States, the Internal Revenue Service (“IRS”), the United States Department of the Treasury

(“Treasury”), President Donald Trump, Senate Majority Leader Mitch McConnell, Treasury

Secretary Steven Mnuchin, and IRS Commissioner Charles Rettig. Before the Court is defendant

United States’ Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all named defendants

other than the United States from this lawsuit. Based on the following, the Court grants in part and

denies in part the United States’ motion and dismisses the individual defendants from this lawsuit.

Background

In response to the COVID-19 pandemic, Congress passed the CARES Act, which the

President signed into law on March 27, 2020. The CARES Act provides “Advance Credits” of up to

$1,200 for eligible individuals and $500 for each eligible individual’s qualifying children under the age

of 17. See 26 U.S.C. § 6428(a). The Act requires each Advance Credit recipient to have a Social

Security number (“SSN”), thus excluding undocumented immigrants without a work authorization

who file taxes with an Individual Taxpayer Identification Number (“ITIN”). See 26 U.S.C. §

Case: 1:20-cv-02531 Document #: 70 Filed: 12/14/20 Page 2 of 5 PageID #:842
6428(g); 20 C.F.R. § 422.104(a). As a result, United States citizens, who would otherwise qualify for the Advance Credit, cannot receive the Advance Credit if they filed a joint tax return with a noncitizen spouse who lacks an SSN. See 26 U.S.C. § 6428(g)(1)(B). In short, § 6428(g)(1)(B), called the exclusion provision, excludes eligible individuals from receiving cash assistance if his or her spouse is an undocumented immigrant. Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible when the plaintiff alleges “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Discussion
The United States first asserts that the official capacity claims against the individual defendants are duplicative of the claims against the United States. The Court agrees. It is wellsettled that official capacity claims are just “another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In other words, “[a]ctions against individual defendants in their official capacities are treated as suits brought against the government entity itself.” Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008). Accordingly, the official capacity claims against Donald J. Trump, Mitch McConnell, Steven
2

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Mnuchin, and Charles Rettig are duplicative, especially in light of Doe’s allegations that the individual defendants are liable for their role in implementing the CARES Act, not that the individual defendants themselves violated the law or acted in excess of their authority. The Court therefore grants this aspect of the United States’ motion.
In addition, both the President and the Senate Majority Leader are absolutely immune from this lawsuit because the allegations against them stem from their constitutional and official duties as federal office holders. See Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (“judicial, prosecutorial, and legislative functions require absolute immunity”); Nixon v. Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility.”).
Although Doe agrees that Senator McConnell is immune from suit, he argues that the President’s conduct concerned “unofficial acts” because the President affixed his name to CARES Act checks. See Clinton v. Jones, 520 U.S. 681, 694, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (“[W]e have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”). Doe’s argument is unsupported by legal authority except for a treasury directive that does not indicate whether the President can or cannot sign checks drawn from Treasury. Without more, Doe has waived this argument because it is undeveloped and lacks sufficient legal authority. Harrington v. Duszak, 971 F.3d 739, 741 (7th Cir. 2020).
Doe further argues that he can bring his constitutional claims against the individual defendants by extending the holding in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, “an individual injured by a federal agent’s alleged
3

Case: 1:20-cv-02531 Document #: 70 Filed: 12/14/20 Page 4 of 5 PageID #:844
violation of the Fourth Amendment may bring an action for damages against the agent.” F.D.I.C. v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In FDIC v. Meyer, the Supreme Court declined to extend Bivens to lawsuits seeking money damages from federal agencies. Id. at 486. Doe does not address FDIC v. Meyer in his legal memorandum nor does he distinguish the fact that he did not allege the individual defendants were acting outside the scope of their official duties. In the end, the Supreme Court has repeatedly refused to extend Bivens, see Ziglar v. Abbasi, ––– U.S. –––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017), and Doe has failed to make a sufficient argument for the Court to do so.
Next, the United States argues that Doe’s official capacity claims against the Department of the Treasury and the Internal Revenue Service are untenable because federal agencies cannot be sued in their own name absent waiver of sovereign immunity, see F.D.I.C. v. Meyer, 510 U.S. at 475, and, it takes unequivocal language in a statute to waive sovereign immunity. Bormes v. United States, 759 F.3d 793, 796 (7th Cir. 2014). Doe does not point to unequivocal language in which either Treasury or the IRS waived their sovereign immunity under the circumstances, namely, a constitutional challenge to the CARES Act. Instead, he argues that the Administrative Procedure Act (“APA”) provides immunity to bring this lawsuit against Treasury and the IRS even though Doe is not seeking review of a final agency action. The Court agrees.
“The APA provides a limited waiver of the United States’ sovereign immunity and supports a claim for a challenge to agency action, but only to the extent that the plaintiffs ‘seek relief other than money damages.’” Cook County, Ill. v. Wolf, 962 F.3d 208, 233 (7th Cir. 2020) (quoting 5 U.S.C. § 702). Because Doe is seeking injunctive relief, his argument is not barred by § 702. In addition, despite the United States’ argument to the contrary, “the waiver in § 702 is not limited to claims brought pursuant to the review provisions contained in the APA itself,” but also “applies when any federal statute authorizes review of agency action, as well as in cases involving constitutional
4

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challenges and other claims arising under federal law.” Michigan v. U.S. Army Corps of Engineers, 667

F.3d 765, 775 (7th Cir. 2011). Therefore, the IRS and the Department of Treasury remain

defendants to this lawsuit.

Conclusion

Based on the foregoing, the Court grants in part and denies in part the United States’ motion

to dismiss [44]. The Court dismisses the individual defendants from this lawsuit. The remaining

defendants include the United States, the Internal Revenue Service, and the U.S. Department of

Treasury.

IT IS SO ORDERED.

Date: 12/14/2020

Entered: _____________________________ SHARON JOHNSON COLEMAN United States District Judge

5

 
 Case: 1:20-cv-02531 Document #: 71 Filed: 01/19/21 Page 1 of 4 PageID #:846

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN DOE,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA, ET AL., )

)

Defendants.

)

_______________________________________)

Case No. 1:20-CV-2531 Judge Sharon Johnson Coleman

UNOPPOSED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Pursuant to Federal Rule of Civil Procedure 12(b)(1), Plaintiff John Doe moves the Court

to dismiss this action for lack of subject matter jurisdiction, and submits as follows:

On December 27, 2020, Defendant Donald J. Trump signed into law the Consolidated

Appropriations Act, 2021. Subtitle B of title II of division N of that legislation, which is

captioned the “COVID-related Tax Relief Act of 2020,” among other things, amends certain

provisions of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act),

including the provision codified at I.R.C. § 6428(g), the so-called Exclusion Provision, which

would have denied any CARES Act tax credit on a joint return unless both spouses on that return

possessed and set forth on the return valid Social Security Numbers (SSNs) for each.

Specifically, section 273(a)(3) of the COVID-related Tax Relief Act of 2020 replaces I.R.C.

§ 6428(g)(1)(B), which would have denied a CARES Act tax credit to either spouse on a joint

return unless both had valid SSNs, with a new provision that, “[i]n the case of a joint return,”

allows a CARES Act tax credit of up to “$1,200 if the valid identification number of only 1

spouse is included on the return of tax for the taxable year, and zero if the valid identification

number of neither spouse is so included.” Similarly, section 273(a)(3) of the COVID-related Tax

Case: 1:20-cv-02531 Document #: 71 Filed: 01/19/21 Page 2 of 4 PageID #:847
Relief Act of 2020 also replaces I.R.C. § 6428(g)(1)(C), which would have denied a CARES Act tax credit to any otherwise qualifying child on a joint return unless both spouses on that return had valid SSNs, with a new provision that, “in the case of a joint return,” allows a CARES Act tax credit of up to $500, provided “the valid identification number of at least 1 spouse” on the return is included on it.
Further, section 273(b) of the COVID-related Tax Relief Act of 2020 provides that “[t]he amendments made by this section shall take effect as if included in section 2201 of the CARES Act.” In sum, section 273(a)(3) of the COVID-related Tax Relief Act of 2020 retroactively repeals and replaces the Exclusion Provision with one that provides substantially the same relief that Plaintiff John Doe sought in this action for himself and others similarly situated.1
Accordingly, this “case is moot” because “the issues presented are no longer live,” and “the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quotation and punctuation omitted). In particular, the enactment of section 273(a)(3) of the COVID-related Tax Relief Act of 2020 leaves “no reasonable expectation that the alleged violation will recur.” Id. (quotation, punctuation, and alteration omitted). And the retroactive effect of that provision has “completely and irrevocably eradicated the effects of the alleged violation.” Id. (quotation and punctuation omitted).
Because Plaintiff’s action no longer represents a “case or controversy,” within the meaning of Article III, section 2 of the Constitution, the Court does not retain subject matter jurisdiction over it. See, e.g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972) (stating that a federal court’s “lack of jurisdiction to review moot cases derives from the
1 While the changes to I.R.C. § 6428(g) made by section 273(a)(3) of the COVID-related Tax Relief Act of 2020 apply for purposes of determining eligibility for a CARES Act tax credit under I.R.C. § 6428(a), they do not affect the eligibility for an advance refund of that credit under I.R.C. § 6428(f). Resultantly, Plaintiff John Doe and others similarly situated will not receive any payment unless and until they file their 2020 tax returns, and even then, only to the extent that the CARES Act tax credit exceeds their tax liability for the year.
2

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requirement of Article III of the Constitution under which the exercise of judicial power depends

upon the existence of a case or controversy” (quotation and punctuation omitted)).

Plaintiff therefore moves that the Court dismiss the action for lack of subject matter

jurisdiction.

Dated: January 19, 2021

Respectfully submitted,

JOHN DOE, individually and on behalf of others similarly situated (collectively “Their”)

By: /s/ Lana B. Nassar Lana B. Nassar Blaise & Nitschke, P.C. 123 N. Wacker Drive, Suite 250 Chicago, Illinois 60606 T: (312) 448-6602 F: (312) 803-1940 lnassar@blaisenitschkelaw.com One of Their attorneys

By: /s/ Guinevere Moore Guinevere Moore Moore Tax Law Group LLC 150 N. Clark, Suite 1250 Chicago, IL 60606 T: (312) 549-9990 F: (312) 549-9991 Guinevere.moore@mooretaxlawgroup.com One of Their attorneys

3

Case: 1:20-cv-02531 Document #: 71 Filed: 01/19/21 Page 4 of 4 PageID #:849

CERTIFICATE OF SERVICE
The undersigned certifies that on the 19th day of January, 2021, she caused the foregoing instrument to be electronically filed with the Clerk of the United States District Court for the Northern District of Illinois 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 lnassar@blaisenitschkelaw.com ARDC No. 6319396

/s/ Lana B. Nassar Lana B. Nassar

4