1/18/2021

District of Maryland (CM/ECF Live 6.3.3)
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:20-cv-01102-ELH

Create an Alert for This Case on RECAP

Amador et al v. Mnuchin et al Assigned to: Judge Ellen L. Hollander Related Case: 8:20-cv-01148-PWG Cause: 28:1331 Violation of Constitutional Rights
Plaintiff
Ivania Amador

Date Filed: 04/28/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Robert P. Newman Law Ofﬁce of Robert P. Newman, PC 801 Wayne Avenue Suite 400 Silver Spring, MD 20910 301-892-2713 Fax: 301-883-1533 Email: rnewman@rpnewmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno Mexican American Legal Defense and Educational Fund 1016 16th St. NW #110 Washington, DC 20036 2022932828 Fax: 2022932849 Email: asenteno@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores Mexican American Legal Defense and Education Fund (MALDEF) 634 S. Spring St. 11th Fl. Los Angeles, CA 90014 2136292512 Fax: 2136290266 Email: AHolguin-Flores@MALDEF.org PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer Mexican American Legal Defense and Education Fund (MALDEF) 634 S. Spring St. 11th Fl. Los Angeles, CA 90014 2136292512 Fax: 2136230266
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District of Maryland (CM/ECF Live 6.3.3)
Email: bescobosa@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez Mexican American Legal Defense and Education Fund (MALDEF) 110 Broadway #300 San Antonio, TX 78205 2102245476 Fax: 2102245382 Email: fmenendez@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales Mexican American Legal Defense and Educational Fund 110 Broadway Ste. 300 San Antonio, TX 78205 2102245476 Fax: 2102245382 Email: nperales@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Christina Segundo-Hernandez

Samantha T Serna Mexican American Legal Defense and Education Fund (MALDEF) 110 Broadway #300 San Antonio, TX 78205 2102245476 Fax: 2102245382 Email: sserna@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer
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District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Angel Burgos Jimenez

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Juana Rueda

District of Maryland (CM/ECF Live 6.3.3)
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jonah Elijah Macias

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer
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District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Bradley Harmon

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Erica Vaca

District of Maryland (CM/ECF Live 6.3.3)
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Kelly Hernandez

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer
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District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Billy Croan

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Mary Ramirez

District of Maryland (CM/ECF Live 6.3.3)
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Yanet Jove-Aguilar

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer
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District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Kristen Cendajes

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Kevin Sanchez

District of Maryland (CM/ECF Live 6.3.3)
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff William Ramos

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Belinda Escobosa Helzer
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District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Harlon Wilson

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Zachary Shanks

District of Maryland (CM/ECF Live 6.3.3)
represented by Robert P. Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea E Senteno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andres Holguin Flores (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Belinda Escobosa Helzer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Fatima Menendez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nina Perales (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samantha T Serna (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Steven Mnuchin sued in his ofﬁcial capacity as U.S. Secretary of the Treasury
https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

represented by Christopher James Williamson United States Department of Justice Tax Division Ben Franklin Station PO Box 227 Washington, DC 20044 2023072250 Fax: 2025146866 Email: christopher.j.williamson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan A Konig U.S. Department of Justice PO Box 55
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Defendant Charles Rettig sued in his ofﬁcial capacity as U.S. Commissioner of Internal Revenue
Defendant U.S. Department of the Treasury
Defendant U.S. Internal Revenue Service

District of Maryland (CM/ECF Live 6.3.3)
Washington, DC 20044 2023057917 Fax: 2025145238 Email: jordan.a.konig@usdoj.gov ATTORNEY TO BE NOTICED
Nishant Kumar US Department of Justice PO Box 227 Ben Franklin Station Washington, DC 20044 2025142986 Fax: 2025146866 Email: nishant.kumar@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher James Williamson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan A Konig (See above for address) ATTORNEY TO BE NOTICED
Nishant Kumar (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher James Williamson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan A Konig (See above for address) ATTORNEY TO BE NOTICED
Nishant Kumar (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher James Williamson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan A Konig (See above for address) ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

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Amicus Federation for American Immigration Reform

District of Maryland (CM/ECF Live 6.3.3)
Nishant Kumar (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Meriwether Hethmon Immigration Reform Law Institute 25 Massachusetts Ave NW Ste 335 Washington, DC 20001 12022325590 Fax: 12024643590 Email: mhethmon@irli.org ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/28/2020

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 04168631053.), ﬁled by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. (Attachments: # 1 Civil Cover Sheet Cover Sheeet, # 2 Summons Summons - Mnuchin, # 3 Summons Summons - Rettig, # 4 Summons Summons - Treasury, # 5 Summons Summons - IRS) (Newman, Robert) (Entered: 04/28/2020)

04/29/2020

Case Reassigned to Judge Ellen L. Hollander. Judge Theodore D. Chuang no longer assigned to the case. (kns, Deputy Clerk) (Entered: 04/29/2020)

04/29/2020

2 QC NOTICE: 1 Complaint, ﬁled by Jonah Elijah Macias, Angel Burgos Jimenez, Ivania Amador, Bradley Harmon, Juana Rueda, Christina Segundo-Hernandez was ﬁled incorrectly. **The following attachments or exhibits are missing - Summons. Summons were provided for only the named Defendants. If the defendant is either an agency of the United States or an ofﬁcer or employee of the United States, you must serve both the U.S. Attorney General and the U.S. Attorney for the District of Maryland, as well as each defendant. Please electronically submit a summons for each required party, using the Civil event "Supplemental" located under "Other Filings", and then "Other Documents". (dg3s, Deputy Clerk) (Entered: 04/29/2020)

04/29/2020

3 Summons Issued 60 days as to Steven Mnuchin, Charles P. Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service(dg3s, Deputy Clerk) (Entered: 04/29/2020)

04/29/2020

4 Supplemental to Case Assigned/Reassigned, 1 Complaint, ﬁled by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez (Attachments: # 1 Summons Summons - AG Barr, # 2 Summons Summons - MD SA Hur, # 3 Civil Cover Sheet Cover Sheet)(Newman, Robert) (Entered: 04/29/2020)

04/30/2020

5 Summons Issued 60 days as to U.S. Attorney and U.S. Attorney General.(bmhs, Deputy Clerk) (Entered: 04/30/2020)

05/04/2020

6 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. Steven Mnuchin served on 5/1/2020, answer due 5/22/2020.(Newman, Robert) (Entered: 05/04/2020)

05/04/2020

7 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. Charles P.

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

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05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/05/2020
05/05/2020 05/05/2020 05/05/2020 05/11/2020 05/11/2020 05/11/2020 05/11/2020

District of Maryland (CM/ECF Live 6.3.3)
Rettig served on 5/1/2020, answer due 5/22/2020.(Newman, Robert) (Entered: 05/04/2020)
8 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. U.S. Internal Revenue Service served on 5/1/2020, answer due 6/30/2020.(Newman, Robert) (Entered: 05/04/2020)
9 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. U.S. Department of the Treasury served on 5/1/2020, answer due 6/30/2020.(Newman, Robert) (Entered: 05/04/2020)
10 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. All Defendants.(Newman, Robert) (Entered: 05/04/2020)
11 SUMMONS Returned Executed by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. All Defendants.(Newman, Robert) Modiﬁed on 5/5/2020 (bmhs, Deputy Clerk). Modiﬁed on 5/5/2020 (bmhs, Deputy Clerk). (Entered: 05/04/2020)
12 (FILED IN ERROR) QC NOTICE: 11 Summons Returned Executed as to USA ﬁled by Jonah Elijah Macias, Angel Burgos Jimenez, Ivania Amador, Bradley Harmon, Juana Rueda, Christina Segundo-Hernandez was ﬁled incorrectly. **Incorrect event was selected. Please reﬁle the return for the U.S. Attorney using the event under Service of Process - Summons Returned Executed as to USA. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) Modiﬁed on 5/5/2020 (bmhs, Deputy Clerk). (Entered: 05/05/2020)
13 NOTICE of Appearance by Christopher James Williamson on behalf of All Defendants (Williamson, Christopher) (Entered: 05/05/2020)
14 SUMMONS Returned Executed by Ivania Amador. Robert K. Hur served on 5/1/2020, answer due 6/30/2020.Associated Cases: 1:20-cv-01102-ELH, 8:20-cv-01148PWG(Newman, Robert) (Entered: 05/05/2020)
15 SUMMONS Returned Executed by Ivania Amador. William P. Barr served on 5/1/2020, answer due 6/30/2020.Associated Cases: 1:20-cv-01102-ELH, 8:20-cv-01148PWG(Newman, Robert) (Entered: 05/05/2020)
16 ORDER scheduling a telephone conference to discuss the appropriate schedule in this case. Signed by Judge Ellen L. Hollander on 5/11/2020. (bmhs, Deputy Clerk) (Entered: 05/11/2020)
17 NOTICE of Appearance by Jordan A Konig on behalf of Steven Mnuchin, Charles P. Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service (Konig, Jordan) (Entered: 05/11/2020)
18 MOTION to Appear Pro Hac Vice for Nina Perales (Filing fee $100, receipt number 0416-8646719.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)
19 MOTION to Appear Pro Hac Vice for Belinda Escobosa Helzer (Filing fee $100, receipt number 0416-8646737.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

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05/11/2020

District of Maryland (CM/ECF Live 6.3.3)
20 MOTION to Appear Pro Hac Vice for Andres Holguin-Flores (Filing fee $100, receipt number 0416-8646745.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)

05/11/2020

21 MOTION to Appear Pro Hac Vice for Andrea E. Senteno (Filing fee $100, receipt number 0416-8646763.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)

05/11/2020

22 MOTION to Appear Pro Hac Vice for Samantha T. Serna (Filing fee $100, receipt number 0416-8646768.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)

05/11/2020

23 MOTION to Appear Pro Hac Vice for Fatima Menendez (Filing fee $100, receipt number 0416-8646773.) by Ivania Amador, Angel Burgos Jimenez, Bradley Harmon, Jonah Elijah Macias, Juana Rueda, Christina Segundo-Hernandez(Newman, Robert) (Entered: 05/11/2020)

05/12/2020

24 PAPERLESS ORDER granting 18 Motion to Appear Pro Hac Vice on behalf of Nina Perales. Directing attorney Nina Perales to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-ﬁling-password-reset. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/12/2020

25 PAPERLESS ORDER granting 19 Motion to Appear Pro Hac Vice on behalf of Belinda Escobosa Helzer. Directing attorney Belinda Escobosa Helzer to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/12/2020

26 PAPERLESS ORDER granting 20 Motion to Appear Pro Hac Vice on behalf of Andres Holguin-Flores. Directing attorney Andres Holguin-Flores to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/12/2020

27 PAPERLESS ORDER granting 21 Motion to Appear Pro Hac Vice on behalf of Andrea E Senteno. Directing attorney Andrea E Senteno to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/12/2020

28 PAPERLESS ORDER granting 22 Motion to Appear Pro Hac Vice on behalf of Samantha T Serna. Directing attorney Samantha T Serna to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/12/2020

29 PAPERLESS ORDER granting 23 Motion to Appear Pro Hac Vice on behalf of Fatima Menendez. Directing attorney Fatima Menendez to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/12/2020. (srds, Deputy Clerk) (Entered: 05/12/2020)

05/15/2020

Telephone Status Conference held on 5/15/2020 before Judge Ellen L. Hollander. (bmhs, Deputy Clerk) (Entered: 05/15/2020)

05/15/2020 30 ORDER conﬁrming the substance of discussions during the telephone conference held on 5/15/20. Signed by Judge Ellen L. Hollander on 5/15/2020. (bmhs, Deputy Clerk) (Entered: 05/15/2020)

05/19/2020 31 AMENDED COMPLAINT against Steven Mnuchin, Charles P. Rettig, U.S.

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?987359453693213-L_1_0-1

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District of Maryland (CM/ECF Live 6.3.3)
Department of the Treasury, U.S. Internal Revenue Service, ﬁled by Bradley Harmon, Christina Segundo-Hernandez, Juana Rueda, Jonah Elijah Macias, Ivania Amador, Angel Burgos Jimenez. (Attachments: # 1 Exhibit Legal Blackline of Amended Complaint)(Perales, Nina) Modiﬁed on 5/20/2020 (bmhs, Deputy Clerk). (Entered: 05/19/2020)

05/29/2020

32 Substantive legal issues - addressing (Williamson, Christopher) (Entered: 05/29/2020)

06/02/2020

33 NOTICE of Appearance by Michael Meriwether Hethmon on behalf of Federation for American Immigration Reform (Hethmon, Michael) (Entered: 06/02/2020)

06/02/2020

34 MOTION for Leave to File Amicus Curiae Brief by Federation for American Immigration Reform (Attachments: # 1 Exhibit Proposed Amicus Letter Brief) (Hethmon, Michael) (Entered: 06/02/2020)

06/03/2020

35 Supplemental to 34 MOTION for Leave to File Amicus Curiae Brief ﬁled by Federation for American Immigration Reform (Exhibit 2 Proposed Order) (Hethmon, Michael) (Entered: 06/03/2020)

06/05/2020 36 RESPONSE re 32 Substantive legal issues - addressing ﬁled by Ivania Amador, Angel Burgos Jimenez, Kristen Cendajes, Billy Croan, Bradley Harmon, Kelly Hernandez, Yanet Jove-Aguilar, Jonah Elijah Macias, Mary Ramirez, William Ramos, Juana Rueda, Kevin Sanchez, Christina Segundo-Hernandez, Zachary Shanks, Erica Vaca, Harlon Wilson.(Perales, Nina) (Entered: 06/05/2020)

06/08/2020 37 ORDER granting 34 Motion for Leave to File Amicus Curiae Letter Brief in Support of Defendants and Dismissal of Amended Complaint. Signed by Judge Ellen L. Hollander. (bmhs, Deputy Clerk) (Entered: 06/08/2020)

06/08/2020

38 Amicus Curiae Letter Brief in Support of Defendants and Dismissal of Amended Complaint by Federation for American Immigration Reform. (bmhs, Deputy Clerk) (Entered: 06/08/2020)

06/09/2020

39 NOTICE of Appearance by Nishant Kumar on behalf of All Defendants (Kumar, Nishant) (Entered: 06/09/2020)

06/10/2020

40 NOTICE by Steven Mnuchin, Charles Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service re: amicus brief by Federation for American Immigration Reform (Kumar, Nishant) (Entered: 06/10/2020)

06/12/2020

41 Substantive legal issues - addressing (Williamson, Christopher) (Entered: 06/12/2020)

07/23/2020

42 RESPONSE re 38 Notice (Other) ﬁled by Ivania Amador, Angel Burgos Jimenez, Kristen Cendajes, Billy Croan, Bradley Harmon, Kelly Hernandez, Yanet Jove-Aguilar, Jonah Elijah Macias, Mary Ramirez, William Ramos, Juana Rueda, Kevin Sanchez, Christina Segundo-Hernandez, Zachary Shanks, Erica Vaca, Harlon Wilson.(Perales, Nina) (Entered: 07/23/2020)

08/05/2020 43 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/5/2020. (bmhs, Deputy Clerk) (Entered: 08/06/2020)

08/05/2020

44 Order denying 32 Defendants' Motion to Dismiss. Signed by Judge Ellen L. Hollander on 8/5/2020. (bmhs, Deputy Clerk) (Entered: 08/06/2020)

08/20/2020

45 ANSWER to 31 Amended Complaint, by Steven Mnuchin, Charles Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service.(Williamson, Christopher) (Entered: 08/20/2020)

08/31/2020

46 ORDER setting a conference call to discuss the appropriate schedule in the case. Signed by Judge Ellen L. Hollander on 8/31/2020. (bmhs, Deputy Clerk) (Entered: 09/01/2020)

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1/18/2021
09/14/2020 09/16/2020 09/17/2020 10/01/2020 10/01/2020 11/23/2020
11/24/2020 12/23/2020
12/23/2020

District of Maryland (CM/ECF Live 6.3.3)
47 REPORT of Rule 26(f) Planning Meeting(Perales, Nina) (Entered: 09/14/2020)
Telephone Status Conference held on 9/16/2020 before Judge Ellen L. Hollander. (bmhs, Deputy Clerk) (Entered: 09/17/2020)
48 SCHEDULING ORDER. Signed by Judge Ellen L. Hollander on 9/17/2020. (bmhs, Deputy Clerk) (Entered: 09/17/2020)
49 MEMORANDUM to Counsel. Signed by Judge Ellen L. Hollander on 10/1/2020. (bmhs, Deputy Clerk) (Entered: 10/01/2020)
50 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/5/2020. (bmhs, Deputy Clerk) (Entered: 10/01/2020)
51 Joint MOTION to Amend/Correct 48 Scheduling Order by Steven Mnuchin, Charles Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service (Attachments: # 1 Text of Proposed Order)(Williamson, Christopher) (Entered: 11/23/2020)
52 AMENDED SCHEDULE. Signed by Judge Ellen L. Hollander on 11/23/2020. (hmls, Deputy Clerk) (Entered: 11/24/2020)
53 Joint MOTION to Amend/Correct 52 Order on Motion to Amend/Correct the Scheduling Order by Steven Mnuchin, Charles Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service (Attachments: # 1 Text of Proposed Order)(Williamson, Christopher) (Entered: 12/23/2020)
54 ORDER re: Amended Schedule. Signed by Judge Ellen L. Hollander on 12/23/2020. (bmhs, Deputy Clerk) (Entered: 12/23/2020)

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 Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION

IVANIA AMADOR, CHRISTINA

*

SEGUNDO-HERNANDEZ,

*

ANGEL BURGOS JIMENEZ,

*

JUANA RUEDA, JONAH ELIJAH

*

MACIAS, and BRADLEY HARMON, *

*

Plaintiffs,

*

*

v.

*

*

STEVEN MNUCHIN, sued in his official *

capacity as U.S. Secretary of the Treasury; *

CHARLES RETTIG, sued in his official *

capacity as U.S. Commissioner of Internal *

Revenue; U.S. DEPARTMENT OF THE *

TREASURY; and the U.S. INTERNAL *

REVENUE SERVICE,

*

*

Defendants.

*

Civil Action No.

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
1. In response to the severe health and economic crisis caused by the COVID-19 pandemic, the U.S. Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). One critical provision of the CARES Act creates recovery payments for individuals in order to provide direct economic assistance to workers and families. 26 U.S.C. §6428 (a). Although the recovery payments are intended to protect the American people from the public health and economic impacts of COVID-19, the CARES Act excludes married couples where one spouse lacks a social security number. 26 U.S.C. § 6428 (g)(1)(B). These married couples receive no recovery payments.

Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 2 of 19
2. Plaintiffs are individuals who possess social security numbers and whose spouses lack social security numbers. Pursuant to 26 U.S.C. § 6428 (g)(1)(B), Plaintiffs receive no recovery payments under 26 U.S.C. § 6428 (a) even though they and their children are U.S. citizens.
3. Plaintiffs seek a declaration that 26 U.S.C. § 6428 (g)(1)(B) is unconstitutional. Plaintiffs further seek class-wide relief enjoining enforcement of 26 U.S.C. § 6428 (g)(1)(B) and further requiring Defendants to treat Plaintiffs, and those similarly-situated, the same as other married individuals. PARTIES
Plaintiffs 4. Plaintiff IVANIA AMADOR is a United States citizen who lives with her husband and
three U.S. citizen children in Frederick, Maryland. Plaintiff AMADOR has been married to her husband for 6 years. Plaintiff AMADOR has a social security number and her husband does not have a social security number. 5. Plaintiff CHRISTINA SEGUNDO-HERNANDEZ is a United States citizen who lives with her husband and their four U.S. citizen children in Fort Worth, Texas. Plaintiff SEGUNDO-HERNANDEZ has been married to her husband for 5 years. Plaintiff SEGUNDO-HERNANDEZ has a social security number and her husband does not have a social security number. 6. Plaintiff ANGEL BURGOS JIMENEZ is a United States citizen who lives with her husband and five U.S. citizen children in Bristol, Virginia. Plaintiff BURGOS JIMENEZ has been married to her husband for 4 years. Plaintiff JIMENEZ has a social security number and her husband does not have a social security number.
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7. Plaintiff JUANA RUEDA is a United States citizen who lives with her husband and three children in Columbus, Ohio. Plaintiff RUEDA and her husband have been married for 3 years. Plaintiff RUEDA has a social security number and her husband does not have a social security number.
8. Plaintiff JONAH ELIJAH MACIAS is a United States citizen who lives with his wife and one U.S. citizen child in Granger, Washington. Plaintiff MACIAS has been married to his wife for 2 years. Plaintiff MACIAS has a social security number and his wife does not have a social security number.
9. Plaintiff BRADLEY HARMON is a United States citizen who lives with his wife and four U.S. citizen children in Roy, Utah. Plaintiff HARMON has been married to his wife for 6 years. Plaintiff HARMON has a social security number and his wife does not have a social security number.
Defendants 10. Defendant STEVEN T. MNUCHIN is the Secretary of the U.S. Department of the
Treasury. In that capacity, among other things he oversees the collection of revenue, the preparation of plans for the improvement and management of the revenue and the preparation and report of estimates of the public revenue and public expenditures. As Secretary, Defendant Mnuchin exercises full authority to administer and enforce the internal revenue laws and has the power to create an agency to enforce these laws. As part of his duties, Defendant Mnuchin oversees the issuance of recovery payments to eligible individuals under the CARES Act. He is sued in his official capacity. At all times relevant herein, Defendant Mnuchin acted in an official capacity and under color of legal authority.
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 4 of 19
11. Defendant CHARLES RETTIG is the United States Commissioner of Internal Revenue. In that capacity, Defendant Rettig administers the application of the internal revenue laws and tax conventions to which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig reports to the Secretary of the Treasury Defendant Mnuchin. As part of his duties, Defendant Rettig oversees the issuance of recovery payments to eligible individuals under the CARES Act. He is sued in his official capacity. At all times relevant herein, Defendant Rettig acted in an official capacity and under color of legal authority.
12. 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.
13. 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. JURISDICTION AND VENUE
14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1343 over Plaintiffs’ causes of action under the United States Constitution. This Court may grant Plaintiffs’ request for declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 5 of 19
15. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1), because: 1) a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District, and 2) Plaintiff Ivania Amador resides in Frederick, Maryland within this District and no real property is involved in this action.
16. The United States has waived sovereign immunity for this action for declaratory and injunctive relief against its agencies, and the agencies’ officers are sued in their official capacities. 5 U.S.C. § 702. FACTUAL ALLEGATIONS
A. COVID-19 and the CARES Act 17. In March, 2020, the United States saw a drastic increase in the number of its residents who
became sick and died from COVID-19. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. On March 13, 2020, President Donald J. Trump declared COVID-19 a national emergency. 18. According to the U.S. Department of Labor, the national unemployment rate jumped to 4.4% in March 2020, up from 3.5% in February. This was the largest month-to-month increase since January 1975.1 The increase in unemployment was driven by COVID-19 and the shelter-in-place orders implemented to combat the coronavirus. According to the Department of Labor, employment in leisure and hospitality fell by 459,000, mainly in food services and drinking places, and declines also occurred in health care and social assistance, professional and business services, retail trade, and construction.
1 U.S. Department of Labor, Bureau of Labor Statistics, “THE EMPLOYMENT SITUATION — MARCH 2020,” available at https://www.bls.gov/news.release/pdf/empsit.pdf (last visited April 27, 2019).
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 6 of 19
19. To provide families and workers assistance during this once-in-a-lifetime economic and health crisis, Congress enacted H.R. 748, the CARES Act. The Senate passed the CARES Act with a vote of 96 to 0 on March 25, 2020 and on March 27, 2020, the House of Representatives passed the CARES Act by voice vote. On March 27, 2020, the President signed the CARES Act into law (Public Law Number 116-136).
20. At the signing of the CARES Act, President Donald J. Trump stated: “This is a very important day. I’ll sign the single-biggest economic relief package in American history[.] And this will deliver urgently needed relief to our nation’s families, workers, and businesses.”2
21. Section 2201 of the CARES Act amends Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986, by adding a new section 6428. Section 6428 is codified at 26 U.S.C. 6428.
22. Section 6428 (a) provides economic stimulus payments (“recovery payments”) 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.
23. Section 6428, through a combination of provisions, excludes otherwise qualified individuals from receiving the CARES Act recovery payments solely because their spouses lack social security numbers.
2 The White House, “Remarks by President Trump at Signing of H.R.748, The CARES Act,” available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-h-r-748-cares-act/ (last visited April 27, 2020).
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 7 of 19
24. Under Section 6428 (d), Plaintiffs are defined as “eligible individual[s]” because they are neither “nonresident alien individual[s]” nor dependent children.
25. Plaintiffs’ children are also defined as “qualifying” for the recovery payments under section Section 6428 (a)(2) because the children are under the age of 17 and live in the U.S. 26 U.S.C 24 (c).
26. However, Section 6428 (g)(1)(B) also requires an eligible individual’s spouse to have provided a “valid identification number” on the most recent tax return filed jointly with the IRS.
27. Section 6428 (g)(2) defines a “valid identification number” for an adult as a social security number.
28. Sections 6428 (g)(1)(B) and (g)(2) operate together to require both spouses to have social security numbers in order for any member of the family, including qualifying children, to be included in the recovery payment.
29. Plaintiffs’ spouses possess Individual Taxpayer Identification Numbers (ITIN) issued to them by Defendant U.S. Internal Revenue Service.
30. An ITIN is not a social security number and is not a “valid identification number” for the purpose of providing a recovery payment under Section 6428 (a) of the CARES Act.
31. On their most recent tax returns, Plaintiffs provided their social security numbers, which is required by Section 6428 (g)(1)(A) in order for an eligible individual to receive a recovery payment. Plaintiffs also provided their children’s social security numbers, which is required by Section 6428 (g)(1)(C) in order for payments for qualifying children to be included in the recovery payments. Plaintiffs also provided the ITINs of their spouses on the tax returns.
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 8 of 19
32. However, as a result of Section 6428 (g)(1)(B), although Plaintiffs and their children are U.S. citizens, and Plaintiffs would otherwise have received recovery payments under Section 6428 (a) of the CARES Act, Plaintiffs did not receive recovery payments because their spouses lack social security numbers.
33. But for their spouses lacking social security numbers, Plaintiffs would have received recovery payments for themselves and their children under the CARES Act, 26 U.S.C. §6428 (a).
34. There is no mechanism by which Plaintiffs can dispute their exclusion from recovery payments.
35. During the House of Representatives debate on the CARES Act, Representative TJ Cox pointed out what he called “this bill’s glaring shortcomings” which included the fact that the bill “punishes mixed-status households and denies some American citizens benefits they deserve.”3
36. The original Senate version of the CARES Act, S. 3548, required all married joint filers to include social security numbers for both spouses. However, the Senate created an exception for cases in which “at least 1 spouse was a member of the Armed Forces of the United States at any time during the taxable year and at least 1 spouse [has a social security number].” Section 6428 (g)(3). The exception for military mixed-status couples appeared in the Senate’s final version of the CARES Act, H.R. 748, and was enacted into law.
37. None of the Plaintiffs or their spouses was a member of the Armed Forces of the United States at any time during the taxable year.
3 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020) (statement of Rep. Cox of Cal.) 8

Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 9 of 19
38. Section 6428 (g)(3) of the CARES Act demonstrates that Congress was aware that the
recovery payments would be generally unavailable to qualified individuals who are married
to and jointly file their taxes with non-citizens who lack a social security number.
39. In the weeks following passage of the CARES Act, the U.S. economy continued to contract
because of the COVID-19 pandemic. Across the U.S., states shut down schools and businesses and ordered residents to stay at home to slow the spread of the coronavirus.4
On April 23, 2020, the U.S. Department of Labor reported that the advance seasonally adjusted insured unemployment rate was 11% for the week ending April 11.5 The number
of initial jobless claims totaled 4.2 million in the week ending April 18. 40. The U.S. is now the country with the highest number of reported COVID-19 cases.6
B. Background on Individual Taxpayer Identification Numbers
41. An ITIN is a unique tax processing number that the U.S. Internal Revenue Service issues
to individuals who do not have and are not eligible for a social security number. I.R.C. §
6109; Treas. Reg. § 301.6109-1(a)(1)(ii)(B). Individuals use the ITIN to fulfill their legal
obligation to file federal tax returns when their lack of formal immigration status prevents
them from obtaining a social security number. An ITIN does not confer any immigration status or provide work authorization or eligibility for social services programs.7
4 The New York Times, “See Which States Are Reopening and Which Are Still Shut Down,” April 27, 2020, available at https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html (last visited April 28, 2020). 5 U.S. Department of Labor, “News Release, Unemployment Insurance Weekly Claims,” April 23, 2020, available at https://www.dol.gov/ui/data.pdf (last visited April 27, 2020). 6 The New York Times, “Coronavirus Map: Tracking the Global Outbreak,” April 27, 2020, available at https://www.nytimes.com/interactive/2020/world/coronavirusmaps.html?action=click&pgtype=Article&state=default&module=stylncoronavirus&variant=show&region=TOP_BANNER&context=storyline_menu (last visited April 28, 2020). 7 Internal Revenue Serv., “Instructions for Form W-7” (Sept. 2019), available at https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 27, 2020).
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42. Federal law generally requires all wage earners to file tax returns and use an identification
number. I.R.C. § 1. Individuals apply for ITIN by submitting a W-7 form and a completed
tax return to the IRS. I.R.C. § 6109. The W-7 form requires applicants to prove their
identity and foreign status with any of 13 acceptable documents by the IRS, such as a passport or a birth certificate.8
43. 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.9 The IRS estimates ITIN tax filers pay over $9 billion in annual payroll taxes.10
C. Mixed-Status Families
44. The Migration Policy Institute, a nonpartisan organization, estimates that close to two
million U.S. citizens or lawful permanent residents are married to undocumented immigrants.11 Four million children in the U.S. share a home with at least one parent who is unauthorized.12
45. Families that contain a non-U.S. citizen spouse are particularly vulnerable to the economic
dislocation associated with the COVID-19 pandemic.
8 Internal Revenue Serv., “Instructions for Form W-7” (Sept. 2019), available at https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 27, 2020). 9 Institute on Taxation and Economic Policy, “How the Tax Rebate in the Senate’s Bill Compares to Other Proposals,” (March 25, 2020), available at https://itep.org/how-the-tax-rebate-in-the-senates-billcompares-to-other-proposals/ (last visited April 27, 2020). 10 Internal Revenue Serv., “IRS Nationwide Tax Forum: Immigration and Taxation” (2014), available at https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20Taxation.pdf (last visited April 27, 2020). 11 Migration Policy Institute, “Profile of the Unauthorized Population: United States,” available at https://www.migrationpolicy.org/data/unauthorized-immigrantpopulation/state/US#marital (last visited April 27, 2020). 12 Migration Policy Institute, “A Profile of U.S. Children with Unauthorized Immigrant Parents,” available at https://www.migrationpolicy.org/research/profile-us-children-unauthorized-immigrantparents (last visited April 27, 2020).
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46. Accommodation and food services, health care and social assistance, administrative and waste services, and retail trade are the industries that experienced the biggest job layoffs in March 2020, according to the latest employment data.13 Non-U.S. citizen immigrants make up a strong proportion of the workers in these industries.14
47. Foreign-born workers earn less than native-born workers. 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.15 In addition, non-U.S. citizen immigrants are significantly more likely than citizens to lack health insurance.16
48. Plaintiffs are U.S. citizens who possess social security numbers and whose spouses, with whom they live and raise children, do not possess social security numbers.
49. Plaintiffs pay taxes and file their tax returns jointly with their spouses just like other married individuals. Filing tax returns jointly with their taxes is part of married life for Plaintiffs. Plaintiffs jointly filed their tax returns to express their family union to the government and society. Plaintiffs’ desire to jointly file their taxes is an expression of their marriages and the unity of their families, in addition to securing the benefits available to spouses who file jointly.
50. It is important to Plaintiffs' fundamental right to self-determination to express to whom they are married. That expression is sacred to them. Expressing that they are married and
13 U.S. Bureau of Labor Statistics, “Current Employment Statistics,” April 3, 2020, available at https://www.bls.gov/web/empsit/ceseeb1a.htm (last visited April 27, 2020) 14 U.S. Bureau of Labor Statistics, “Foreign-Born Workers: Labor Force Characteristics -- 2018,” May 16, 2019, available at https://www.bls.gov/news.release/pdf/forbrn.pdf (last visited April 27, 2020) 15 Id. 16 Kaiser Family Foundation, “Health Coverage of Immigrants,” March 18, 2020, available at https://www.kff.org/disparities-policy/fact-sheet/health-coverage-of-immigrants/ (last visited April 27, 2020).
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expressing to whom they are married dignifies the Plaintiffs’ wish to define themselves by their commitment to their spouses. 51. Plaintiffs jointly file tax returns to give recognition to their marriage and families, and to allow their children to understand the integrity and closeness of their families and their concord with other families in their communities. 52. The CARES Act’s and Defendants’ failure to provide Plaintiffs recovery payments disparages Plaintiffs’ choices and diminishes their personhood. By denying Plaintiffs and other mixed-status couples recovery payments, the CARES Act and Defendants force Plaintiffs and their children to suffer the stigma of knowing their families are adversely treated compared to other families. The CARES Act and Defendants humiliate Plaintiffs and the children of mixed-status couples by treating them adversely as compared to other families.
CLASS ACTION ALLEGATIONS 53. Plaintiffs bring this action on their own behalf and all other persons similarly situated,
pursuant to Federal Rule of Civil Procedure 23. 54. Plaintiffs bring this action individually and on behalf of a class defined as: All persons
who are otherwise qualified for and would have received recovery payments but for the fact that they are excluded by 26 U.S.C. § 6428 (g)(1)(B) because their spouses lack social security numbers. 55. Plaintiffs reserve the right to amend the Class and any potential subclass definitions if further investigation and discovery indicate that the Class and potential subclass definitions should be narrowed, expanded, or otherwise modified. Excluded from the Class and
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potential subclass are any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. 56. Members of the putative Class are so numerous that joinder is impracticable. Upon information and belief, there are over one million individuals against whom Defendants discriminate pursuant to 26 U.S.C. § 6428 (g)(1)(B). Plaintiffs do not know the precise number of Class members, as this information is in Defendants’ possession. 57. The putative class shares common questions of fact and law. These include the common facts related to individuals who have a social security number and are married to spouses who lack a social security number, and the common questions: (1) whether 26 U.S.C. § 6428 (g)(1)(B) violates the U.S. Constitution by discriminating against individuals with social security numbers who are married to individuals who lack social security numbers; (2) whether Plaintiffs and the Class suffered harm as a result of 26 U.S.C. § 6428 (g)(1)(B)’s and Defendants’ unlawful policy and/or practice; (3) what equitable and injunctive relief for the Class is warranted; and (5) the scope of a resulting permanent injunction. 58. The claims alleged by the named individual Plaintiffs are typical of the claims of the putative Class because the challenged statutory provision applies with the same force to the named individual Plaintiffs as they do to all other members of the Class. 59. The named individual Plaintiffs will fairly and adequately protect the interest of the Class because there are no conflicts of interest between any class members and the named individual Plaintiffs possess a strong personal interest in the subject matter of this lawsuit and the claims raised. Plaintiffs are represented by counsel with expertise in class action litigation, complex federal litigation and litigation involving constitutional law. Counsel
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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 14 of 19
has the legal knowledge and resources to represent fairly and adequately the interests of all class members in this action. 60. The universe of people affected by the CARES Act’s and Defendants’ unlawful policy and/or practice is ascertainable through Defendants’ records and, therefore, the Class is ascertainable. 61. This class action may be maintained under Federal Rule of Civil Procedure 23(b) because prosecuting separate actions by individual Class members would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for Defendants. Defendants also have acted or failed to act on grounds that generally apply to all Class members, necessitating the declaratory and injunctive relief Plaintiffs seek. In addition, questions of law and fact common to Class members predominate over questions affecting only individual Class members. A class action is superior to other available methods for fairly and efficiently adjudicating the controversy because, among other things, a class action would concentrate a multiplicity of individual actions, which share common facts and legal disputes, in a single forum.
CAUSES OF ACTION FIRST CAUSE OF ACTION Fifth Amendment to the U.S. Constitution (Substantive Due Process) 62. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 63. The Fifth Amendment to the U.S. Constitution protects freedom of personal choice in matters of marriage and family life.
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64. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiffs from receiving recovery payments, based only on to whom they are married “slic[es] deeply into the family itself.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 498 (1977). On its face, and as applied, 26 U.S.C. § 6428 (g)(1)(B) selects certain categories of married individuals who may receive recovery payments and declares that others may not. In particular, 26 U.S.C. § 6428 (g)(1)(B) denies recovery payments to Plaintiffs based on their choice to marry individuals who lack a social security number.
65. 26 U.S.C. § 6428 (g)(1)(B)’s threatens Plaintiffs' freedom of choice in personal matters related to marriage and family, including the sanctity of Plaintiffs' interest in defining their families though personal choice.
66. 26 U.S.C. § 6428 (g)(1)(B) intentionally and substantially infringes upon and unduly burdens Plaintiffs’ liberty interests, as well as other interests that form the basis of Plaintiffs' fundamental right to marry and to choose how to define their families.
67. Plaintiffs’ choice of whom to marry is fundamental to their autonomy, dignity, and selfdetermination. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiffs from receiving recovery payments unduly interferes with Plaintiffs’ fundamental rights and liberty interests, is arbitrary, unfair, and unreasonable, and lacks an adequate justification.
68. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the Fifth Amendment’s Due Process Clause. SECOND CAUSE OF ACTION First Amendment to the U.S. Constitution (Freedom of Expression)
69. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
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70. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
71. Plaintiffs are members of mixed-status married couples who engage in protected First Amendment activity when Plaintiffs express their lawful marriage and commitment to their spouses who lack social security numbers through means including filing their joint federal tax returns.
72. 26 U.S.C. § 6428 (g)(1)(B) violates Plaintiffs’ right to freedom of speech and association guaranteed by the First Amendment by denying them recovery payments because they express their lawful marriage and commitment to, and association with, their spouses in their 2018 or 2019 jointly-filed federal tax returns.
73. Defendants rely on Plaintiffs’ speech and association in their 2018 or 2019 tax returns to deny Plaintiffs recovery payments.
74. There is no substantial governmental interest, rational basis, or compelling governmental interest in burdening Plaintiffs’ speech by denying Plaintiffs recovery payments because they exercise their First Amendment rights through means including filing joint tax returns with their spouses who lack social security numbers.
75. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the First Amendment. THIRD CAUSE OF ACTION Fifth Amendment to the U.S. Constitution (Equal Protection Clause)
76. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
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77. The Fifth Amendment to the United States Constitution guarantees all persons equal treatment under the law. The right to marry is secured by the Equal Protection Clause.
78. 26 U.S.C. § 6428 (g)(1)(B), on its face and as applied to Plaintiffs, violates the equal protection guarantee of the Fifth Amendment by burdening Plaintiffs’ fundamental right to marry in a way that is incompatible with requirements of equality. Marriage has long been regarded as a fundamental right, the foundation of the family, and of society. It embraces the right to personal choice, individual autonomy, and dignifies couples who define themselves by their commitment to each other.
79. As a direct result of 26 U.S.C. § 6428 (g)(1)(B), the federal government treats Plaintiffs, who are legally married, differently than other married couples simply because their spouses lack social security numbers. As a result of the disparate treatment, Plaintiffs are excluded from receiving recovery payments. 26 U.S.C. § 6428 (g)(1)(B) also infringes on Plaintiffs’ right to enjoy all the benefits of marriage afforded to other married couples.
80. Defendants cannot justify creating this classification that singles out one class of married individuals with social security numbers and subjects them to different treatment based on whom they marry.
81. Defendants intentionally discriminate against Plaintiffs when they enforce this statute that infringes on the exercise of a fundamental right.
82. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the Fifth Amendment’s Equal Protection Clause.
83. Defendants’ violation has caused and will cause Plaintiffs harm.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
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(a) Declare that 26 U.S.C. § 6428 (g)(1)(B) is unconstitutional and unenforceable because it violates the First Amendment to the U.S. Constitution and the Due Process and Equal Protection guarantees of the Fifth Amendment to the U.S. Constitution;

(b) Enjoin Defendants and their agents from enforcing 26 U.S.C. § 6428 (g)(1)(B) and further enjoin Defendants from otherwise requiring Plaintiffs and other similarly-situated individuals to provide social security numbers for their spouses in order to receive recovery payments under 26 U.S.C. § 6428 (a).

(c) Award Plaintiffs reasonable costs, expenses, and attorneys’ fees pursuant to 28 U.S.C. § 2412; and

(d) Award such additional relief as the interests of justice may require.

Dated: April 28, 2020

Respectfully submitted,

By /s/ Robert P. Newman Robert P. Newman, MBA, Esq.
Attorney & Counselor At Law 801 Wayne Avenue Suite 400 Silver Spring, MD 20910 Office: 301.892.2713 Fax: 301.883.1533 Text: 301.786.3793 rnewman@rpnewmanlaw.com

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND Thomas A. Saenz (CA Bar No. 159430 )* Belinda Escobosa (CA Bar No. 214178)* Andres Holguin-Flores (CA Bar No. 305860)* 634 S. Spring St., 11th Floor Los Angeles, CA 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 bescobosa@maldef.org

MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Nina Perales (Tex. Bar No. 24005046)* Fátima Menéndez (Tex. Bar No. 24090260)* Samantha Serna (Tex. Bar No. 24090888)* 110 Broadway, Suite 300 San Antonio, TX 78205

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Case 1:20-cv-01102-ELH Document 1 Filed 04/28/20 Page 19 of 19 Telephone: 210.224.5476 Facsimile: 210.224.5382 nperales@maldef.org MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND Andrea Senteno (NY Bar No. 5285341)* 1016 16th Street NW, Suite 100 Washington, DC 20036 Phone: (202) 293-2828 Facsimile: (202) 293-2849 asenteno@maldef.org *Application for admission pro hac vice forthcoming
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 Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION

IVANIA AMADOR, CHRISTINA

*

SEGUNDO-HERNANDEZ,

*

ANGEL BURGOS JIMENEZ,

*

JUANA RUEDA, JONAH ELIJAH

*

MACIAS, BRADLEY HARMON,

*

ERICA VACA, KELLY HERNANDEZ *

BILLY CROAN, MARY RAMIREZ,

*

YANET JOVE-AGUILAR, KRISTEN *

CENDAJES, KEVIN SANCHEZ,

*

WILLIAM RAMOS, HARLON WILSON, *

and ZACHARY SHANKS,

*

*

Plaintiffs,

*

*

v.

*

*

STEVEN MNUCHIN, sued in his official *

capacity as U.S. Secretary of the Treasury; *

CHARLES RETTIG, sued in his official *

capacity as U.S. Commissioner of Internal *

Revenue; U.S. DEPARTMENT OF THE *

TREASURY; and the U.S. INTERNAL *

REVENUE SERVICE,

*

*

Defendants.

*

Civil Action No. 1:20-cv-01102-ELH

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION 1. In response to the severe health and economic crisis caused by the COVID-19 pandemic,
the U.S. Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). One critical provision of the CARES Act creates recovery payments for individuals in order to provide direct economic assistance to workers and families. 26 U.S.C. § 6428(a). Although the recovery payments are intended to protect the American

Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 2 of 22
people from the public health and economic impacts of COVID-19, the CARES Act excludes married couples where one spouse lacks a social security number. 26 U.S.C. § 6428(g)(1)(B). These married couples receive no recovery payments. 2. Plaintiffs are individuals who possess social security numbers and whose spouses lack social security numbers. Pursuant to 26 U.S.C. § 6428(g)(1)(B), Plaintiffs receive no recovery payments under 26 U.S.C. § 6428(a) even though they have social security numbers and their children are “qualifying children” within the meaning of 26 U.S.C. § 24(c). . 3. Plaintiffs seek a declaration that 26 U.S.C. § 6428(g)(1)(B) is unconstitutional. Plaintiffs further seek class-wide relief enjoining enforcement of 26 U.S.C. § 6428(g)(1)(B) and further requiring Defendants to treat Plaintiffs, and those similarly-situated, the same as other married individuals.
PARTIES Plaintiffs 4. Plaintiff IVANIA AMADOR is a United States citizen who lives with her husband and
three U.S. citizen children in Frederick, Maryland. Plaintiff AMADOR has been married to her husband for 6 years. Plaintiff AMADOR has a social security number and her husband does not have a social security number. 5. Plaintiff CHRISTINA SEGUNDO-HERNANDEZ is a United States citizen who lives with her husband and their four U.S. citizen children in Fort Worth, Texas. Plaintiff SEGUNDO-HERNANDEZ has been married to her husband for 5 years. Plaintiff SEGUNDO-HERNANDEZ has a social security number and her husband does not have a social security number.
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6. Plaintiff ANGEL BURGOS JIMENEZ is a United States citizen who lives with her husband and five U.S. citizen children in Bristol, Virginia. Plaintiff BURGOS JIMENEZ has been married to her husband for 4 years. Plaintiff JIMENEZ has a social security number and her husband does not have a social security number.
7. Plaintiff JUANA RUEDA is a United States citizen who lives with her husband and three children in Columbus, Ohio. Plaintiff RUEDA and her husband have been married for 3 years. Plaintiff RUEDA has a social security number and her husband does not have a social security number. One of Plaintiff RUEDA’s children reaches the age of 17 in the 2020 calendar year.
8. Plaintiff JONAH ELIJAH MACIAS is a United States citizen who lives with his wife and one U.S. citizen child in Granger, Washington. Plaintiff MACIAS has been married to his wife for 2 years. Plaintiff MACIAS has a social security number and his wife does not have a social security number.
9. Plaintiff BRADLEY HARMON is a United States citizen who lives with his wife and four U.S. citizen children in Roy, Utah. Plaintiff HARMON has been married to his wife for 6 years. Plaintiff HARMON has a social security number and his wife does not have a social security number.
10. Plaintiff ERICA VACA is a United States citizen who lives with her husband and three U.S. citizen children in Sacramento, California. Plaintiff VACA has been married to her husband for 9 years. Plaintiff VACA has a social security number and her husband does not have a social security number.
11. Plaintiff KELLY HERNANDEZ is a United States citizen who lives in West Columbia, South Carolina. Plaintiff HERNANDEZ has been married to her husband for 1 year.
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Plaintiff HERNANDEZ has a social security number and her husband does not have a social security number. 12. Plaintiff BILLY CROAN is a United States citizen who lives with his husband in Merriam, Kansas. Plaintiff CROAN has been married to his husband for 7 months. Plaintiff CROAN has a social security number and his husband does not have a social security number. 13. Plaintiff MARY RAMIREZ is a United States citizen who lives with her husband and two U.S. citizen children in Mars Hill, North Carolina. Plaintiff RAMIREZ has been married to her husband for 21 years. Plaintiff RAMIREZ has a social security number and her husband does not have a social security number. 14. Plaintiff YANET JOVE-AGUILAR is a United States citizen who lives with her husband and four U.S. citizen children in DeSoto, Texas. Plaintiff JOVE-AGUILAR has been married to her husband for 11 years. Plaintiff JOVE-AGUILAR has a social security number and her husband does not have a social security number. 15. Plaintiff KRISTEN CENDAJES is a United States citizen who lives with her husband and three U.S. citizen children in Appleton, Wisconsin. Plaintiff CENDAJES has been married to her husband for 6 years. Plaintiff CENDAJES has a social security number and her husband does not have a social security number. 16. Plaintiff KEVIN SANCHEZ is a United States citizen who lives with his wife and one U.S. citizen child in Dallas, Texas. Plaintiff SANCHEZ has been married to his wife for 3 years. Plaintiff SANCHEZ has a social security number and his wife does not have a social security number.
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17. Plaintiff WILLIAM RAMOS is a United States citizen who lives with his wife and two U.S. citizen children in Chicago, IL. Plaintiff RAMOS has been married to his wife for 9 years. Plaintiff RAMOS has a social security number and his wife does not have a social security number.
18. Plaintiff HARLON WILSON is a United States citizen who lives with his husband in Indianapolis, IN. Plaintiff WILSON has been married to his husband for 5 years. Plaintiff WILSON has a social security number and his husband does not have a social security number.
19. Plaintiff ZACHARY SHANKS is a United States citizen who lives with his wife and two U.S. citizen children in Cathedral City, California. Plaintiff SHANKS has been married to his wife for 3 years. Plaintiff SHANKS has a social security number and his wife does not have a social security number.
Defendants 20. Defendant STEVEN T. MNUCHIN is the Secretary of the U.S. Department of the
Treasury. In that capacity, among other things he oversees the collection of revenue, the preparation of plans for the improvement and management of the revenue and the preparation and report of estimates of the public revenue and public expenditures. As Secretary, Defendant Mnuchin exercises full authority to administer and enforce the internal revenue laws and has the power to create an agency to enforce these laws. As part of his duties, Defendant Mnuchin oversees the issuance of recovery payments to eligible individuals under the CARES Act. He is sued in his official capacity. At all times relevant herein, Defendant Mnuchin acted in an official capacity and under color of legal authority.
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21. Defendant CHARLES RETTIG is the United States Commissioner of Internal Revenue. In that capacity, Defendant Rettig administers the application of the internal revenue laws and tax conventions to which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig reports to the Secretary of the Treasury Defendant Mnuchin. As part of his duties, Defendant Rettig oversees the issuance of recovery payments to eligible individuals under the CARES Act. He is sued in his official capacity. At all times relevant herein, Defendant Rettig acted in an official capacity and under color of legal authority.
22. 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.
23. 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. JURISDICTION AND VENUE
24. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1343 over Plaintiffs’ causes of action under the United States Constitution. This Court may grant Plaintiffs’ request for declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
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25. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1), because: 1) a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District, and 2) Plaintiff Ivania Amador resides in Frederick, Maryland within this District and no real property is involved in this action.
26. The United States has waived sovereign immunity for this action for declaratory and injunctive relief against its agencies, and the agencies’ officers are sued in their official capacities. 5 U.S.C. § 702. FACTUAL ALLEGATIONS
A. COVID-19 and the CARES Act 27. In March, 2020, the United States saw a drastic increase in the number of its residents who
became sick and died from COVID-19. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. On March 13, 2020, President Donald J. Trump declared COVID-19 a national emergency. 28. According to the U.S. Department of Labor, the national unemployment rate jumped to 4.4% in March 2020, up from 3.5% in February. This was the largest month-to-month increase since January 1975.1 The increase in unemployment was driven by COVID-19 and the shelter-in-place orders implemented to combat the coronavirus. According to the Department of Labor, employment in leisure and hospitality fell by 459,000, mainly in food services and drinking places, and declines also occurred in health care and social assistance, professional and business services, retail trade, and construction.
1 U.S. Department of Labor, Bureau of Labor Statistics, “THE EMPLOYMENT SITUATION — MARCH 2020,” available at https://www.bls.gov/news.release/pdf/empsit.pdf (last visited April 27, 2019).
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29. To provide families and workers assistance during this once-in-a-lifetime economic and health crisis, Congress enacted H.R. 748, the CARES Act. The Senate passed the CARES Act with a vote of 96 to 0 on March 25, 2020 and on March 27, 2020, the House of Representatives passed the CARES Act by voice vote. On March 27, 2020, the President signed the CARES Act into law (Public Law Number 116-136).
30. At the signing of the CARES Act, President Donald J. Trump stated: “This is a very important day. I’ll sign the single-biggest economic relief package in American history[.] And this will deliver urgently needed relief to our nation’s families, workers, and businesses.”2
31. Section 2201 of the CARES Act amends Subchapter B of chapter 65 of subtitle F of the Internal Revenue Code of 1986, by adding a new section 6428. Section 6428 is codified at 26 U.S.C. § 6428.
32. Section 6428(a) provides economic stimulus payments (“recovery payments”) 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.
33. Section 6428, through a combination of provisions, excludes otherwise qualified individuals from receiving the CARES Act recovery payments solely because their spouses lack social security numbers.
2 The White House, “Remarks by President Trump at Signing of H.R.748, The CARES Act,” available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signingh-r-748-cares-act/ (last visited April 27, 2020).
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34. Under Section 6428(d), Plaintiffs are defined as “eligible individual[s]” because they are neither “nonresident alien individual[s]” nor dependent children.
35. Plaintiffs’ children are also defined as “qualifying” for the recovery payments under Section 6428(a)(2). 26 U.S.C § 24(c).
36. However, Section 6428(g)(1)(B) also requires an eligible individual’s spouse to have provided a “valid identification number” on the most recent jointly-filed tax return with the IRS.
37. Section 6428(g)(2) defines a “valid identification number” for an adult as a social security number.
38. Sections 6428(g)(1)(B) and (g)(2) operate together to require both spouses to have social security numbers in order for any member of the family, including qualifying children, to be included in the recovery payment.
39. Plaintiffs’ spouses possess Individual Taxpayer Identification Numbers (ITIN) issued to them by Defendant U.S. Internal Revenue Service.
40. An ITIN is not a social security number and is not a “valid identification number” for the purpose of providing a recovery payment under Section 6428(a) of the CARES Act.
41. On their most recent tax returns, Plaintiffs provided their social security numbers, which is required by Section 6428(g)(1)(A) in order for an eligible individual to receive a recovery payment. Plaintiffs also provided their children’s social security numbers, which is required by Section 6428 (g)(1)(C) in order for payments for qualifying children to be included in the recovery payments. Plaintiffs also provided the ITINs of their spouses on the tax returns.
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42. However, as a result of Section 6428(g)(1)(B), although Plaintiffs are otherwise eligible to receive recovery payments under Section 6428 (a) of the CARES Act, Plaintiffs did not receive recovery payments because their spouses lack social security numbers.
43. But for their spouses lacking social security numbers, Plaintiffs would have received recovery payments for themselves and their children under the CARES Act, 26 U.S.C. §6428(a).
44. There is no mechanism by which Plaintiffs can dispute their exclusion from recovery payments.
45. During the U.S. House of Representatives debate on the CARES Act, Representative TJ Cox pointed out what he called “this bill’s glaring shortcomings,” which included the fact that the bill “punishes mixed-status households and denies some American citizens benefits they deserve.”3
46. The original Senate version of the CARES Act, S. 3548, required all married joint filers to include social security numbers for both spouses. However, the Senate created an exception for cases in which “at least 1 spouse was a member of the Armed Forces of the United States at any time during the taxable year and at least 1 spouse [has a social security number].” Section 6428(g)(3). The exception for military mixed-status couples appeared in the Senate’s final version of the CARES Act, H.R. 748, and was enacted into law.
47. None of the Plaintiffs or their spouses was a member of the Armed Forces of the United States at any time during the taxable year.
48. Prior to Senate passage of the CARES Act, the U.S. House of Representatives on March 23, 2020 took up (but did not pass) its own proposal, H.R. 6379, which also provided
3 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020) (statement of Rep. Cox of Cal.).
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recovery payments to families.4 H.R. 6379 did not require joint filers to provide social security numbers for both spouses and did not exclude the ITIN as a valid tax identification number. 49. Section 6428(g)(3) of the CARES Act demonstrates that Congress was aware that recovery payments would be generally unavailable to qualified individuals who are married to and jointly file their taxes with non-citizens who lack a social security number. 50. The exclusion of ITINs from the definition of a “valid identification number” for the purpose of providing a recovery payment under the CARES Act, and the exception created for current members of the Armed Forces, demonstrate that Congress purposefully excluded from recovery payment eligibility individuals with social security numbers who are married to spouses who lack a social security number. 51. In the weeks following passage of the CARES Act, the U.S. economy continued to contract because of the COVID-19 pandemic. Across the U.S., states shut down schools and businesses and ordered residents to stay at home to slow the spread of the coronavirus.5 On May 14, 2020, the U.S. Department of Labor reported that the advance seasonally adjusted insured unemployment rate was 15.7% for the week ending May 9, 2020.6 The number of initial jobless claims totaled 4,180,500 in the week ending May 2, 2020. 52. The U.S. is now the country with the highest number of reported COVID-19 cases.7
4 Take Responsibility for Workers and Families Act, H.R. 6379, 116th Cong. div. T, tit. II, § 201 (2020).
5 The New York Times, “See Which States Are Reopening and Which Are Still Shut Down,” April 27, 2020, available at https://www.nytimes.com/interactive/2020/us/states-reopen-mapcoronavirus.html (last visited April 28, 2020). 6 U.S. Department of Labor, “News Release, Unemployment Insurance Weekly Claims,” May 14, 2020, available at https://www.dol.gov/ui/data.pdf (last visited May 14, 2020). 7 The New York Times, “Coronavirus Map: Tracking the Global Outbreak,” April 27, 2020, available at https://www.nytimes.com/interactive/2020/world/coronavirusmaps.html?action=click&pgtype=Article&state=default&module=styln-
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B. Background on Individual Taxpayer Identification Numbers 53. An ITIN is a unique tax processing number that the U.S. Internal Revenue Service issues
to individuals who do not have and are not eligible for a social security number. I.R.C. § 6109; Treas. Reg. § 301.6109-1(a)(1)(ii)(B). Individuals use the ITIN to fulfill their legal obligation to file federal tax returns when their lack of formal immigration status prevents them from obtaining a social security number. An ITIN does not confer any immigration status or provide work authorization or eligibility for social services programs.8 54. 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. The W-7 form requires applicants to prove their identity and foreign status with any of 13 acceptable documents by the IRS, such as a passport or a birth certificate.9 55. 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.10 The IRS estimates ITIN tax filers pay over $9 billion in annual payroll taxes.11
coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu (last visited April 28, 2020). 8 Internal Revenue Serv., “Instructions for Form W-7” (Sept. 2019), available at https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 27, 2020). 9 Internal Revenue Serv., “Instructions for Form W-7” (Sept. 2019), available at https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited April 27, 2020). 10 Institute on Taxation and Economic Policy, “How the Tax Rebate in the Senate’s Bill Compares to Other Proposals,” (March 25, 2020), available at https://itep.org/how-the-taxrebate-in-the-senates-bill-compares-to-other-proposals/ (last visited April 27, 2020). 11 Internal Revenue Serv., “IRS Nationwide Tax Forum: Immigration and Taxation” (2014), available at https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20Taxation.pdf (last visited April 27, 2020).
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C. Mixed-Status Families 56. The Migration Policy Institute, a nonpartisan organization, estimates that close to two
million U.S. citizens or lawful permanent residents are married to undocumented immigrants.12 Four million children in the U.S. share a home with at least one parent who is unauthorized.13 57. Families that contain a non-U.S. citizen spouse are particularly vulnerable to the economic dislocation associated with the COVID-19 pandemic. 58. Accommodation and food services, health care and social assistance, administrative and waste services, and retail trade are the industries that experienced the biggest job layoffs in March 2020, according to the latest employment data.14 Non-U.S. citizen immigrants make up a strong proportion of the workers in these industries.15 59. Foreign-born workers earn less than native-born workers. 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.16 In addition, non-U.S. citizen immigrants are significantly more likely than citizens to lack health insurance.17
12 Migration Policy Institute, “Profile of the Unauthorized Population: United States,” available at https://www.migrationpolicy.org/data/unauthorized-immigrantpopulation/state/US#marital (last visited April 27, 2020). 13 Migration Policy Institute, “A Profile of U.S. Children with Unauthorized Immigrant Parents,” available at https://www.migrationpolicy.org/research/profile-us-children-unauthorizedimmigrant-parents (last visited April 27, 2020). 14 U.S. Bureau of Labor Statistics, “Current Employment Statistics,” April 3, 2020, available at https://www.bls.gov/web/empsit/ceseeb1a.htm (last visited April 27, 2020) 15 U.S. Bureau of Labor Statistics, “Foreign-Born Workers: Labor Force Characteristics -2018,” May 16, 2019, available at https://www.bls.gov/news.release/pdf/forbrn.pdf (last visited April 27, 2020) 16 Id. 17 Kaiser Family Foundation, “Health Coverage of Immigrants,” March 18, 2020, available at https://www.kff.org/disparities-policy/fact-sheet/health-coverage-of-immigrants/ (last visited April 27, 2020).
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60. Plaintiffs possess social security numbers and their spouses, with whom they live and raise children, do not possess social security numbers.
61. Plaintiffs pay taxes and file their tax returns jointly with their spouses just like other married individuals. Filing joint tax returns with their spouses is part of married life for Plaintiffs. Plaintiffs jointly filed their tax returns to express their family union to the government and society. Plaintiffs’ desire to jointly file their taxes is an expression of their marriages and the unity of their families, in addition to securing the benefits available to spouses who file jointly. Those benefits include, for some plaintiffs, demonstrating their family union to the government as part of the process of seeking permanent residency for their spouses.
62. Most married couples pay a lower rate of income tax if they file jointly compared to filing separately.
63. It is important to Plaintiffs' fundamental right to self-determination to express to whom they are married. That expression is sacred to them. Expressing that they are married and expressing to whom they are married dignifies the Plaintiffs’ wish to define themselves by their commitment to their spouses.
64. Plaintiffs jointly file tax returns to give recognition to their marriage and families, and to allow their children to understand the integrity and closeness of their families and their concord with other families in their communities.
65. The CARES Act’s and Defendants’ failure to provide Plaintiffs recovery payments disparages Plaintiffs’ choices and diminishes their personhood. By denying Plaintiffs and other mixed-status couples recovery payments, the CARES Act and Defendants force Plaintiffs and their children to suffer the stigma of knowing their families are adversely
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treated compared to other families. The CARES Act and Defendants humiliate Plaintiffs and the children of mixed-status couples by treating them adversely as compared to other families.
CLASS ACTION ALLEGATIONS 66. Plaintiffs bring this action on their own behalf and all other persons similarly situated,
pursuant to Federal Rule of Civil Procedure 23. 67. Plaintiffs bring this action individually and on behalf of a class defined as: All persons
who are otherwise qualified for and would have received recovery payments but for the fact that they are excluded by 26 U.S.C. § 6428(g)(1)(B) because their spouses lack social security numbers, and where neither the person nor the spouse was a member of the Armed Forces of the United States at any time during the taxable year. 68. Plaintiffs reserve the right to amend the Class and any potential subclass definitions if further investigation and discovery indicate that the Class and potential subclass definitions should be narrowed, expanded, or otherwise modified. Excluded from the Class and potential subclass are any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. 69. Members of the putative Class are so numerous that joinder is impracticable. Upon information and belief, there are over one million individuals against whom Defendants discriminate pursuant to 26 U.S.C. § 6428(g)(1)(B). Plaintiffs do not know the precise number of Class members, as this information is in Defendants’ possession. 70. The putative class shares common questions of fact and law. These include the common facts related to individuals who have a social security number and are married to spouses who lack a social security number, and the common questions: (1) whether 26 U.S.C. §
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6428(g)(1)(B) violates the U.S. Constitution by discriminating against individuals with social security numbers who are married to individuals who lack social security numbers; (2) whether Plaintiffs and the Class suffered harm as a result of 26 U.S.C. § 6428(g)(1)(B)’s and Defendants’ unlawful policy and/or practice; (3) what equitable and injunctive relief for the Class is warranted; and (5) the scope of a resulting permanent injunction. 71. The claims alleged by the named individual Plaintiffs are typical of the claims of the putative Class because the challenged statutory provision applies with the same force to the named individual Plaintiffs as they do to all other members of the Class. 72. The named individual Plaintiffs will fairly and adequately protect the interest of the Class because there are no conflicts of interest between any class members and the named individual Plaintiffs possess a strong personal interest in the subject matter of this lawsuit and the claims raised. Plaintiffs are represented by counsel with expertise in class action litigation, complex federal litigation and litigation involving constitutional law. Counsel has the legal knowledge and resources to represent fairly and adequately the interests of all class members in this action. 73. The universe of people affected by the CARES Act’s and Defendants’ unlawful policy and/or practice is ascertainable through Defendants’ records and, therefore, the Class is ascertainable. 74. This class action may be maintained under Federal Rule of Civil Procedure 23(b) because prosecuting separate actions by individual Class members would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for Defendants. Defendants also have acted or failed to act on grounds that generally apply to all Class members, necessitating the
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Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 17 of 22
declaratory and injunctive relief Plaintiffs seek. In addition, questions of law and fact common to Class members predominate over questions affecting only individual Class members. A class action is superior to other available methods for fairly and efficiently adjudicating the controversy because, among other things, a class action would concentrate a multiplicity of individual actions, which share common facts and legal disputes, in a single forum.
CAUSES OF ACTION FIRST CAUSE OF ACTION Fifth Amendment to the U.S. Constitution (Substantive Due Process) 75. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 76. The Fifth Amendment to the U.S. Constitution protects freedom of personal choice in matters of marriage and family life. 77. 26 U.S.C. § 6428(g)(1)(B)’s exclusion of Plaintiffs from receiving recovery payments, based only on to whom they are married “slic[es] deeply into the family itself.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 498 (1977). On its face, and as applied, 26 U.S.C. § 6428(g)(1)(B) selects certain categories of married individuals who may receive recovery payments and declares that others may not. In particular, 26 U.S.C. § 6428(g)(1)(B) denies recovery payments to Plaintiffs based on their choice to marry individuals who lack a social security number. 78. 26 U.S.C. § 6428(g)(1)(B)’s threatens Plaintiffs’ freedom of choice in personal matters related to marriage and family, including the sanctity of Plaintiffs' interest in defining their families though personal choice.
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Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 18 of 22
79. 26 U.S.C. § 6428(g)(1)(B) intentionally and substantially infringes upon and unduly burdens Plaintiffs’ liberty interests, as well as other interests that form the basis of Plaintiffs' fundamental right to marriage and to choose how to define their families.
80. Plaintiffs’ choice of whom to marry is fundamental to their autonomy, dignity, and selfdetermination. 26 U.S.C. § 6428(g)(1)(B)’s exclusion of Plaintiffs from receiving recovery payments unduly interferes with Plaintiffs’ fundamental rights and liberty interests, is arbitrary, unfair, and unreasonable, and lacks an adequate justification.
81. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the Fifth Amendment’s Due Process Clause. SECOND CAUSE OF ACTION First Amendment to the U.S. Constitution (Freedom of Expression)
82. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
83. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
84. Plaintiffs are members of mixed-status married couples who engage in protected First Amendment activity when Plaintiffs express their lawful marriage and commitment to their spouses who lack social security numbers through means including filing their joint federal tax returns.
85. 26 U.S.C. § 6428(g)(1)(B) violates Plaintiffs’ right to freedom of speech and association guaranteed by the First Amendment by denying them recovery payments because they express their lawful marriage and commitment to, and association with, their spouses in their most recent jointly-filed federal tax returns.
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86. Defendants rely on Plaintiffs’ speech and association in their most recent tax returns to deny Plaintiffs recovery payments.
87. There is no substantial governmental interest, rational basis, or compelling governmental interest in burdening Plaintiffs’ speech by denying Plaintiffs recovery payments because they exercise their First Amendment rights through means including filing joint tax returns with their spouses who lack social security numbers.
88. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the First Amendment. THIRD CAUSE OF ACTION Fifth Amendment to the U.S. Constitution (Equal Protection Clause)
89. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
90. The Fifth Amendment to the United States Constitution guarantees all persons equal treatment under the law. The right to marry is secured by the Equal Protection Clause.
91. 26 U.S.C. § 6428(g)(1)(B), on its face and as applied to Plaintiffs, violates the equal protection guarantee of the Fifth Amendment by burdening Plaintiffs’ fundamental right to marriage in a way that is incompatible with requirements of equality. Marriage has long been regarded as a fundamental right, the foundation of the family, and of society. It embraces the right to personal choice, individual autonomy, and dignifies couples who define themselves by their commitment to each other.
92. As a direct result of 26 U.S.C. § 6428(g)(1)(B), the federal government treats Plaintiffs, who are legally married, differently than other married couples simply because their spouses lack social security numbers. As a result of the disparate treatment, Plaintiffs are
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excluded from receiving recovery payments. 26 U.S.C. § 6428(g)(1)(B) also infringes on Plaintiffs’ right to enjoy all the benefits of marriage afforded to other married couples. 93. Defendants cannot justify creating this classification that singles out one class of married individuals with social security numbers and subjects them to different treatment based on whom they marry. 94. Defendants intentionally discriminate against Plaintiffs when they enforce this statute that infringes on the exercise of a fundamental right. 95. As a proximate result of Defendants’ conduct, Plaintiffs suffered injury to their constitutional rights under the Fifth Amendment’s Equal Protection Clause. 96. Defendants’ violation has caused and will cause Plaintiffs harm.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

(a) Declare that 26 U.S.C. § 6428(g)(1)(B) is unconstitutional and unenforceable because it violates the First Amendment to the U.S. Constitution and the Due Process and Equal Protection guarantees of the Fifth Amendment to the U.S. Constitution;

(b) Enjoin Defendants and their agents from enforcing 26 U.S.C. § 6428(g)(1)(B) and further enjoin Defendants from otherwise requiring Plaintiffs and other similarly-situated individuals to provide social security numbers for their spouses in order to receive recovery payments under 26 U.S.C. § 6428(a).

(c) Award Plaintiffs reasonable costs, expenses, and attorneys’ fees pursuant to 28 U.S.C. § 2412; and

(d) Award such additional relief as the interests of justice may require.

Dated: May 19, 2020

Respectfully submitted,

/s/ Robert P. Newman Robert P. Newman, MBA, Esq.
Attorney & Counselor At Law 801 Wayne Avenue

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Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 21 of 22
Suite 400 Silver Spring, MD 20910 Office: 301.892.2713 Fax: 301.883.1533 Text: 301.786.3793 rnewman@rpnewmanlaw.com
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND /s /Nina Perales Nina Perales (Tex. Bar No. 24005046)* Fátima Menéndez (Tex. Bar No. 24090260)* Samantha Serna (Tex. Bar No. 24090888)* 110 Broadway, Suite 300 San Antonio, TX 78205 Telephone: 210.224.5476 Facsimile: 210.224.5382 nperales@maldef.org
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND Thomas A. Saenz (CA Bar No. 159430 )** Belinda Escobosa (CA Bar No. 214178)* Andres Holguin-Flores (CA Bar No. 305860)* 634 S. Spring St., 11th Floor Los Angeles, CA 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 bescobosa@maldef.org
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND Andrea Senteno (NY Bar No. 5285341)* 1016 16th Street NW, Suite 100 Washington, DC 20036 Phone: (202) 293-2828 Facsimile: (202) 293-2849 asenteno@maldef.org
*Admitted pro hac vice *Application for admission pro hac vice forthcoming
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Case 1:20-cv-01102-ELH Document 31 Filed 05/19/20 Page 22 of 22 CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 19th day of May 2020, I electronically filed the above and foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Nina Perales Nina Perales
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

IVANIA AMADOR et al., Plaintiffs, v.
STEVEN MNUCHIN et al., Defendants.

Civil Action No. ELH-20-1102

MEMORANDUM OPINION This case concerns a constitutional challenge to a provision of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), Pub. L. 116-136, 134 Stat. 281 (2020), codified at 26 U.S.C. § 6428(g)(1)(B). The provision excludes an otherwise eligible individual from receiving emergency cash assistance in the midst of the COVID-19 pandemic if his or her spouse is an undocumented immigrant. The plaintiffs are sixteen United States citizens whose spouses lack legal status. ECF 31 (“Amended Complaint”), ¶¶ 4-19. They have sued defendants Steven T. Mnuchin, the Secretary of the U.S. Department of the Treasury; Charles Rettig, the Commissioner of the Internal Revenue Service (the “IRS”); the U.S. Department of the Treasury; and the IRS (collectively, the “Government”). Id. ¶¶ 20-23. Plaintiffs allege that 26 U.S.C. § 6428(g)(1)(B) violates the First and Fifth Amendments to the Constitution. Id. ¶¶ 75-96.1 They seek a declaration that § 6428(g)(1)(B) is unconstitutional and an order enjoining its enforcement.

1 Plaintiffs cite to the “Equal Protection Clause” of the Fifth Amendment. See ECF 31 at 19. However, no such clause exists in the Fifth Amendment. Rather, § 1 of the Fourteenth Amendment contains such a clause. Nonetheless, this mistake is of no moment because, as discussed below, equal protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

On May 15, 2020, the Court held a telephone conference with counsel. Counsel agreed to provide the Court with abbreviated submissions outlining the bases for a proposed motion to dismiss, the grounds in opposition, and a reply. ECF 30.2 The truncated briefing was necessitated by the challenges resulting from the COVID-19 pandemic, as pertinent to this and many other cases. I advised the parties that, if the Court were to resolve any issues raised in the submissions without further briefing, those issues would be deemed preserved for appeal, as if they had been raised in a more detailed motion to dismiss under Fed. R. Civ. P. 12(b). See id. And, the parties may reassert and amplify their arguments in connection with a motion for summary judgment and the opposition to it.
Accordingly, I shall construe defendants’ submission as a motion to dismiss. ECF 32 (the “Motion”). Defendants assert that the suit is subject to dismissal based on sovereign immunity, standing, and failure to state a valid claim. Plaintiffs oppose the Motion (ECF 36) and the Government has replied. ECF 41. In addition, the Federation for American Immigration Reform (“FAIR”) filed an amicus brief. ECF 38. The Government (ECF 40) and plaintiffs (ECF 42) have both submitted letters disputing FAIR’s contentions.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.
2 The Government’s initial letter and plaintiffs’ opposition were not to exceed ten pages, and the reply was not to exceed four pages.
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I. Factual Background3
The COVID-19 virus has triggered the worst public health crisis the country has
experienced since 1918.4 The novel coronavirus is a highly contagious and sometimes fatal
respiratory illness.5 It first appeared in Wuhan, China in December 2019; in a matter of months,
COVID-19 spread to every corner of the globe.6 On March 12, 2020, the World Health
Organization declared COVID-19 a global pandemic. See WHO Director-General’s opening
remarks at the mission briefing on COVID-19, WORLD HEALTH ORG. (March 12, 2020),
https://bit.ly/2XWdodD. The next day, President Trump declared a national emergency. See The
3 Given the posture of the case, I must assume the truth of all factual allegations in the Complaint. See Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019). However, the Court can “take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
I note that on June 19, 2020, Judge Paul W. Grimm issued a Memorandum Opinion and Order denying the Government’s motion to dismiss a related lawsuit challenging § 6428(g). See R.V. v. Mnuchin, PWG-20-1148, 2020 WL 3402300, at *8 (D. Md. June 19, 2020). In that case, the plaintiffs are seven United States citizen children and their parents. The children were denied cash assistance under the CARES Act because one or both of their parents are undocumented. They allege, inter alia, that § 6428(g) discriminates on the basis of their parents’ alienage, in violation of equal protection. See id. at *1. In addition to injunctive relief, they seek an award of the cash assistance payments. Judge Grimm rejected the Government’s arguments for dismissal predicated on sovereign immunity, standing, and failure to state a claim.
4 Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) is the cause of coronavirus disease 2019, commonly called COVID-19. See Naming the Coronavirus Disease and the Virus that Causes It, WORLD HEALTH ORG., https://bit.ly/2UMC6uW (last accessed June 15, 2020).
5 Fatality rates increase with age and underlying health conditions, such as cardiovascular disease, respiratory disease, diabetes, and immune compromise. See Coronavirus Disease 2019 (COVID-19), People Who Are at Risk for Severe Illness, CTRS. FOR DISEASE CONTROL & PREVENTION (July 17, 2020), https://bit.ly/2WBcB16.
6 As of August 5, 2020, the coronavirus has infected over 18 million individuals worldwide and caused over 700,000 deaths. See COVID-19 Dashboard, THE JOHNS HOPKINS UNIV., https://bit.ly/2WD4XU9 (last accessed Aug. 5, 2020).
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White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/3flFu8i.
Because there is currently no effective treatment for COVID-19, the Centers for Disease and Control has implored citizens to practice “social distancing” in order to abate the spread of the virus. See Coronavirus Disease 2019 (COVID-19), How to Protect Yourself & Others, CTRS. FOR DISEASE CONTROL & PREVENTION, https://bit.ly/3dPA8Ba. To that end, in the spring of 2020 nearly every state in the country issued mandatory stay-at-home orders, directing residents to remain at home except to conduct essential activities. See Sarah Mervosh et al., See Which States Are Reopening and Which Are Still Shut Down, N.Y. TIMES (May 15, 2020), https://nyti.ms/2Z6Fm7F. As a result, life as we know it came to a halt; schools, restaurants, bars, shopping malls, retail stores, and houses of worship all shuttered for a significant period of time.
Social distancing measures, although necessary to thwart the spread of the virus, had tremendous economic consequences. Personal consumption in March 2020 plummeted by a record 7.5 percent. See Personal Income and Outlays: March 2020, U.S. BUREAU OF ECON. ANALYSIS (Apr. 30, 2020 8:30 a.m.), https://bit.ly/3d8wUZ2. In the month of April 2020 alone, more than 20 million Americans lost their jobs, driving the unemployment rate to 14.7 percent, the largest single-month increase ever recorded. See Economic News Release, U.S. BUREAU OF LAB. STAT. (May 8, 2020 8:30 a.m. EST), https://bit.ly/2UGiOYr. These losses reached people from all stations of life: the leisure and hospitality industry lost 7.7 million jobs (nearly half the industry), while the education and health services industry, the professional and business services industry, and the retail trade industry each shed more than 2 million jobs. Id.
On March 27, 2020, Congress passed and President Trump signed the CARES Act, Pub. L. 116-136, 134 Stat. 281 (2020), a $2.2 trillion stimulus package designed to alleviate the
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incredible economic devastation wrought by the pandemic. Relevant here, § 2201(a) of the CARES Act, codified at 26 U.S.C. § 6428, harnessed the federal tax infrastructure to provide emergency financial assistance to Americans in the form of an advanced refundable tax credit. Defendants refer to the credit as an “economic impact payment.” See Economic Impact Payment Information Center, INTERNAL REVENUE SERV. (July 15, 2020), https://bit.ly/2WEtZBO; The CARES Act Provides Assistance to Workers and their Families, U.S. DEP’T OF THE TREASURY, https://bit.ly/39gPGwE (last accessed July 20, 2020).
Specifically, § 6428(a) provides that an “eligible individual . . . shall be allowed” a “credit against the tax imposed” for the 2020 tax year in the amount of $1,200, or $2,400 “in the case of eligible individuals filing a joint return.” 26 U.S.C. § 6428(a)(1).7 An eligible individual also receives an additional $500 credit for each qualifying child under the age of seventeen. Id. § 6428(a)(2). Receipt of this money “shall be treated” as a refundable credit, id. § 6428(b), meaning that the impact payment is not taxed even if it exceeds the recipient’s tax liability.
The CARES Act directs the Secretary of the Treasury to issue the credit “as rapidly as possibly” and specifies that no impact payment “shall be made or allowed” after December 31, 2020. Id. § 6428(f)(3)(A). As of April 24, 2020, the IRS reported that it had disbursed nearly $160 billion in impact payments to over 89.5 million Americans. See Treasury, IRS Deliver 89.5 Million Economic Impact Payments in First Three Weeks, Release State-By-State Economic Impact Payment Figures, INTERNAL REVENUE SERVS. (Apr. 28, 2020), https://bit.ly/30LGAUO.
7 The amount of the credit decreases above certain adjusted gross income (“AGI”) levels, depending on the individual’s filing status. The phaseout begins at an AGI of $150,000 for joint filers, $112,500 for head-of-household filers, and $75,000 for those filing single or married filing separately. 26 U.S.C. § 6428(c).
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Receipt of the impact payment is contingent on the satisfaction of several prerequisites. First, the individual’s income must fall below a statutory threshold. 26 U.S.C. § 6428(c). Second, in order to qualify as an “eligible individual,” the recipient cannot be either a “nonresident alien individual” or a dependent child. Id. § 6428(d). An individual can demonstrate compliance with these requirements in the 2020 calendar year using either a 2018 or 2019 tax return or in the 2021 calendar year based on a 2020 tax return. See id. § 6428(a), (f).
Section 6428(g) contains additional limitations. Relevant here, § 6428(g)(1) provides: (g) 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 . . . . In turn, § 6428(g)(2) defines “valid identification number” as a Social Security Number (“SSN”) issued to a citizen of the United States, a lawful permanent resident (“LPR”), or a noncitizen who is not a LPR but who has work authorization. See id. § 6428(g)(2) (defining SSN in reference to 26 U.S.C. 24(h)(7)). This requirement is significant because undocumented immigrants are not eligible to obtain an SSN; they use an Individual Taxpayer Identification Number (“ITIN”) issued to them by the IRS to file a tax return. See ECF 31, ¶ 39; see also 20 C.F.R. § 422.104(a) (delineating the eligibility requirements to obtain a SSN). Consequently, §§ 6428(g)(1)(B) and (g)(2) operate in tandem to exclude otherwise eligible individuals and their children from receipt of impact payments if they file a joint tax return and if their spouse is undocumented and therefore lacks a SSN.
6

According to plaintiffs, this result is no accident. ECF 31, ¶ 45. They point out that during the floor debates of the CARES Act, Congressman TJ Cox of California highlighted what he called the CARES Act’s “‘glaring shortcomings,’” which included that it “‘punishes mixed-status households and denies some American citizens benefits they deserve.’” Id. (quoting 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020)). Moreover, although the original Senate version of the CARES Act required that all married joint filers possess SSNs in order to be eligible for impact payments, the Senate inserted an exception permitting families to receive the credit if one spouse lacked a SSN, so long as the other spouse was a member of the Armed Forces, which is codified at 26 U.S.C. § 6428(g)(3). Plaintiffs claim that this exception “demonstrates that Congress was aware that impact payments would be generally unavailable to qualified individuals who are married to and jointly file their taxes with non-citizens who lack a [SSN].” ECF 31, ¶ 49.
As noted, plaintiffs are sixteen American citizens. Id. ¶¶ 4-19. Some have citizen children, and all are married to individuals who use an ITIN to file a federal tax return. Id. Plaintiffs allege that they filed a joint federal tax return that included their SSN, the SSNs of any eligible children, and their spouse’s ITIN. See id. ¶ 41. However, plaintiffs claim that they did not receive an impact payment. See id. ¶¶ 42-43. According to plaintiffs, but for their spouse’s lack of a SSN, they are otherwise eligible to receive an impact payment. See id. Thus, they claim that § 6428(g)(1)(B) is the sole reason that they have not received the credit. See id.
The Amended Complaint contains three causes of action. First, plaintiffs allege that § 6428(g)(1)(B) “intentionally and substantially infringes upon” their “fundamental right to marriage and to choose how to define their families,” in violation of the Due Process Clause of the Fifth Amendment. Id. ¶ 79. Second, plaintiffs assert that § 6428(g)(1)(B) violates their “right to freedom of speech and association guaranteed by the First Amendment by denying them recovery
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payments because they express their lawful marriage and commitment to, and association with, their spouses in their most recent jointly-filed federal tax returns.” Id. ¶ 85. Third, plaintiffs claim that § 6428(g)(1)(B) violates the equal protection component of the Fifth Amendment because it treats them “differently than other married couples simply because their spouses lack social security numbers” and denies them a “benefit[] of marriage afforded to other couples.” Id. ¶ 92.
Plaintiffs also seek to certify a nationwide class under Fed. R. Civ. P. 23(b). See id. ¶¶ 6674. Specifically, plaintiffs seek to certify the following class: “All persons who are otherwise qualified for and would have received recovery payments but for the fact that they are excluded by 26 U.S.C. § 6428(g)(1)(B) because their spouses lack social security numbers, and where neither the person nor the spouse was a member of the Armed Forces of the United States at any time during the taxable year.” Id. ¶ 67.
II. Standards of Review 1. Rule 12(b)(1)
District courts of the United States are courts of limited jurisdiction; they possess “‘only that power authorized by Constitution and statute.’” Gunn v. Minton, 586 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see Home Depot U.S.A., Inc. v. Jackson, ___ U.S. ___, 139 S. Ct. 1743, 1746 (2019); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Simply put, “if Congress has not empowered the federal judiciary to hear a matter, then the case must be dismissed.” Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir. 2014); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“‘Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.’”) (citation omitted).
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Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to challenge the court’s subject matter jurisdiction over the plaintiff’s suit. Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. E. W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). However, a court should grant a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) “‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.’” B.F. Perkins, 166 F.3d at 647 (citation omitted).
A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge or a factual challenge. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); accord Hutton v. Nat’l Bd. of Exam’rs Inc., 892 F.3d 613, 620-21 (4th Cir. 2018). Here, the Government raises a facial challenge to the Court’s subject matter jurisdiction, asserting that the doctrine of sovereign immunity forecloses plaintiffs’ claims. ECF 31 at 3-4; see Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (observing that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims’”) (citation omitted), cert. denied, ___ U.S. ___, 139 S. Ct. (2018). In such a case, “the defendant must show that a complaint fails to allege facts upon which subject-matter jurisdiction can be predicated.” Hutton, 892 F.3d at 621 n.7; see Kerns, 585 F.3d at 192.
2. Rule 12(b)(6) A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Fessler v. Int’l Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019);
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In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Of course, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).
In other words, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.’” Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citation omitted); see Semenova v. Md. Transit
10

Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, “a court is not required to accept legal conclusions drawn from the facts.” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019); see Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses’” under Rule 12(b)(6). Bing v. Brio Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020) (quoting King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016)). But, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). This occurs only when “all facts necessary to the affirmative defense ‘clearly appear on the face of the complaint.’” Id. (alteration, emphasis, and citation omitted).
III. Discussion The Government moves to dismiss plaintiffs’ suit on three grounds: sovereign immunity, Article III standing, and failure to state a claim. Defendants first argue that they are entitled to sovereign immunity, and therefore the Court lacks subject matter jurisdiction. ECF 32 at 3-4. Second, the Government contends that plaintiffs’ alleged injury is too speculative to satisfy Article III standing. Id. at 6-7. Third, defendants maintain that plaintiffs’ constitutional claims fail as a matter of law. Id. at 7-11. Plaintiffs oppose each argument, asserting that the Administrative
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Procedure Act (“APA”), 5 U.S.C. § 702, waives defendants’ sovereign immunity; they have adequately pleaded an injury in fact; and the Amended Complaint alleges viable claims. ECF 36.
I shall address each contention, in turn. Sovereign Immunity
According to defendants, the Court is without subject matter jurisdiction to hear plaintiffs’ claims because the United States has not expressly waived its sovereign immunity. ECF 32 at 35. In response, plaintiffs maintain that the APA’s waiver of sovereign immunity applies because they seek only declaratory and injunctive relief. ECF 36 at 3-5; see ECF 31, ¶ 26.8
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994); see United States v. Mitchell, 463 U.S. 206, 212 (1983); Dalehite v. United States, 346 U.S. 15, 30 (1953). That is, the United States is “immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941); see Mitchell, 463 U.S. at 212 (observing that it is “axiomatic that the United States may not be sued without its consent”). The sovereign immunity of the United States also generally extends to federal officers sued in their official capacity. See Dugan v. Rank, 372 U.S. 609, 620 (1963); Portsmouth Redev. & Hous. Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir. 1983). Therefore, defendants enjoy “a presumption of immunity,” Robinson v. U.S. Dep’t of Educ., 917 F.3d 799, 801 (4th Cir. 2019), cert. denied, __ U.S. ___, 140 S. Ct. 1440 (2020), and plaintiffs have the
8 In the analogous case pending before Judge Grimm, concerning the stimulus benefits for children, the plaintiffs asserted and Judge Grimm determined that, under the seminal case of Ex parte Young, 209 U.S. 123 (1908), sovereign immunity is waived as to the individual defendants with respect to the plaintiffs’ constitutional claims for equitable relief. See R.V., 2020 WL 3402300, at *5. Here, plaintiffs have not invoked the Ex parte Young exception. Because I conclude that the APA suffices to waive defendants’ sovereign immunity, I do not address the applicability of that doctrine to this suit.
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burden to demonstrate a waiver of the Government’s sovereign immunity. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005).
A “waiver of sovereign immunity must be unequivocally expressed in statutory text,” and be “clearly evident from the language of the statute.” FAA v. Cooper, 566 U.S. 284, 290 (2012) (internal quotation marks omitted); see Lane v. Pena, 518 U.S. 187, 192 (1996) (observing that a waiver of sovereign immunity “must be unequivocally expressed in statutory text, and will not be implied”). In other words, a waiver of sovereign immunity “cannot contain an ambiguity, which ‘exists if there is a plausible interpretation of the statute that would not authorize money damages against the Government.’” Robinson, 917 F.3d at 802 (quoting Cooper, 566 U.S. 290-91). Moreover, waivers of sovereign immunity “must be ‘strictly construed in favor of the sovereign.’” Welch, 409 F.3d at 650 (ellipses omitted) (quoting Lane, 518 U.S. at 192). Simply put, sovereign immunity “can only be waived by statutory text that is unambiguous and unequivocal.” Robinson, 917 F.3d at 802.
Plaintiffs do not identify a waiver of sovereign immunity in the CARES Act. Instead, they locate the waiver in § 702 of the APA. Entitled “Right of Review,” it provides, in part, 5 U.S.C. § 702: “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.” This waiver of sovereign immunity encompasses claims asserted under the APA as well claims arising under non-APA authority that seek equitable relief from agency action. See Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 775 (7th Cir. 2011) (collecting cases).
Plaintiffs pursue only declaratory and injunctive relief; they do not seek damages. So, it would seem that § 702 applies to their suit. However, § 704 of the APA imposes another limitation
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on judicial review, authorizing review of agency action under the APA only if “there is no other adequate remedy in a court.” 5 U.S.C. § 704; see U.S. Army Corps. of Eng’rs v. Hawkes Co., ___ U.S. ___, 136 S. Ct. 1807, 1815 (2016); Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). Section 704 reflects Congress’s judgment that “the general grant of review in the APA” should not “duplicate existing procedures for review of agency action” or “‘provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.’” Bowen, 487 U.S. at 903 (citation omitted).
According to the government, this is where plaintiffs’ reliance on the APA founders. ECF 32 at 4. In its view, plaintiffs can challenge the constitutionality of § 6428(g)(1)(B) by bringing a tax refund action against the IRS, pursuant to 26 U.S.C. § 7422(a). If so, then § 704 requires plaintiffs to proceed under § 7422, not the APA. And, in that circumstance, defendants insist that plaintiffs’ suit is premature because they have not exhausted their administrative remedies to seek a tax refund. See ECF 32 at 5.
The Court’s analysis of whether an alternative remedy is “adequate” under § 704 and therefore displaces the APA is guided by several background considerations. First, because the benchmark is adequacy, an alternative remedy will be deemed to preclude the APA so long as it offers the “‘same genre’” of relief as the APA. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (citation omitted); see Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017). For instance, the APA is ordinarily not available where another statute provides for de novo review of an agency decision in federal district court. See, e.g., Hinojosa v. Horn, 896 F.3d 305, 311-13 (5th Cir. 2018) (per curiam) (requiring plaintiffs to challenge passport denial under 8 U.S.C. § 1503, not the APA, because it “provides a direct and guaranteed path to judicial review”); Gulf Cost Mar. Supply, Inc. v. United States, 867 F.3d 123,
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131 (D.C. Cir. 2017) (holding that the Federal Alcohol Administration Act displaces the APA because it provides for judicial review of alcohol-permit revocations); Nielsen v. Hagel, 666 F. App’x 225, 231 (4th Cir. 2016) (concluding that Title VII provides adequate remedy for federal employment discrimination claim).
In contrast, although the alternative remedy “need not provide relief identical to relief under the APA,” Vilsack, 563 F.3d at 522, a remedy is inadequate if it offers only “doubtful and limited relief.” Bowen, 487 U.S. at 901. For instance, in Bowen, 487 U.S. 879, the Supreme Court rejected the Government’s argument that § 704 barred Massachusetts’s APA challenge to the denial of certain Medicaid expense reimbursements because the state could seek money damages in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491. Id. at 90405. That remedy was inadequate, the Supreme Court explained, because the Claims Court “‘has no power to grant equitable relief,’” but the Medicaid program envisioned an ongoing relationship between the parties. Id. at 905 (citation omitted). As a result, the Supreme Court was “not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief.” Id.
Further, courts consider whether the alternative remedy “carr[ies] the risk of ‘serious criminal and civil penalties,’” or imposes on the plaintiff an “arduous, expensive, and long” administrative process that does not aid in the determination of the underlying legal question. Hawkes, 136 S. Ct. at 1815 (citation omitted). If so, then the remedy is inadequate. For example, the Supreme Court concluded in Hawkes, 136 S. Ct. 1807, that the Army’s administrative process for determining whether a body of water was covered under the Clean Water Act was not an adequate alternative to APA review because it entailed expensive scientific assessments that had no “pertinence” to the jurisdictional question. See id. at 1815-16.
15

Last, a remedy is adequate if the court can discern from the statute “‘clear and convincing evidence’” that Congress intended it to supplant the APA. Citizens for Responsibility, 846 F.3d at 1244 (citation omitted); see Hinojosa, 986 F.3d at 311; Vilsack, 563 F.3d at 523. The D.C. Circuit has suggested that the “creation of both agency obligations and a mechanism for judicial enforcement in the same legislation” serve as compelling indicia of an intent to create a specific remedy that trumps the APA. Citizens for Responsibility, 846 F.3d at 1245.
Considering these factors here, a refund action brought under § 7422 is not an adequate avenue for plaintiffs to challenge § 6428(g)(1)(B). To begin with, in King v. Burwell, 759 F.3d 358 (4th Cir. 2014), aff’d, ___ U.S. ___, 135 S. Ct. 2480 (2015), the Fourth Circuit rejected the same argument that the Government now presses. There, the plaintiffs brought an APA action against an IRS rule implementing the Affordable Care Act’s health insurance tax credit, which was intended to serve as a carrot to offset the stick of the law’s health insurance mandate. Id. at 36365. In defending the rule, the Government asserted that the availability of a tax refund action under § 7422 prevented the plaintiffs from using the APA’s waiver of sovereign immunity.
The Fourth Circuit was unpersuaded. It reasoned that the plaintiffs were “not seeking a tax refund; they ask[ed] for no monetary relief, alleging instead claims for declaratory and injunctive relief in an attempt to forestall the lose-lose choice (in their minds) of purchasing a product they do not want or paying the penalty.” Id. at 366-67. Further, the Court observed that the plaintiffs’ suit was “not a typical tax refund action in which an individual taxpayer complains of the manner in which a tax was assessed or collected and seeks reimbursement for wrongly paid sums.” Id. at 367. Rather, the plaintiffs “challenge[d] the legality of a final agency action, which is consistent with the APA’s underlying purpose of ‘remov[ing] obstacles to judicial review of agency action.’” Id. (second alteration in King) (quoting Bowen, 487 U.S. at 904). Accordingly, the Fourth Circuit
16

concluded that because § 7422 did not afford the plaintiffs an adequate remedy, it did not displace the APA.
The same rationale applies here. As in King, plaintiffs pursue only declaratory and injunctive relief. It is true that if a court were to enjoin the enforcement of § 6428(g)(1)(B), this might well result in plaintiffs’ receipt of the impact payment. But, an injunction’s secondary effects do not transform a suit for equitable relief into one for damages. See Bowen, 487 U.S. at 893-94. Moreover, much as in King, this case cannot be characterized as a tax refund action. Plaintiffs do not “complain[] of the manner in which a tax was assessed or collected,” nor do they seek “reimbursement for wrongly paid sums.” King, 759 F.3d at 367. Instead, they “challenge the legality of a final agency action,” id., namely the implementation of § 6428(g)(1)(B). Thus, just as § 7422 was an inadequate remedy in King, so it is here.
Putting King aside, requiring plaintiffs to seek judicial relief through a tax refund action would erect unnecessarily onerous and costly barriers to plaintiffs’ suit. As defendants note, before an action can be brought under § 7422, the taxpayer must (1) file a tax return; (2) file a timely administrative claim with the IRS; and (3) the IRS must deny the claim or fail to act within six months. See 26 U.S.C. §§ 6511(a), 6532(a)(1); see ECF 32 at 5. This process is intended to promote the efficient resolution of tax disputes by giving the IRS notice of a claim and an opportunity to rectify errors or clarify misunderstandings before the plaintiff goes to federal court. See United States v. Clintwood Elhorn Min. Co., 553 U.S. 1, 11 (2008) (discussing the purposes of § 7422); Montrios v. United States, 916 F.3d 1056, 1062 (D.C. Cir. 2019) (same).
Forcing plaintiffs to exhaust their administrative remedies would be an “arduous, expensive, and long” process, Hawkes, 136 S. Ct. at 1815-16, that serves none of the goals underlying § 7422. Before plaintiffs could challenge § 6428(g)(1)(B), they would first have file a
17

2020 tax return, which they cannot do until 2021. Then, plaintiffs would have to wait until the IRS invariably denies their request for a refund in the amount of the CARES Act payment, because they are ineligible per § 6428(g)(1)(B). Once that happens, plaintiffs would have to file an administrative claim with the IRS, asking it to reconsider its position. But, here too, the IRS will reject plaintiffs’ claim, citing § 6428. Thus, administrative exhaustion under § 7422 is guaranteed to be an exercise in futility because there is no possibility that it could provide plaintiffs with relief. See Cohen v. United States, 650 F.3d 717, 732 (D.C. Cir. 2011) (en banc) (concluding that the § 7422 was not an adequate alternative to APA where administrative exhaustion could not remedy plaintiff’s complaint). This Kafkaesque scenario is at odds with the very purpose of the impact payments—to assist Americans grappling with the economic fallout of a public health catastrophe.
Finally, an examination of § 7422’s text reveals no signs of “legislative intent to create a special, alternative remedy and thereby bar APA review.” Citizens for Responsibility, 846 F.3d at 1244 (internal quotation marks and citation omitted). As noted, § 7422 provides a cause of action for the “recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . .” 26 U.S.C. § 7422(a). Plaintiffs do not seek the recovery of any monies wrongfully “assessed” because they do not allege that the IRS improperly calculated their tax liability. See Hibbs v. Winn, 542 U.S. 88, 100 (2004) (“As used in the Internal Revenue Code (IRC), the term ‘assessment’ involves a ‘recording’ of the amount the taxpayer owes the Government.”). Nor do plaintiffs complain of taxes wrongfully “collected.” Instead, they challenge the discriminatory effect of a refundable tax credit under the First and Fifth Amendments. Certainly, the mismatch between the plain language of § 7422 and the nature of plaintiffs’ suit does not support the finding that Congress intended § 7422 to replace the APA. In fact, if anything, it leaves the Court “doubtful,” Bowen, 487 U.S. at 901, that § 7422 can serve as
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a statutory basis for plaintiffs to challenge § 6428(g)(1)(B). Cf. R.V. v. Mnuchin, PWG-20-1148, 2020 WL 3402300, at *7 (D. Md. June 19, 2020).
Accordingly, I conclude that defendants’ sovereign immunity is waived under 5 U.S.C. § 702. It follows that the Court has subject matter jurisdiction over plaintiffs’ suit.
Standing Aside from sovereign immunity, the Government argues that plaintiffs’ claims are not justiciable because plaintiffs’ alleged injury is too speculative to confer Article III standing. ECF 32 at 6-7. It is a bedrock principle that Article III of the Federal Constitution confines the federal courts to the adjudication of “actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990); see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013); Chi. & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892). “One element of the case-orcontroversy requirement” is that a plaintiff must establish Article III standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997); see Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016) (“Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.”); Ansley v. Warren, 861 F.3d 512, 517 (4th Cir. 2017) (“An essential element” of the case-or-controversy requirement “is that any party who invokes the court’s authority must establish standing”). In short, Article III standing is a sine qua non of litigation in federal court.9 The “‘irreducible constitutional minimum’” of Article III standing is well established: The “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
9 The doctrine of standing consists of two distinct “strands”: constitutional standing, pursuant to Article III, and prudential standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). The Government only disputes plaintiffs’ Article III standing. See ECF 32 at 6-7.
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Spokeo, Inc., 136 S. Ct. at 1547 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1993)); see Thole v. U.S. Bank N.A., ___ U.S. ___, 140 S. Ct. 1615, 1618 (2020); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 168 (2014); Hollingsworth v. Perry, 570 U.S. 693, 715 (2013); accord Maryland Shall Issue, Inc. v. Hogan, ___ F.3d ___, 2020 WL ___, slip op. at 12 (4th Cir. Aug. 3, 2020). At bottom, these requirements ensure that the plaintiff has “‘a personal stake in the outcome of the controversy.’” Gill v. Whitford, ___ U.S. ___, 138 S. Ct. 1916, 1929 (2018) (citation omitted).
The only dispute regarding plaintiffs’ standing centers on the first element, that is, whether they have sufficiently alleged a cognizable injury. Significantly, a plaintiff’s burden to show standing tracks the applicable standard of review: “at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice” to establish standing. Lujan, 504 U.S. at 561; see Warth v. Seldin, 422 U.S. 490, 518 (1975) (observing that a plaintiff must “clearly . . . allege facts demonstrating” each standing element); Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 240 (4th Cir. 2019) (applying Iqbal/Twombly standard to standing).
An injury in fact is the “‘[f]irst and foremost’ of standing’s three elements.” Spokeo, 136 S. Ct. at 1547 (alteration in Spokeo; citation omitted); see Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649, 653 (4th Cir. 2019) (“An injury in fact is an indispensable aspect of constitutional standing . . . .”). To satisfy the injury-in-fact requirement, the plaintiff must plausibly allege “an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (quotation marks and citation omitted); see Maryland Shall Issue, 2020 WL ___, slip op. at 12. These subsidiary elements are distinct. See Spokeo, 136 S. Ct. at 1548 (opining that
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concreteness and particularity are “quite different”); accord Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020).
A particularized injury “must affect the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at 1548 (internal quotation marks omitted). To be concrete, the injury must be “real and not abstract.” Id.; see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (requiring the alleged injury to be “distinct and palpable, as opposed to merely abstract”). “‘[F]inancial harm is a classic and paradigmatic form of injury in fact.’” Maryland Shall Issue, 2020 WL ___, slip op. at 14 (alteration in original and citation omitted). But, concreteness is not coterminous with tangible economic or physical harm. See Spokeo, 136 S. Ct. at 1549. To the contrary, an “injury-in-fact is often predicated on intangible harm,” Baehr, 953 F.3d at 252, including the invisible wounds inflicted by discrimination. See Allen v. Wright, 468 U.S. 737 (1984) (remarking that the stigma of discrimination “accords a basis for standing” to “‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct”) (citation omitted); see, e.g., Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (male retiree had standing to challenge gender-based classification in Social Security allocations); Bostic v. Schaefer, 760 F.3d 352, 371-72 (4th Cir. 2014) (same-sex couple had standing to challenge state’s same-sex marriage ban).
As for the imminence requirement, although it is “‘a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes.’” Clapper, 568 U.S. at 409 (quoting Lujan, 504 U.S. at 564 n.2). Accordingly, an allegation of threatened injury in the future is sufficient to establish standing only “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List, 134 S. Ct. at 2341 (quoting Clapper, 133 S. Ct. at 1147, 1150 n.5). An
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injury that “relies on a highly attenuated chain of possibilities” does not qualify as “certainly impending.” Clapper, 568 U.S. at 410.
Plaintiffs’ alleged injuries easily satisfy these requirements. ECF 31, ¶ 65; ECF 36 at 5-7. To begin with, plaintiffs claim that because of 26 U.S.C. § 6428(g)(1)(B), they have not received the impact payment to which they and their children are otherwise entitled. ECF 31, ¶¶ 42-43. This pocketbook injury is the textbook example of injury in fact. See Sierra Club v. Morton, 405 U.S. 727, 733 (1972) (“[P]alpable economic injuries have long been recognized as sufficient to lay the basis for standing . . . .”); see also Pinson v. JPMorgan Chase Bank, N.A., 942 F.3d 1200, 1207 (11th Cir. 2019) (“[E]conomic harm is a quintessential injury in fact.”); Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760 (4th Cir. 2018) (concluding that the plaintiff’s alleged financial losses satisfied the injury requirement); Cottrell v. Alcon Labs., 874 F.3d 154, 163 (3d. Cir. 2017) (advising that “where a plaintiff alleges financial harm, standing ‘is often assumed without discussion’”) (citation omitted); Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56-57 (2d Cir. 2016) (“Any monetary loss suffered by the plaintiff satisfies the [injury] element . . . .”); In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 751 (7th Cir. 2011) (“A financial injury creates standing.”).
Moreover, “[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group,” the “injury in fact” at issue is “the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 657 (1993) (“NFAGC”). In other words, discriminatory treatment, if personally experienced by the plaintiff, is a sufficient injury to confer standing. See Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir. 2004) (“Discriminatory
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treatment . . . qualif[ies] as an actual injury for standing purposes.”); see Hassan v. City of New York, 804 F.3d 277, 290 n.1 (3d Cir. 2015) (collecting cases).
Here, plaintiffs allege the denial of equal of treatment, claiming that § 6428(g)(1)(B) erects barriers that they, but not other eligible, married individuals, must overcome to obtain an impact payment, simply because they are married to someone who lacks legal status. ECF 31, ¶¶ 34-43. An individual who satisfies the income threshold and files a joint tax return with a spouse who has a SSN is entitled to receive an impact payment without any further action. In contrast, § 6428(g)(1)(B) bars plaintiffs from receiving the credit if they file a joint tax return because their spouse lacks a SSN. Thus, in order to receive the impact payment, plaintiffs must either obtain a divorce, file a separate tax return, resolve their spouse’s immigration status, or join the military to qualify for the exception contained in § 6428(g)(3). This differential treatment, which simultaneously impedes plaintiffs’ ability to access a benefit enjoyed by other married individuals and allegedly infringes on the fundamental right of marriage, is a concrete and particular injury.
The Government’s arguments to the contrary are not persuasive. In its view, plaintiffs’ alleged injuries are too speculative because “the 2020 tax year has not yet ended,” and therefore plaintiffs “may still become eligible for a CARES Act credit or may be ineligible for a reason other than the SSN requirement.” ECF 41 at 3. In the same vein, defendants argue that courts have consistently rejected the contention that the possibility of future action by the IRS qualifies as an injury in fact. ECF 32 at 6 (citing Coon v. Wood, 160 F. Supp. 3d 246, 251 (D.D.C. 2016)). But, the Government does not dispute that § 6428(g)(1)(B) distinguishes between plaintiffs and other similarly-situated individuals based solely on the immigration status of their spouses. This “personal injury,” which plaintiffs are presently experiencing, has “long [been] recognized as judicially cognizable.” Heckler, 465 U.S. at 738; see NFAGC, 508 U.S. at 657. And, given that
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§ 6428(g)(1)(B) compels the denial of impact payments to plaintiffs, their alleged pecuniary harm does not rest on a “speculative chain of possibilities.” Clapper, 568 U.S. at 414.
In sum, taking plaintiffs’ allegations as true, they have plausibly alleged an injury in fact for the purpose of Article III standing. Therefore, I shall deny defendants’ Motion to the extent that it seeks dismissal of the suit based on lack of standing.
Failure to State a Claim 1. Fifth Amendment Although plaintiffs’ claims are justiciable, that does not end the inquiry, because the Government also contends that plaintiffs fail to state causes of action under the Constitution. ECF 32 at 7-11. I turn first to examine the viability of plaintiffs’ claims that § 6428(g)(1)(B) violates the Fifth Amendment because it burdens their fundamental right to marriage and singles them out for disfavored treatment based on their spouse’s immigration status. ECF 31, ¶¶ 75-81, 89-96. Under the Due Process Clause of the Fifth Amendment, no person may “be deprived of life, liberty or property, without due process of law.” U.S. Const. amend. V. This guarantee has a procedural as well as a substantive component. See County of Sacramento v. Lewis, 523 U.S. 833, 856 (1998); Martin v. St. Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 511 (4th Cir. 2003). Procedural due process ensures that the government employs fair procedures when it seeks to deprive an individual of liberty or property. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976); D.B. v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016). But, the Fifth Amendment assures “more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719 (1997). Substantive due process “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state
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interest.” Reno v. Flores, 507 U.S. 292, 301-02 (1993) (emphasis in Reno); see, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
The fundamental liberties protected by the Due Process Clause not only include those enumerated in the Bill of Rights but also “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 2597 (2015); see, e.g., Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (recognizing fundamental right of married couples to use contraception). Accordingly, the Supreme Court “has long held the right to marry is protected by the Constitution,” and it has repeatedly “reiterated that the right to marry is fundamental under the Due Process Clause.” Obergefell, 135 S. Ct. at 2598; see, e.g., United States v. Windsor, 570 U.S. 744 (2013) (striking down the Defense of Marriage Act); Turner v. Safley, 482 U.S. 78 (1987) (prisoners cannot be denied the right to marry as a penological measure); Zablocki v. Redhail, 434 U.S. 374 (1978) (right to marry includes the right to marry a noncustodial parent behind on existing child support obligations); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause . . . .”); Loving v. Virginia, 388 U.S. 1 (1967) (invalidating ban on interracial marriage); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing the right “to marry” and “establish a home and bring up children”).
Indeed, the Court’s many descriptions of marriage are striking. The Court has called marriage “the most important relation in life . . . . without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U.S. 190, 205, 211 (1888); “fundamental to the very existence and survival of the race,” Skinner v. Okla. ex rel. Williamson, 316 U.S. 535, 541 (1942); “one of the ‘basic civil rights of man,’” Loving, 388 U.S. at 12 (citation omitted); “of fundamental
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importance for all individuals,” Zablocki, 434 U.S. at 384; and of “transcendent importance” that “promise[s] nobility and dignity to all persons, without regard to their station in life.” Obergefell, 135 S. Ct. at 2594.
Notably, the fundamental right of marriage does not end at “I do.” Rather, the Court’s recent marriage cases make clear that the right covers the decisions, benefits, and obligations adjunct to marriage. In Windsor, 570 U.S. 744, the Court struck down the Defense of Marriage Act (“DOMA”), which limited federal recognition of marriage to heterosexual unions. See id. at 775. Although DOMA did not prevent same-sex couples from marrying, the Court found that it violated the Fifth Amendment because it placed same-sex couples married under the laws of their state “in an unstable position of being in a second-tier marriage.” Id. at 772. Besides serving to “demean[] the couple” and “humiliate[] tens of thousands of children now being raised by samesex couples,” the Court also took stock of DOMA’s “visible” burdens, namely that it denied samesex married couples an array of federal benefits afforded to heterosexual married couples, including health care benefits, the Bankruptcy Code’s protections, the ability to file a joint tax return, and eligibility to be buried as a couple in veterans’ cemeteries. Id. at 773-774.
Further, in Obergefell, 135 S. Ct. 2584, in which the Court held that the Due Process Clause of the Fourteenth Amendment requires states to recognize same-sex marriages, the Court identified four reasons why marriage belongs in the pantheon of fundamental rights. Id. at 2599. First, marriage is a choice “inherent in the concept of individual autonomy” because “through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” Id. Along similar lines, marriage “is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Id. Third, marriage “safeguards children and families” by “giving recognition and legal structure to the[] parents’
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relationship” and “permanency and stability important to children’s best interests.” Id. at 2600. Fourth, marriage is a “keystone of our social order,” as it is the “basis for an expanding list of governmental rights, benefits, and responsibilities,” including “taxation.” Id. at 2601. These interests hardly dissipate at the altar; rather, they continue throughout the life of the marriage. The Due Process Clause thus covers not only the right to enter into a marriage but also the “constellation of benefits” that are inextricably intertwined with marriage. Id.
The case of Pavan v. Smith, ___ U.S. ___, 137 S. Ct. 2075 (2017) (per curiam), the Court’s most recent word on marriage, extinguishes any doubts that the fundamental right of marriage encompasses more than the decision to marry. In Pavan, two married same-sex couples challenged an Arkansas statute that required the name of the mother’s male spouse to appear on a child’s birth certificate but not the name of a female spouse. Id. at 2076-77. “Obergefell proscribes such disparate treatment,” the Court observed, because “a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’” Id. at 2078 (quoting Obergefell, 135 S. Ct. at 2605). Accordingly, the Court concluded that because Arkansas uses birth certificates “to give married parents a form of legal recognition,” it “may not, consistent with Obergefell, deny married same-sex couples that recognition.” Id. at 2078-79.
In addition to procedural and substantive due process, the Supreme Court has held that the Fifth Amendment implicitly guarantees the right to equal treatment enshrined in the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954); see also Windsor, 570 U.S. at 774 (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”). Thus, courts apply Fourteenth Amendment jurisprudence to equal protection claims brought against the federal government. See Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area
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is the same as that under the Fourteenth Amendment.”); accord Sessions v. Morales-Santana, ___ U.S. ___, 137 S. Ct. 1678, 1686 n.1 (2017).
The Fourteenth Amendment’s Equal Protection Clause states: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This guarantee “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prevail on an equal protection challenge, a plaintiff ‘“must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.’” Kolbe v. Hogan, 849 F.3d 114, 146 (4th Cir. 2017) (en banc) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). If that showing is made, the court “‘proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.’” Kolbe, 849 F.3d at 146 (quoting Morrison, 239 F.3d at 654).
Due process and equal protection work in “synergy” to protect the right of marriage. Obergefell, 135 S. Ct. at 2603. In Loving, 388 U.S. 1, the Court struck down Virginia’s ban on interracial marriage as racially discriminatory and a violation of substantive due process. Id. at 12. Likewise, in Zablocki, 434 U.S. 374, the Court relied on both equal protection and due process principles to invalidate a Wisconsin law barring fathers who were behind on child support obligations from marrying. See id. at 383-87. And, in Obergefell, 135 S. Ct. 2584, the Court found that the “interlocking nature of these constitutional safeguards” compelled the conclusion that “the right to marry is a fundamental right . . . and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Id. at 2605. Thus, although equal protection and due process are “independent principles,” id. at 2602, both inform the assessment of laws that touch on marriage.
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Under both the Due Process and Equal Protection Clauses, burdens on a fundamental right trigger strict scrutiny. See City of Cleburne, 473 U.S. at 440; Bostic, 760 F.33d at 377. A law survives strict scrutiny “only if [it is] suitably tailored to serve a compelling state interest.” City of Cleburne, 473 U.S. at 440. Stated otherwise, “a statutory classification [that] significantly interferes with the exercise of a fundamental right . . . cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388; see Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977). The proponent of the law bears the burden of satisfying strict scrutiny. See Bostic, 760 F.33d at 377.
In contrast, a burden or classification that does not impinge a fundamental right does not ordinarily raise concerns. See Armour v. City of Indianapolis, 566 U.S. 673, 680 (2012); FCC v. Beach Commc’ns, 508 U.S. 307, 314-15 (1993). Instead, such classifications receive only rational basis review. Beach Commc’ns, 508 U.S. at 313. Under the rational basis standard, the challenged statute need only be “‘rationally related to a legitimate state interest.’” Pulte Home Corp. v. Montgomery County, 909 F.3d 685, 693 (4th Cir. 2018) (citation omitted). A law clears this hurdle “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Beach Commc’ns, 508 U.S. at 313.
Rational basis review is a “paradigm of judicial restraint”; it “is not license for courts to judge the wisdom, fairness, or logic of the legislative choices.” Id. at 313-14. But, despite this deference, the scrutiny required by rational basis review “is not a toothless one.” Mathews v. Lucas, 427 U.S. 495, 510 (1976). To pass muster, the law “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 321 (1993). And, the Government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.
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Plaintiffs have plausibly alleged that § 6428(g)(1)(B) burdens their fundamental right of marriage and singles them out for disfavored treatment on the basis of marriage. The ability to file a federal joint tax return is a fixture in the “constellation of benefits” that the federal government “has linked to marriage.” Obergefell, 135 S. Ct. at 2601; see Windsor, 570 U.S. at 772-73 (recognizing joint tax filing as an “aspect of married and family life”). However, § 6428(g)(1)(B) deprives plaintiffs, who are U.S. citizens, of a tax credit because of their choice of a spouse, i.e., a person who lacks a SSN. To be sure, as mentioned above, plaintiffs are not wholly precluded from obtaining the impact payment; they can become eligible for the credit, notwithstanding their spouse’s status, if, for example, they file their 2020 tax return separately or join the military. But, these options are not without significant costs. For instance, filing jointly is generally preferable to filing separately because, among other reasons, joint filers are taxed according to a more favorable tax rate. See Camara v. Comm’r, 149 T.C. 317, 318 & n.7 (2017) (outlining the advantages of filing jointly). And, not everyone is in a position to join the military.
Moreover, plaintiffs have plausibly alleged that § 6428(g)(1)(B) deprives them of a tax benefit enjoyed by other married individuals on the basis of immigration status. This differentiation “demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify.” Windsor, 570 U.S. at 772 (internal citation omitted). And, denying plaintiffs the $500 benefit for each of their American children, pursuant to § 6428(g)(1)(B), “brings financial harm,” id. at 774, to those children solely because of their parents’ marital status. See R.V., 2020 WL 3402300, at *8 (finding American children of parents excluded from impact payment stated a viable equal protection claim against § 6428(g)). On the whole then, plaintiffs have plausibly alleged that § 6428(g)(1)(B) is similar to DOMA in that it “singles out a class of persons deemed by a State entitled to recognition” and “imposes a disability
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on the class by refusing to acknowledge a status the State finds to be dignified and proper.” Windsor, 570 U.S. at 775. Of course, “Obergefell proscribes such disparate treatment.” Pavan, 137 S. Ct. at 2078.
Accordingly, plaintiffs have adequately alleged that § 6428(g)(1)(B) imposes a discriminatory burden on the fundamental right of marriage. And, in that case, the burden shifts to the Government to demonstrate that the law passes constitutional muster.
The Government avers that § 6428(g)(1)(B) is subject to rational basis review because it is a tax provision that “distinguishes based on marital status.” ECF 32 at 7. This argument is misguided. Section 6428(g)(1)(B) discriminates between married taxpayers on the basis of their spouse’s immigration status, a characteristic that has no apparent relevance to the individual’s tax liability. In contrast, the cases on which the Government relies concern the tax rate structure set forth in 26 U.S.C. § 1, which varies based on income and whether the taxpayer is married or single. See Druker v. Comm’r, 697 F.2d 46 (2d Cir. 1982) (rejecting equal protection challenge to marriage penalty for joint tax filers); Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978) (same). Therefore, these cases seem inapt.
And, even taking the Government’s argument at face value, plaintiffs have plausibly alleged that § 6428(g)(1)(B) fails to clear the low bar of rational basis review. The Government proffers that § 6428(g)(1)(B) furthers Congress’s legitimate interest “of providing the credit only to individuals authorized to work in the United States, and not to ineligible individuals,” especially in light of Congress’s “desire to disburse aid efficiently.” ECF 32 at 10. But, it would appear that depriving plaintiffs of the credit is an unnecessary prophylactic given that § 6428(g)(1)(A) limits receipt of the impact payment to individuals with a SSN. Moreover, the Government’s proffered justification is undermined by § 6428(g)(3), which permits couples to receive an impact payment,
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despite a spouse’s lack of a SSN, if the other spouse serves in the armed forces. Thus, even assuming that rational basis applies, plaintiffs have stated a claim under the Fifth Amendment.
For these reasons, I shall deny defendants’ Motion as to plaintiffs’ causes of action arising under the Fifth Amendment.
2. First Amendment Plaintiffs’ second cause of action alleges that § 6428(g)(1)(B) violates the First Amendment’s guarantees of freedom of speech and association. ECF 31, ¶¶ 82-88. In plaintiffs’ view, § 6428(g)(1)(B) burdens their First Amendment rights “by denying them recovery payments because they express their lawful marriage and commitment to, and association with, their spouses in their most recently jointly-filed federal tax returns.” Id. ¶ 85. The Free Speech Clause of the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. This mandate “means that government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Barr v. Am. Assoc. of Political Consultants, Inc., ___ U.S. ___, 140 S. Ct. 2335, 2346 (2020) (quotation marks and citation omitted). However, the right to speech is “not absolute,” Virginia v. Black, 538 U.S. 343, 358 (2003), and the First Amendment does not protect “nonexpressive conduct” nor prohibit “restrictions directed at commerce or conduct [that] impos[e] incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 568 (2011). Although the First Amendment “literally forbids the abridgment only of ‘speech,’” the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989); see Willis v. Town of Marshall, 426 F.3d 251, 257 (4th Cir. 2005) (“It is well established that the First Amendment protects expressive conduct as well as pure speech.”). Thus, conduct that is “sufficiently imbued with elements of
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communication” also receives First Amendment protection. Spence v. Washington, 418 U.S. 405, 409 (1974); see Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986). Conduct-based laws implicate speech rights where the conduct itself communicates a message, see, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010); the conduct has an expressive element, see, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984); or where the conduct is intertwined with protected First Amendment activity. See, e.g., Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983).
As a necessary corollary to speech, the First Amendment also protects the right to associate with others. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-48 (2000); see Shelton v. Tucker, 364 U.S. 479, 485-86 (1960) (describing freedom to associate as “closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society”). In particular, this derivative right encompasses two categories of activity: first, the choice to “enter into and maintain certain intimate human relationships,” and, second, association “for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 61718 (1984). The former associations “receive[] protection as a fundamental element of personal liberty.” Id. at 618. In contrast, protection for the latter associations stems from the insight that an individual’s right to speak or petition the government would be worth little if “the freedom to engage in group effort toward those ends were not also guaranteed.” Id. at 622; see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 68 (2006).
Despite the First Amendment’s crystalline prohibition, implementing its guarantees is hardly straightforward. Because “the First Amendment protects speech along a spectrum,” Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019), laws burdening speech “receive different levels of
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judicial scrutiny depending on the type of regulation and the justifications and purposes underlying it.” Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014). To be sure, the First Amendment’s variegations are too numerous to count. But, assessing whether a law infringes on the First Amendment proceeds along a familiar path.
“The threshold question” in addressing any First Amendment challenge is “‘whether any protected First Amendment right is involved.’” Billups v. City of Charleston, 961 F.3d 673, 682 (4th Cir. 2020) (quoting Willis v. Town of Marshall, 426 F.3d 251, 257 (4th Cir. 2005)). “If no such right is involved,” then the “First Amendment inquiry ends.” Billups, 961 F.3d at 682; see Cornelius v. NAACP, 473 U.S. 788, 797 (1985). However, if “a protected First Amendment right is involved,” then the court must ascertain “whether the Governmental action in question infringes that right.” Billups, 961 F.3d at 682.
The Government maintains that § 6428(g)(1)(B) does not implicate the First Amendment, asserting that filing a joint tax return is neither speech nor expressive conduct. ECF 32 at 11. In any event, § 6428(g)(1)(B) does not burden plaintiffs’ speech or associational rights, the Government posits, because it does not prohibit plaintiffs from filing a joint tax return and the filing status of “married filing separately” is not inconsistent with marriage. See id.; ECF 41 at 5.
Plaintiffs counter that the “First Amendment protects speech on tax forms” and charge the Government with misconstruing the case law on this subject. ECF 36 at 10-11. Further, plaintiffs contend that filing a joint tax return constitutes expressive conduct because it conveys a commitment to their spouses and serves as a symbol of marriage. Id. at 11-12 (citing ECF 31, ¶¶ 84-85). Taking a different tack, plaintiffs also argue that they have plausibly alleged that § 6428(g)(1)(B) violates their right of intimate association by denying them a tax credit because they are married to individuals who lack legal immigration status. Id. at 12.
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It is far from clear that the notation of a taxpayer’s filing status on a tax return constitutes either speech or expressive conduct. On the one hand, “the creation and dissemination of information are speech within the meaning of the First Amendment.” Sorrell, 564 U.S. at 568; see Bartnicki v. Vopper, 532 U.S. 514, 527 (2001). Applying this reasoning, the Supreme Court has applied the First Amendment to pharmacy records, Sorrell, 564 U.S. at 570; beer labels, Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995); and credit reports. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) (plurality opinion). At first blush, a tax return is merely an arrangement of information, much like a pharmacy record or nutrition label.
But, another line of cases concerning 26 U.S.C. § 6702, which imposes a $5,000 penalty on an individual who files a “frivolous” tax return, cuts the other way. Courts are in agreement that § 6702 does not violate the First Amendment because, among other reasons, it sanctions conduct—noncompliance with federal tax law—not the taxpayer’s expression of any particular view. See, e.g., Buck v. United States, 967 F.2d 1060, 1062 (5th Cir. 1992); Hettig v. United States, 845 F.2d 794, 795 (8th Cir. 1988) (per curiam); Bradley v. United States, 817 F.2d 1400, 1405-06 (9th Cir. 1987); McKee v. United States, 781 F.2d 1043, 1047 (4th Cir. 1986); Collett v. United States, 781 F.2d 53, 55 (6th Cir. 1985); Welch v. United States, 750 F.2d 1101, 1108-11 (1st Cir. 1985); Kahn v. United States, 753 F.2d 1208, 1216-17 (3d Cir. 1985). Read broadly, these cases support the Government’s view that filing a tax return is merely conduct—the transmission of a taxpayer’s income—that is part and parcel of tax collection. But see United States v. Rowlee, 899 F.2d 1275, 1279 (2d Cir. 1990) (remarking that although every court of appeals has concluded that false tax returns do not garner First Amendment protection, “they do not all [employ] the same line of reasoning”).
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Plaintiffs’ argument that their tax returns are expressive conduct is an even steeper hill to climb. The First Amendment distinguishes between “protected expression” and “nonexpressive conduct,” Sorrell, 564 U.S. at 567, because “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.” Arcara, 478 U.S. at 706; see also United States v. O’Brien, 391 U.S. 367, 376 (1968) (deriding the “view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea”). Indeed, “[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
The question, then, is whether conduct is “sufficiently imbued with elements of communication” so as to be symbolic speech entitled to First Amendment protection. Spence, 418 U.S. at 409. To determine whether conduct is sufficiently expressive, courts consider both the intent of the speaker and the perception of the audience. See Clark, 468 U.S. at 294; see Texas, 491 U.S. at 404. The speaker must demonstrate an “intent to convey a particularized message,” and “the likelihood [must be] great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 410-11; see Clark, 468 U.S. at 294 (the conduct must be “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative”).10 Well-known examples of symbolic speech include marching in a parade,
10 In Hurley, 515 U.S. 557, the Supreme Court appears to have modified the first prong of the test as articulated in Spence, 418 U.S. 405. In Hurley, the Court opined that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” The courts of appeals are divided as to how best to apply Spence in light of Hurley. Compare Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 n.6 (2d Cir.
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Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569-70 (1995); nude dancing, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566 (1991); burning the American flag, Texas, 491 U.S. at 405-06; and wearing a black armband. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-506 (1969).
Proceeding on these principles, it is doubtful that selecting the status of “married filing jointly” on a tax return is expressive conduct. To be sure, plaintiffs claim that they believe that filing a joint tax return is “an expression of their marriages and the unity of their families.” ECF 31, ¶ 61. But, plaintiffs have not plausibly alleged that their intended message is likely to be perceived by the IRS.
When filing a federal tax return, taxpayers must choose among five filing statuses: unmarried, head of household, married filing jointly, married filing separately, or widow. See 26 U.S.C. § 1(a)-(d). Although the taxpayer may have some choice in selecting a filing status, the designation simply reflects the filer’s marital status. And, whether a filer is “married” is not a matter of personal view; the term is defined by the Internal Revenue Code and the IRS’s implementing regulations. See 26 U.S.C. § 2 (“Definitions and special rules”); id. § 7703 (“Determination of marital status”); 26 C.F.R. § 301.7701-18 (defining spouse and marriage). Consequently, a married individual cannot file a tax return as unmarried just as a widower cannot file as married. Filing a joint tax return therefore does not espouse a view of marriage so much as it identifies whether or not the filer is married.
2004) (reading Hurley to leave Spence intact), with Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 160 (3d Cir. 2002) (concluding that Hurley eliminated the particularized message requirement).
To my knowledge, the Fourth Circuit has not addressed this issue. However, I need not decide who has the better reading of the precedent because I conclude that even if a tax return is expressive conduct, § 6428(g)(1)(B) does not burden plaintiffs’ speech.
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This is especially true given that a tax return, and hence a taxpayer’s filing status, is ordinarily viewed only by the IRS. 26 U.S.C. § 6103(a); see Spence, 418 U.S. at 410 (noting that the reasonable person prong is context-specific). To the IRS, a taxpayer’s filing status is relevant only insofar as it determines the individual’s tax liability. See 26 U.S.C. § 1(a)-(d). Indeed, the Amended Complaint is devoid of any allegations that the message that plaintiffs divine from filing a joint return tax is one that a reasonable observer would perceive, no less the IRS.
Ultimately, however, I need not decide whether a truthful tax return falls within the First Amendment’s ambit because even assuming, arguendo, that it does, plaintiffs have not plausibly alleged that § 6428(g)(1)(B) burdens their speech rights. First, § 6428(g)(1)(B) does not penalize plaintiffs for expressing their views on marriage. Rather, it bars plaintiffs from receiving an impact payment based on conduct, specifically marrying and filing a joint tax return with an individual lacking legal status. Although such discrimination may violate the Fifth Amendment, it does not implicate speech. Second, § 6428(g)(1)(B) does not impinge on plaintiffs’ ability to convey their beliefs concerning marriage because filing a tax return as “married filing separately” is not inconsistent with proclaiming oneself married. Thus, there is no communicative difference between filing “married filing separately” and “married filing jointly.” For these reasons, plaintiffs have not plausibly alleged that § 6428(g)(1)(B) violates their right to freedom of speech.
However, in my view, the Amended Complaint states a claim for violation of plaintiffs’ associational rights. As noted, freedom of association protects the right “to enter into and maintain certain intimate human relationships.” U.S. Jaycees, 468 U.S. at 617. Marriage, the most intimate human relationship, is indisputably an intimate association for the purposes of the First Amendment. Bd. Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 548 (1987) (recognizing marriage as an “intimate relationship[] . . . accorded constitutional protection”); see Obergefell,
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135 S. Ct. at 2589 (recognizing marriage as a “two-person union unlike any other in its importance to the committed individuals”); see id. at 2598 (describing marriage as an “intimate bond”); Griswold, 381 U.S. at 501 (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”); see generally Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624 (1980) (contending that freedom of intimate association draws on the First Amendment, equal protection, and substantive due process).
A law that burdens associational rights triggers strict scrutiny only if it is “direct and substantial,” Lyng v. Int’l Union, 485 U.S. 360, 367 (1988), or “significant.” Rotary Club, 481 U.S. at 548; see Kraham v. Lippman, 478 F.3d 502, 506 (2d Cir. 2007) (Sotomayor, J.). An interference is substantial if, for example it “impose[s] penalties or withhold[s] benefits from individuals because of their membership in a disfavored group, . . . attempt[s] to require disclosure of the fact of membership in a group seeking anonymity, . . . [or] tr[ies] to interfere with the internal organization or affairs of the group.” U.S. Jaycees, 468 U.S. at 609. As discussed above, plaintiffs have alleged plausibly that § 6428(g)(1)(B) is subject to strict scrutiny because it denies an impact payment to eligible taxpayers such as themselves on the basis of their marital status. Therefore, for the same reasons that plaintiffs have stated a Fifth Amendment claim, they have also alleged a viable violation of their First Amendment right to intimate association.
Accordingly, I shall deny the Motion as to plaintiffs’ First Amendment cause of action. IV. Conclusion
For the aforementioned reasons, I shall deny the Motion (ECF 8), without prejudice. An Order follows, consistent with this Memorandum Opinion.

Date: August 5, 2020

/s/ Ellen L. Hollander United States District Judge
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June 5, 2020
The Honorable Ellen L. Hollander United States District Court for the District of Maryland 101 W. Lombard St., Chambers 5B Baltimore, MD 21201
RE: Amador, et al. v. Mnuchin, et. al. 1:20-cv-01102-ELH
Dear Judge Hollander: Pursuant to the Court’s May 14, 2020 order, Dkt. 30, Plaintiffs

Los Angeles Regional Office 634 S. Spring Street, 11th Fl. Los Angeles, CA 90014 Tel: 213.629.2512 Fax: 213.629.0266

Ivania Amador, et al., submit this letter in response to the United States letter setting forth grounds for dismissing plaintiffs’ suit under Fed. R .Civ. P. 12(b).

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MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
/s /Nina Perales Nina Perales (Tex. Bar No. 24005046)*

Advancing Latino Civil Rights for over 40 Years www.maldef.org

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Fátima Menéndez (Tex. Bar No. 24090260)* Samantha Serna (Tex. Bar No. 24090888)* 110 Broadway, Suite 300 San Antonio, TX 7820 Telephone: 210.224.5476 Facsimile: 210.224.5382 nperales@maldef.org
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Defendants concede that the challenged provisions of the CARES Act exclude Plaintiffs from eligibility for recovery payments because Plaintiffs are married to, and file their taxes jointly with, spouses who lack a social security number (“SSN”). Dkt. 32 at 1–2. Plaintiffs properly alleged that this exclusionary policy violates their constitutional rights. 1. This Court Has Subject Matter Jurisdiction over Plaintiffs’ Claims.
Defendants’ argument that this Court lacks subject matter jurisdiction because Plaintiffs must proceed through refund claims under 26 U.S.C. § 7422 misunderstands the nature of Plaintiffs’ suit. Plaintiffs do not seek refunds; rather, they ask for declaratory and injunctive relief that invalidates 26 U.S.C. § 6428(g)(1)(B) as unconstitutional. See Dkt. 31 at 20. This Court has subject matter jurisdiction over those claims: 5 U.S.C. § 702 provides “a broad waiver of sovereign immunity for all nonmonetary claims against federal agencies and their officers.” Fuller-Deets v. Nat’l Insts. of Health, No. GJH-18-3175, 2020 WL 230894, at *6 (D. Md. Jan. 14, 2020) (citing cases from Third, Fourth, Ninth, and D.C. Circuits); e.g., Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006); see 5 U.S.C. § 702. Defendants do not dispute that, as this suit seeks equitable relief from federal agencies and officers, see Dkt. 31 at 5–6, 20, this waiver applies unless some other statute “forbids the relief which is sought” by Plaintiffs. Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012) (quoting 5 U.S.C. § 702); see Dkt. 32 at 3. The sole dispute, then, concerns whether 26 U.S.C. § 7422, the only statute that Defendants cite as potentially foreclosing Plaintiffs’ suit, applies.
Section 7422 does not govern this case because Plaintiffs do not seek tax refunds. The provision covers only suits “for the recovery of” taxes, penalties, or sums “assessed or collected.” 26 U.S.C. § 7422(a) (emphasis added); see also United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 7 (2008) (emphasizing importance of following § 7422’s language
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closely). Courts—including the Fourth Circuit—have taken this language at face value, holding that “[§] 7422(a) does not allow for prospective relief” and does not apply to “claims for declaratory and injunctive relief”; instead, § 7422 governs only requests for “monetary relief.” King v. Burwell, 759 F.3d 358, 366–67 (4th Cir. 2014), aff’d, 135 S. Ct. 2480 (2015); accord Cohen v. United States, 650 F.3d 717, 731–32 (D.C. Cir. 2011) (en banc) (§ 7422 did not foreclose suit challenging IRS procedures because “§ 7422(a) would not provide Appellants the equitable relief they seek.”); cf. Randall v. United States, 95 F.3d 339, 347 (4th Cir. 1996) (emphasizing that “[p]laintiff’s claim for injunctive relief [was] the essence of his complaint”). In Burwell, the Fourth Circuit concluded that § 7422 was inapplicable to a challenge to an IRS rule that affected the plaintiffs’ tax liability because the suit sought only equitable relief, not a monetary refund. See 759 F.3d at 366–67. Plaintiffs’ claims are similar here: Plaintiffs challenge the statute’s constitutionality and seek equitable relief, rather than any monetary remedy.1 See Dkt. 31 at 20. “Even if [Plaintiffs] are entirely successful,” Cohen, 650 F.3d at 731, no payments would issue without subsequent administrative process by Defendants.
The cases cited by Defendants underscore the principle that § 7422’s applicability turns on the remedy sought by the plaintiffs. Defendants cite no case requiring plaintiffs who seek only declaratory and injunctive relief to file an action under § 7422: rather, each cited decision emphasizes that its respective plaintiffs sought monetary relief. E.g., Clintwood, 553 U.S. at 4.
The purpose of § 7422 also shows the provision’s inapplicability to Plaintiffs’ claims. In requiring refund-seekers first to file an administrative complaint, Congress aimed to “‘insure an
1 In fact, plaintiffs could not bring this action through § 7422 refund claims. A refund claim must “set forth in detail” the exact grounds upon which the refund is sought. 26 C.F.R. § 301.6402-2(b)(1); see also United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272 (1931) (requiring notice of the amount sought). Because Plaintiffs do not seek refunds, they do not set out the monetary amounts sought, and even if Plaintiffs prevail, Defendant IRS would calculate the specific amounts, if any, owed to Plaintiffs based on the information in their tax returns.
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orderly administration of the revenue,’ to provide that refund claims are made promptly, and to allow the IRS to . . . correct[] conceded errors.” Clintwood, 553 U.S. at 11 (quoting Felt & Tarrant Mfg. Co., 283 U.S. at 272). Application of § 7422 in the instant case serves none of those objectives. Forcing Plaintiffs to bring identical constitutional claims one by one will not create a more “orderly” system, but a more piecemeal one. Applying § 7422 is unnecessary for encouraging prompt claims here, where Plaintiffs have already done everything required of other eligible individuals seeking recovery payments. See Dkt. 31 ¶ 41. Moreover, administrative claims would be futile: § 6428(g)(1)(B) binds Defendants in any administrative proceeding, giving the IRS no opportunity “to . . . correct[] conceded errors.” Clintwood, 553 U.S. at 11. 2. Plaintiffs Have Standing to Bring Their Claims.
“[W]hen standing is challenged on the pleadings, [the court] accept[s] as true all material allegations of the complaint and construe[s] the complaint in favor of the complaining party.” Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 240 (4th Cir. 2019) (internal quotation omitted). Although Defendants argue that Plaintiffs have suffered no injury, Plaintiffs’ complaint establishes at least three distinct injuries sufficient to confer standing.
First, despite Defendants’ argument to the contrary, the inevitable denials of any attempts Plaintiffs ultimately make to claim CARES Act credits on their 2020 tax returns create an injury in fact that gives Plaintiffs standing to sue. An “imminent” injury suffices to confer standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Where future government action will “inevitabl[y]” produce some harm, the party that will experience the injury need not wait for the action to occur before filing suit. Taubman Realty Grp. Ltd. P’ship v. Mineta, 320 F.3d 475, 481 n.3 (4th Cir. 2003); see, e.g., Curtis, 915 F.3d at 241 (requiring only “realistic danger” of injury (internal quotation omitted));
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Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (recognizing injury in fact where inevitable errors by poll workers would harm political organizations’ members). Plaintiffs already have not received recovery payments because § 6428(g)(1)(B) makes them ineligible. Absent an injunction, § 6428(g)(1)(B) will inevitably require Defendants to deny any attempts by Plaintiffs to claim CARES Act credits. See Dkt. 31 ¶¶ 33–43 (alleging that § 6428(g)(1)(B) renders Plaintiffs categorically ineligible for recovery payments).2 Defendants concede as much in their motion. See Dkt. 32 at 5–6 (acknowledging that Plaintiffs are not eligible for recovery payments absent a change in their circumstances, such as one spouse’s becoming a member of the Armed Forces).
Second, the additional hurdles that § 6428(g)(1)(B) forces Plaintiffs, but not other eligible individuals, to overcome in order to access recovery payments also create an injury in fact. “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, . . . the denial of equal treatment” constitutes an injury in fact. Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993); e.g., Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014); Stone v. Trump, 400 F. Supp. 3d 317, 347 (D. Md. 2019) (holding that, even if waiver available, ban on transgender military enlistment and service injured plaintiffs because of unequal barriers to enlistment). Plaintiffs have properly alleged, and Defendants do not dispute, that they took all the steps required of other eligible individuals in order to receive recovery payments. See Dkt. 31 ¶¶ 33–43. Defendants further acknowledge that, in order to obtain recovery payments, Plaintiffs would need to make additional efforts—for instance, enlistment in 2 The certainty of denial distinguishes this case from those relied upon by Defendants, which emphasized that the IRS might decline to audit or seek penalties from the plaintiffs. See, e.g., Coon v. Wood, 160 F. Supp. 3d 246, 251 & n.2 (D.D.C. 2016). By contrast, the IRS would not have discretion to avoid injuring Plaintiffs: the challenged provision would categorically prohibit issuance of recovery payments. Plaintiffs thus face imminent, inevitable harm.
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the military—not required of other eligible individuals. See Dkt. 32 at 5–6 (citing 26 U.S.C. § 6428(g)). Plaintiffs thus must overcome greater barriers than other eligible individuals to access a benefit. These extra requirements create an injury in fact.
Third, even if Defendants were correct in suggesting that Plaintiffs may eventually receive recovery payments despite the requirements of § 6428(g)(1)(B)—and Defendants are not—the delay in receiving those payments caused by the challenged provision would still represent an injury in fact. Delay in processing a benefit application or in distributing a benefit constitutes a distinct injury in fact.3 See Covenant Media of S.C. v. City of N. Charleston, 493 F.3d 421, 428–29 (4th Cir. 2007); Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 457 (7th Cir. 2010) (Posner, J.). The economic devastation caused by the current pandemic and the resulting urgency of prompt recovery payments make this injury particularly severe. Plaintiffs have properly alleged that they took all actions ordinarily required to receive recovery payments and that, but for § 6428(g)(1)(B), Plaintiffs would already have received the funds. See Dkt. 31 ¶¶ 33–43. Defendants do not disagree. Dkt. 32 at 1–2. Yet, even if Plaintiffs eventually obtain payments without this Court’s intervention—which they will not—Plaintiffs’ complaint demonstrates that § 6428(g)(1)(B) will have delayed their receipt of recovery payments, depriving them of the time value of the payments and of the use of the funds during an economic crisis. See Dkt. 31 ¶¶ 27–30, 57–59 (describing Plaintiffs’ immediate financial need); see also 26 U.S.C. § 6428(f)(3)(A) (requiring that payments issue “as rapidly as possible”). Every moment of delay in payment issuance injures Plaintiffs. In light of the multiple injuries caused by the challenged provision and redressable by an injunction, Plaintiffs have standing to sue.
3 Moreover, delay in processing a benefit application still constitutes an injury in fact even where, as here, denial is certain. See Covenant Media of S.C. v. City of N. Charleston, 493 F.3d 421, 428–29 (4th Cir. 2007). This injury thus exists regardless of whether Defendants are correct in asserting that Plaintiffs may eventually receive payments.
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3. Plaintiffs Adequately Pleaded a Violation of Their Fifth Amendment Rights A Rule 12(b)(6) motion “does not . . . resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (internal quotations omitted). Plaintiffs’ claims need only state “plausible” causes of action to survive. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Defendants’ arguments for dismissal fail first because they rely on an unduly constrained interpretation of the right to marriage. The right to marriage extends beyond the act of entering into the marriage contract. The right to marriage is “fundamental” and protects an “enduring bond” through which “two persons together can find other freedoms, such as expression, intimacy, and spirituality.” Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015); see also id. at 2593 (observing that rights like marriage “allow persons . . . to define and express their identity”); United States v. Windsor, 570 U.S. 744, 769 (2013) (invalidating federal law that singled out same-sex married couples for different treatment with the result that the plaintiff paid higher estate taxes) . Obergefell described “four principles and traditions” underlying the right, with its discussion of each one contemplating a longer-term liberty interest than the crabbed approach offered by Defendants. 135 S. Ct. at 2599. All of these factors establish marriage as a long-term relationship within and through which individuals maintain the fundamental right “to define and express their identit[ies].” Id. at 2593. Plaintiffs’ complaint adequately alleges that, by interfering with Plaintiffs’ protected ability to engage in this form of self-definition and selfexpression, § 6428(g)(1)(B) burdens their fundamental right to marriage.
Plaintiffs allege that § 6428(g)(1)(B) violates their substantive due process rights because it “threatens Plaintiffs’ freedom of choice in personal matters related to marriage and family, including the sanctity of Plaintiffs' interest in defining their families though personal choice.”
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Dkt. 31 ¶ 78. Plaintiffs further allege that § 6428(g)(1)(B) violates their equal protection rights because it burdens “Plaintiffs’ fundamental right to marriage in a way that is incompatible with requirements of equality.” Dkt. 31 ¶ 91. Plaintiffs have thus adequately pleaded that Section 6428(g) of the CARES Act substantially interferes with the personal “liberty . . . to define and express their identity,” Obergefell, 135 S. Ct. at 2599–2601; United States v. Windsor, 570 U.S. 744, 763 (2013) (observing that married couples “define themselves by their commitment to each other”). Because § 6428(g)(1)(B) burdens a fundamental right, it is subject to strict scrutiny. Bostic, 760 F.3d at 375; see Obergefell, 135 S. Ct. at 2599 (holding that right to marriage is “fundamental”).
Defendants’ argument that Plaintiffs challenge discrimination on the basis of marital status is a straw man; Plaintiffs challenge discrimination on the basis of whom they choose to marry, not discrimination based on whether they are married or unmarried. See Dkt. 32 at 6 (“[T]he CARES Act distinguishes based on marital status.”). As a result, the cases on which Defendants rely are inapposite. See, e.g., Califano v. Jobst, 434 U.S. 47, 54 (1977) (upholding federal statute that generally terminated an individual’s benefits upon marriage); Druker v. Comm'r, 697 F.2d 46 (2d Cir. 1982) (upholding the assessment of a higher income tax rate for a married couple); Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978) (upholding tax provision under which married plaintiffs incurred greater personal income tax liabilities than they would if unmarried). Similarly, Zablocki v. Redhail, 434 U.S. 374 (1978), did not address discrimination against married persons on the basis of whom they chose to marry.4
4 Schinasi v. Comm’r, 53 T.C. 382 (1969), also does not control here. Schinasi upheld as reasonable a tax provision that prohibited nonresident aliens from filing joint tax returns because “nonresident aliens are taxed upon a different basis from residents, [and] it is impossible to compute an aggregate income for the purposes of a joint return if either spouse is a nonresident alien for any portion of the taxable year.” Id. at 384. Defendants here do not argue that Plaintiffs and their spouses are subject to different tax rates.
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Because it burdens the fundamental right to marriage, § 6428(g)(1)(B) is subject to strict scrutiny, which it cannot survive. Even if it were appropriate at the motion-to-dismiss stage to delve into Defendants’ proffered reasons for their discriminatory policy (and it is not), § 6428(g)(1)(B) cannot survive even rational basis scrutiny. Plaintiffs allege that Section 6428(g)(1)(B) “identif[ies] a subset of state-sanctioned marriages and make[s] them unequal[, and its] principal purpose is to impose inequality, not for other reasons like governmental efficiency.” Windsor, 570 U.S. at 772. Defendants’ asserted justification, that Congress enacted § 6428(g)(1)(B) to “further its policy goal of providing the credit only to individuals authorized to work in the United States, and not to ineligible individuals,” rings hollow. Dkt. 32 at 9. Defendants concede that “Congress generally precluded credit claims submitted by individuals without SSNs regardless of their filing status.” Dkt. 32 at 9; see also § 6428(g)(1) (limiting CARES Act tax credits to “eligible individual[s with a] valid identification number”) There is no need for the addition of § 6428(g)(1)(B) other than to penalize the spouse of an individual without a SSN. Thus, Defendants’ offer “no legitimate purpose [that] overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Windsor, 570 U.S. at 775.5 4. Plaintiffs Adequately Pleaded a Violation of Their First Amendment Rights
Contrary to Defendants’ argument, see Dkt. 32 at 9-10, the First Amendment protects speech on tax forms. “[T]he creation and dissemination of information are speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (striking down statute regulating use of pharmacy records as burdening protected expression). 5 Defendants suggest that Plaintiffs can avoid discrimination under § 6428(g)(1)(B) by filing “separately for any given year[.]” Dkt. 32 at 8. This argument ignores the fact that the burden of filing married and separately, both in terms of delay and paying a higher tax rate, is itself discriminatory. See e.g. Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001) (concluding that requiring separate versus automatic enrollment was a burden).
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Such speech “is not . . . unprotected by the First Amendment” even where it touches on “matters of purely private concern.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–60 (1985) (internal quotation omitted). As Plaintiffs properly allege, their joint filing of tax returns “express[es] their lawful marriage and commitment to, and association with, their spouses.” Dkt. 31 ¶ 85; see Obergefell, 135 S. Ct. at 2593 (including “express[ion of] identity” as core aspect of right to marriage).
The cases cited by Defendants do not contradict this point: those decisions acknowledged that tax returns could receive First Amendment protection, but held that the government had sufficiently strong interests to justify penalizing unlawful, frivolous returns. See Khan v. United States, 753 F.2d 1208, 1214–17 (3d Cir. 1985) (en banc) (acknowledging expressive value but finding that interest in “workable tax system” justified penalty for frivolous returns); Franklet v. United States, 578 F. Supp. 1552, 1556–57 (N.D. Cal. 1984) (same). In contrast, Plaintiffs do not challenge a penalty assessed against them for filing frivolous claims; rather, they challenge the government’s denial of a benefit based on their accurate, lawful, and protected speech. See Dkt. 31 ¶ 84–87.
Section 6428(g)(1)(B) also impermissibly burdens Plaintiffs’ freedom of association. Although Defendants argue that Plaintiffs have no constitutional right to “express their . . . association with their spouses in . . . jointly-filed federal tax returns,” Dkt. 32 at 10, the Supreme Court has observed that the many government benefits and programs that take marriage into account—including “taxation”—“offer[] symbolic recognition” of a married couple’s “union.” Obergefell, 135 S. Ct. at 2601. In choosing to file jointly, then, a couple accepts this “symbolic recognition,” expressing their association with and “commitment to their spouses.” Dkt. 31 ¶ 84; see also Obergefell, 135 S. Ct. at 2600 (describing marriage as an “intimate association”);
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Roberts v. U.S. Jaycees, 468 U.S. 609, 618–20 (1984) (recognizing that First Amendment protects freedom of intimate association). Filing jointly is therefore a protected expression of the couple’s association.
As Plaintiffs’ complaint properly alleges, see Dkt. 31 ¶¶ 84–87, such a penalty for protected speech and association unconstitutionally burdens Plaintiffs’ First Amendment rights. “[D]iscriminatory denial of a tax exemption for engaging in speech is a limitation on free speech.” Speiser v. Randall, 357 U.S. 513, 518 (1958) (striking down state law that withheld property tax exemption if property owners refused to sign loyalty oath); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[Government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests . . . [including] speech or associations.”). Plaintiffs thus adequately allege that conditioning the availability of recovery payments on their exercise of self-expression through speech and association in their tax filings violates their First Amendment rights.
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