UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:20-cv-00858-SVW-JEM

Jane Doe v. Donald J. Trump et al Assigned to: Judge Stephen V. Wilson Referred to: Magistrate Judge John E. McDermott Related Case: 2:20-cv-04129-SVW-JEM Case in other court: 9th CCA, 20-56019 Cause: 28:2201 Injunction

Date Filed: 05/06/2020 Date Terminated: 09/02/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Jane Doe individually and on behalf of others similarly situated

represented by Matthew John Matern Matern Law Group PC 1230 Rosecrans Avenue Suite 200 Manhattan Beach, CA 90266 310-531-1900 Fax: 310-531-1901 Email: mmatern@maternlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elisabeth A. Gavin Blaise and Nitschke PC 123 North Wacker Drive Suite 250 Chicago, IL 60606 312-448-6602 Fax: 312-803-1940 Email: lisag@blaisenitschkelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Guinevere M Moore Moore Tax Law Group LLC 150 North Wacker Drive Suite 1250 Chicago, IL 60606 312-549-9992 Fax: 312-549-9991 Email: guinevere.moore@mooretaxlawgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff John Doe

Joshua D Boxer Matern Law Group PC 1230 Rosecrans Avenue Suite 200 Manhattan Beach, CA 90266 310-531-1900 Fax: 310-531-1901 Email: jboxer@maternlawgroup.com ATTORNEY TO BE NOTICED
Lana Bajes Nassar Blaise and Nitschke, PC 123 N Wacker Drive Suite 250 Chicago, IL 60606 312-448-6602 Email: lnassar@blaisenitschkelaw.com ATTORNEY TO BE NOTICED
Thomas J. Nitschke Blaise and Nitschke PC 123 North Wacker Drive Suite 250 Chicago, IL 60606 312-448-6602 Fax: 312-803-1940 Email: tjnitschke@blaisenitschkelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Heather Lea Blaise Blaise and Nitschke PC 123 North Wacker Drive Suite 250 Chicago, IL 60606 312-448-6602 Fax: 312-803-1940 Email: hblaise@blaisenitschkelaw.com ATTORNEY TO BE NOTICED
represented by Elisabeth A. Gavin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Boxer (See above for address) ATTORNEY TO BE NOTICED

Lana Bajes Nassar (See above for address) ATTORNEY TO BE NOTICED
Matthew John Matern (See above for address) ATTORNEY TO BE NOTICED
Thomas J. Nitschke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Heather Lea Blaise (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J Trump in his individual and official capacity as President of the United States
Defendant Mitch McConnell in his individual and official capacity as a Senator and Sponsor of S.3548 CARES Act

represented by John Ellis AUSA - Office of US Attorney 300 North Los Angeles Street Room 7211 Los Angeles, CA 90012 213-894-2740 Fax: 213-894-0115 Email: john.ellis3@usdoj.gov ATTORNEY TO BE NOTICED
Melissa Briggs AUSA - Office of US Attorney Tax Division 300 North Los Angeles Street Room 7211 Los Angeles, CA 90012 213-894-6165 Fax: 213-894-0115 Email: melissa.briggs2@usdoj.gov ATTORNEY TO BE NOTICED
represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED

Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steven Mnuchin in his individual and official capacity as the Acting Secretary of the U.S. Department of Treasury

represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED
Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Defendant

Charles P. Rettig in his individual and official capacity as U.S. Commissioner of Internal Revenue

represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED
Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. Department of the Treasury

represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED

Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. Internal Revenue Service

represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED

Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Defendant United States of America

represented by John Ellis (See above for address) ATTORNEY TO BE NOTICED

Melissa Briggs (See above for address) ATTORNEY TO BE NOTICED

Amicus
Federation for American Immigration Reform

represented by Lawrence J Joseph Law Office of Lawrence J Joseph 1250 Connecticut Avenue NW Suite 200 Washington, DC 20036 202-355-9452 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Attorneys United for a Secure America Attorneys United for a Secure America

represented by Lorraine Glynis Woodwark Immigration Reform Law Institute 25 Massachussets Avenue NW Suite 335 Washington, DC 20001 202-591-0962 Fax: 202-464-3590 Email: lwoodwark@irli.org ATTORNEY TO BE NOTICED

Date Filed 05/06/2020 05/06/2020 05/06/2020
05/06/2020

# Docket Text

COMPLAINT Receipt No: ACACDC-26348694 - Fee: $400, filed

1

by Plaintiff JANE DOE. (Attorney Heather Lea Blaise added to

party JANE DOE(pty:pla))(Blaise, Heather) (Entered: 05/06/2020)

2 CIVIL COVER SHEET filed by Plaintiff JANE DOE. (Blaise, Heather) (Entered: 05/06/2020)

3 NOTICE of Interested Parties filed by Plaintiff JANE DOE, identifying Jane Doe, Donald J. Trump, Mitch McConnell, Steven Mnuchin, Charles Rettig, U.S. Department of the Treasury, U.S. Internal Revenue Service, and the United States of America. (Blaise, Heather) (Entered: 05/06/2020)

4 NOTICE OF ASSIGNMENT to District Judge David O. Carter and Magistrate Judge Douglas F. McCormick. (esa) (Entered: 05/06/2020)

05/06/2020 05/07/2020 05/07/2020 05/08/2020 05/08/2020 05/08/2020
05/08/2020
05/08/2020

5 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (esa) (Entered: 05/06/2020)
6 Request for Clerk to Issue Summons on Complaint (Attorney Civil
Case Opening) 1 filed by Plaintiff Jane Doe. (Attachments: # 1 McConnell, # 2 Mnuchin, # 3 Rettig, # 4 Dept. of the Treasury, # 5 IRS)(Blaise, Heather) (Entered: 05/07/2020)
7 INITIAL STANDING ORDER FOLLOWING ASSIGNMENT OF CIVIL CASE TO JUDGE CARTER. (kd) (Entered: 05/07/2020)
8 NOTICE of Related Case(s) filed by Defendant Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Related Case(s): 2:20-cv-04129-SVW-JEM (Ellis, John) (Entered: 05/08/2020)
9 EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act filed by Plaintiff Jane Doe. Ex Parte Application set for hearing on 5/11/2020 at 08:30 AM before Judge David O. Carter. (Blaise, Heather) (Entered: 05/08/2020)
10 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 19-03-Related Case- filed. Related Case No: 2:20-cv-04129-SVWJEM. Case transferred from Judge David O. Carter and Magistrate Judge Douglas F. McCormick to Judge Stephen V. Wilson and Magistrate Judge John E. McDermott for all further proceedings. The case number will now reflect the initials of the transferee Judge 8:20-cv-00858-SVW-JEM. Signed by Judge Stephen V. Wilson. (rrp) (Entered: 05/08/2020)
11 MEMORANDUM in Support of EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act 9 filed by Plaintiff Jane Doe. (Attachments: # 1 Memorandum In Support of Class Certification, # 2 Exhibit A - Affidavit of Jane Doe, # 3 Exhibit B Affidavit of Heather L. Blaise, # 4 Exhibit C - Affidavit of Vivian Khalaf, # 5 Exhibit D - IRS Instructions, # 6 Proposed Order Temporary Restraining Order or Preliminary Injunction, # 7 Proposed Order To Show Cause)(Blaise, Heather) (Entered: 05/08/2020)
12 IN CHAMBERS ORDER-TEXT ONLY ENTRY by Judge Stephen V. Wilson re: EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act filed by Plaintiff 9 - The Court, having accepted transfer of this case from Judge Carter, VACATES and takes off-calendar the hearing previously scheduled for

05/11/2020 at 8:30 a.m. The Court will reset a hearing date if necessary THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (pc) TEXT ONLY ENTRY (Entered: 05/08/2020)

05/08/2020

13 Notice of Appearance or Withdrawal of Counsel: for attorney Melissa Briggs counsel for Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Adding Melissa Briggs as counsel of record for United States of America for the reason indicated in the G-123 Notice. Filed by Defendant United States of America. (Attorney Melissa Briggs added to party Mitch McConnell(pty:dft), Attorney Melissa Briggs added to party Steven Mnuchin(pty:dft), Attorney Melissa Briggs added to party Charles P. Rettig(pty:dft), Attorney Melissa Briggs added to party Donald J Trump(pty:dft), Attorney Melissa Briggs added to party U.S. Department of the Treasury(pty:dft), Attorney Melissa Briggs added to party U.S. Internal Revenue Service(pty:dft), Attorney Melissa Briggs added to party United States of America(pty:dft))(Briggs, Melissa) (Entered: 05/08/2020)

05/11/2020 14

Notice of Appearance or Withdrawal of Counsel: for attorney John Ellis counsel for Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Adding John D. Ellis as counsel of record for United States of America for the reason indicated in the G-123 Notice. Filed by Defendant United States of America. (Attorney John Ellis added to party Mitch McConnell(pty:dft), Attorney John Ellis added to party Steven Mnuchin(pty:dft), Attorney John Ellis added to party Charles P. Rettig(pty:dft), Attorney John Ellis added to party Donald J Trump(pty:dft), Attorney John Ellis added to party U.S. Department of the Treasury(pty:dft), Attorney John Ellis added to party U.S. Internal Revenue Service(pty:dft), Attorney John Ellis added to party United States of America(pty:dft))(Ellis, John) (Entered: 05/11/2020)

05/11/2020

15 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant U.S. Internal Revenue Service. (mrgo) (Entered: 05/11/2020)

05/11/2020

16 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant U.S. Department of the Treasury. (mrgo) (Entered: 05/11/2020)

05/11/2020

17 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant Charles P. Rettig. (mrgo) (Entered: 05/11/2020)

05/11/2020

18 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant Steven Mnuchin. (mrgo) (Entered: 05/11/2020)

05/11/2020

19 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant Mitch McConnell. (mrgo) (Entered: 05/11/2020)

05/11/2020

20 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening) 1 as to defendant Donald J Trump. (mrgo) (Entered: 05/11/2020)

05/11/2020

21 IN CHAMBERS ORDER-TEXT ONLY ENTRY by Judge Stephen V. Wilson: The Court instructs the Government to file a response brief to Plaintiffs motion for a temporary restraining order, Dkt. 9, by 5/26/20. Plaintiff may file a reply brief no later than 6/2/20. Each brief should not exceed 25 pages in length. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (pc) TEXT ONLY ENTRY (Entered: 05/11/2020)

05/11/2020 22

OPPOSITION in Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act 9 filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Ellis, John) (Entered: 05/11/2020)

05/26/2020 23

OPPOSITION in Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act 9 filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Ellis, John) (Entered: 05/26/2020)

06/02/2020

24 Notice of Appearance or Withdrawal of Counsel: for attorney Matthew John Matern counsel for Plaintiff Jane Doe. Adding Matthew J. Matern as counsel of record for Jane Doe for the reason indicated in the G-123 Notice. Filed by Plaintiff Jane Doe.

06/02/2020 06/02/2020 06/03/2020 06/03/2020
06/08/2020 06/15/2020

(Attorney Matthew John Matern added to party Jane Doe(pty:pla))(Matern, Matthew) (Entered: 06/02/2020)
25 Notice of Appearance or Withdrawal of Counsel: for attorney Joshua D Boxer counsel for Plaintiff Jane Doe. Adding Joshua D. Boxer as counsel of record for Jane Doe for the reason indicated in the G-123 Notice. Filed by Plaintiff Jane Doe. (Attorney Joshua D Boxer added to party Jane Doe(pty:pla))(Boxer, Joshua) (Entered: 06/02/2020)
26 REPLY In Support of EX PARTE APPLICATION for Temporary Restraining Order as to CARES Act 9 filed by Plaintiff Jane Doe. (Attachments: # 1 Declaration of Joshua D. Boxer In Support Thereof, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Boxer, Joshua) (Entered: 06/02/2020)
27 APPLICATION of Non-Resident Attorney Guinevere M. Moore to Appear Pro Hac Vice on behalf of Plaintiff Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26665841) filed by Plaintiff Jane Doe. (Attachments: # 1 Proposed Order) (Boxer, Joshua) (Entered: 06/03/2020)
28 First AMENDED COMPLAINT against Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America amending Complaint (Attorney Civil Case
Opening) 1 , filed by Plaintiffs Jane Doe, John Doe (Attachments: # 1 Exhibit A)(Attorney Heather Lea Blaise added to party John Doe(pty:pla))(Blaise, Heather) (Entered: 06/03/2020)
29 MINUTES (IN CHAMBERS) by Judge Stephen V. Wilson: granting 27 Non-Resident Attorney Guinevere M. Moore APPLICATION to Appear Pro Hac Vice designating Joshua D. Boxer as local counsel. (yl) (Entered: 06/09/2020)
30 NOTICE OF MOTION AND MOTION to Dismiss Case ; Memorandum of Points and Authorities (RE: related document(s) 28 Amended Complaint) filed by Defendant Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Motion set for hearing on 7/13/2020 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 6.12.2020 Economic Impact Payment Information Center Internal Revenue Service, # 2 Proposed Order Granting Motion to Dismiss) (Ellis, John) (Entered: 06/15/2020)

06/19/2020 06/22/2020 06/22/2020 06/23/2020 06/23/2020 06/29/2020 06/29/2020
06/30/2020

31 APPLICATION of Non-Resident Attorney Lana B. Nassar to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC26885921) filed by Plaintiffs John Doe, Jane Doe. (Attachments: # 1 Proposed Order) (Attorney Joshua D Boxer added to party John Doe(pty:pla)) (Boxer, Joshua) (Entered: 06/19/2020)
32 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss Case ; Memorandum of Points and Authorities (RE: related document(s) 28 Amended Complaint) 30 filed by Plaintiffs John Doe, Jane Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Blaise, Heather) (Entered: 06/22/2020)
33 ORDER by Judge Stephen V. Wilson: granting 31 Non-Resident Attorney Lana B. Nassar APPLICATION to Appear Pro Hac Vice on behalf of plaintiffs Jane Doe and John Doe, designating Joshua D. Boxer as local counsel. (mrgo) (Entered: 06/23/2020)
34 NOTICE Notice of Supplemental Authority filed by Plaintiffs John Doe, Jane Doe. (Attachments: # 1 Exhibit A)(Blaise, Heather) (Entered: 06/23/2020)
35 NOTICE OF MOTION AND MOTION to Proceed Under Pseudonyms filed by Plaintiffs John Doe, Jane Doe. Motion set for hearing on 8/17/2020 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 Proposed Order Granting Plaintiffs Leave to Proceed Under Pseudonyms) (Blaise, Heather) (Entered: 06/23/2020)
36 REPLY filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America to Response in Opposition to Motion, 32 Reply to Opposition to Motion to Dismiss (ECF 32); Memorandum of Points and Authorities (Ellis, John) (Entered: 06/29/2020)
37 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by amicus Federation for American Immigration Reform. (Attachments: # 1 Exhibit Notice of Interested Parties, # 2 Proposed Order Proposed Order, # 3 Exhibit Amicus Brief) (Attorney Lawrence J Joseph added to party Federation for American Immigration Reform (pty:am)) (Joseph, Lawrence) (Entered: 06/29/2020)
38 OBJECTIONS to Notice (Other) 34 Objection to Plaintiffs' Notice of Supplemental Authority (ECF 34) filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump,

07/01/2020 07/02/2020 07/06/2020 07/06/2020 07/06/2020 07/08/2020

U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Ellis, John) (Entered: 06/30/2020)
39 NOTICE OF MOTION AND MOTION to File Amicus Brief In Support of the Defendant's Motion to Dismiss filed by Amicus Attorneys United for a Secure America. Motion set for hearing on 8/17/2020 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 Memorandum Brief in Support of Motion to File Amicus Brief, # 2 Exhibit Proposed Amicus Brief) (Attorney Lorraine Glynis Woodwark added to party Attorneys United for a Secure America(pty:am)) (Woodwark, Lorraine) (Entered: 07/01/2020)
40 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to File Amicus Brief 37 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (mrgo) (Entered: 07/02/2020)
41 NOTICE OF NON-OPPOSITION to NOTICE OF MOTION AND MOTION to File Amicus Brief 37 Non-Opposition to Federation for American Immigration Reform's Motion for Leave to File Memorandum of Law as Amicus Brief (ECF 37) filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Ellis, John) (Entered: 07/06/2020)
42 NOTICE OF NON-OPPOSITION to NOTICE OF MOTION AND MOTION to File Amicus Brief In Support of the Defendant's Motion to Dismiss 39 Non-Opposition to Attorneys United for a Secure America's Motion for Leave to File an Amicus Curiae Brief (ECF 39) filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Ellis, John) (Entered: 07/06/2020)
43 Opposition re: NOTICE OF MOTION AND MOTION to File Amicus Brief 37 filed by Plaintiffs John Doe, Jane Doe. (Boxer, Joshua) (Entered: 07/06/2020)
44 MINUTE ORDER (IN CHAMBERS) DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER 9 by

07/08/2020 07/13/2020 07/15/2020 07/15/2020

Judge Stephen V. Wilson re: 9 EX PARTE APPLICATION for TRO. Before the Court is an ex parte application for a temporary restraining order filed by a pseudonymous Jane Doe Plaintiff seeking declaratory and injunctive relief against the United States, the Internal Revenue Service ("IRS"), the U.S. Department of the Treasury, President Donald Trump, Senate Majority Leader Mitch McConnell, Treasury Secretary Steven Mnuchin, and IRS Commissioner Charles Rettig (collectively "the Government"). For the reasons articulated below, the Court DENIES the temporary restraining order. (See document for details) (mrgo) (Entered: 07/08/2020)
45 SCHEDULING NOTICE/IN CHAMBERS ORDER-TEXT ONLY ENTRY by Judge Stephen V. Wilson re: MOTION to File Amicus Brief filed by amicus Federation for American Immigration Reform 37 ; and MOTION to File Amicus Brief In Support of the Defendant's Motion to Dismiss filed by Amicus Attorneys United for a Secure America - The motions are denied. Any hearing previously set is vacated and off-calendar. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (pc) TEXT ONLY ENTRY (Entered: 07/08/2020)
50 MINUTES OF TELEPHONE HEARING re MOTION to Dismiss Case filed by Defendant 30 Hearing held before Judge Stephen V. Wilson. The motion is denied. The Court orders further briefing, and sets the following schedule: Government's Initial Filing - July 20, 2020; Plaintiff's Response - July 27, 2020; Government's Reply - July 30, 2020; Further Telephonic Hearing - August 3, 2020 at 1:30 p.m. Court Reporter: Maria Bustillos. (mrgo) (Entered: 07/16/2020)
46 APPLICATION of Non-Resident Attorney Thomas I. Nitschke to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC27220218) filed by Plaintiff John Doe, Jane Doe. (Attachments: # 1 Proposed Order On Application Of Non-Resident Attorney To Appear In A Specific Case Pro Hac Vice) (Attorney Matthew John Matern added to party John Doe(pty:pla)) (Matern, Matthew) (Entered: 07/15/2020)
47 STATEMENT in Support of Application of Non-Resident Attorney to Appear in a Specific Case Pro Hac Vice filed by Plaintiffs John Doe, Jane Doe re: APPLICATION of Non-Resident Attorney Thomas I. Nitschke to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt

No. ACACDC-27220218) 46 . (Matern, Matthew) (Entered: 07/15/2020)

07/15/2020

48 APPLICATION of Non-Resident Attorney Elisabeth A. Gavin to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC27221185) filed by Plaintiff John Doe, Jane Doe. (Attachments: # 1 Proposed Order On Application Of Non-Resident Attorney To Appear In A Specific Case Pro Hac Vice) (Matern, Matthew) (Entered: 07/15/2020)

07/15/2020

49 STATEMENT in Support of Application of Non-Resident Attorney to Appear in a Specific Case Pro Hac Vice filed by Plaintiffs John Doe, Jane Doe re: APPLICATION of Non-Resident Attorney Elisabeth A. Gavin to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27221185) 48 . (Matern, Matthew) (Entered: 07/15/2020)

07/16/2020

51 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Thomas I. Nitschke to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27220218) 46 , APPLICATION of Non-Resident Attorney Elisabeth A. Gavin to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27221185) 48 . The following error(s) was/were found: Local Rule 83-2.1.3.3(d) Attached Certificate of Good Standing not issued within 30 days prior to filing of the application. (Thrasher, Lupe) (Entered: 07/16/2020)

07/17/2020

52 TRANSCRIPT ORDER as to Plaintiffs John Doe, Jane Doe for Court Reporter. Court will contact Jessica Lesko at jessical@blaisenitschkelaw.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Blaise, Heather) (Entered: 07/17/2020)

07/17/2020

53 ORDER by Judge Stephen V. Wilson: granting 48 Non-Resident Attorney Elisabeth A. Gavin APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs John Doe, Jane Doe, designating Joshua D Boxer as local counsel. (et) (Entered: 07/17/2020)

07/20/2020 54

BRIEF filed by Defendant Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Initial Brief pursuant to July 13, 2020, Order (ECF

50) regarding Order on Motion to Dismiss Case,, Motion Hearing,, Set/Reset Deadlines/Hearings,, Set/Reset Motion Hearing and R&R Deadlines, 50 . (Ellis, John) (Entered: 07/20/2020)

07/23/2020

55 Notice of Electronic Filing re Brief (non-motion non-appeal), 54

, Order on Motion to Appear Pro Hac Vice 53 , Transcript Order Form (G-120), 52 , Notice of Deficiency in Electronically filed Pro Hac Vice Application (G-112C) - optional html form,, 51 e-mailed to Elisabeth A Gavin at lisag@glaisenitschkelaw.com bounced due to Clerical error email address was not updated. Primary e-mail address corrected. Notice of Electronic Filing resent addressed to lisag@blaisenitschkelaw.com. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 07/23/2020)

07/27/2020

56 OPPOSITION in Opposition re: NOTICE OF MOTION AND MOTION to Proceed Under Pseudonyms 35 Opposition to Plaintiff's Motion to Proceed Using Pseudonyms (ECF 35) filed by Defendants Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. (Attachments: # 1 Attachment A)(Ellis, John) (Entered: 07/27/2020)

07/27/2020 57

RESPONSE filed by Plaintiffs John Doe, Jane Doeto Memorandum in Support of Motion,, 11 , Brief (non-motion non-appeal), 54

(Attachments: # 1 Exhibit A)(Blaise, Heather) (Entered: 07/27/2020)

07/30/2020

58 BRIEF filed by Defendant Mitch McConnell, Steven Mnuchin, Charles P. Rettig, Donald J Trump, U.S. Department of the Treasury, U.S. Internal Revenue Service, United States of America. Reply to Response Brief (ECF 57); Memorandum of

Points and Authorities regarding Response 57 (Entered: 07/30/2020)

. (Ellis, John)

08/03/2020

59 IN CHAMBERS ORDER-TEXT ONLY ENTRY by Judge Stephen V. Wilson The further telephonic hearing scheduled for 08/03/2020 at 1:30 p.m. is vacated and off-calendar. The matter will stand submitted. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (pc) TEXT ONLY ENTRY (Entered: 08/03/2020)

08/03/2020

60 REPLY In Support of NOTICE OF MOTION AND MOTION to Proceed Under Pseudonyms 35 filed by Plaintiffs John Doe, Jane Doe. (Boxer, Joshua) (Entered: 08/03/2020)

08/04/2020

61 Request for Clerk to Issue Summons on Amended Complaint/Petition, 28 filed by Plaintiffs John Doe, Jane Doe. (Blaise, Heather) (Entered: 08/04/2020)

08/05/2020 62

PROOF OF SERVICE Executed Jane Doe, upon Plaintiff Steven Mnuchin served on 5/18/2020, answer due 6/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by unspecified means. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)

08/05/2020

63 PROOF OF SERVICE Executed by Plaintiff Jane Doe, upon Defendant U.S. Internal Revenue Service served on 5/18/2020, answer due 7/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by delivering a copy to Internal Revenue Service-Front Desk. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)

08/05/2020

64 PROOF OF SERVICE Executed by Plaintiff Jane Doe, upon Defendant Charles P. Rettig served on 5/18/2020, answer due 7/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by delivering a copy to U.S. Attorney's Office -Front Desk. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)

08/05/2020 08/05/2020 08/05/2020
08/06/2020 08/06/2020

65 PROOF OF SERVICE Executed by Plaintiff Jane Doe, upon Defendant Mitch McConnell served on 5/18/2020, answer due 7/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by delivering a copy to U.S. Attorney's Office -Front Desk. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)
66 PROOF OF SERVICE Executed by Plaintiff Jane Doe, upon Defendant Donald J Trump served on 5/18/2020, answer due 7/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by delivering a copy to U.S. Attorney's Office -Front Desk. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)
67 PROOF OF SERVICE Executed by Plaintiff Jane Doe, upon Defendant U.S. Department of the Treasury served on 5/18/2020, answer due 7/17/2020. Service of the Summons and Complaint were executed upon the United States Attorneys Office by unspecified means. Executed upon the Attorney Generals Office of the United States by unspecified means. Executed upon the officer agency or corporation by delivering a copy to U.S. Attorney's Office -Front Desk. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Matern, Matthew) (Entered: 08/05/2020)
68 ORDER by Judge Stephen V. Wilson: granting 46 Non-Resident Attorney Thomas I. Nitschke APPLICATION to Appear Pro Hac Vice on behalf of plaintiffs Jane Doe and John Doe, designating Joshua D. Boxer as local counsel. (mrgo) (Entered: 08/06/2020)
69 NOTICE Notice of Supplemental Authority filed by Plaintiffs John Doe, Jane Doe. (Attachments: # 1 Exhibit A)(Blaise, Heather) (Entered: 08/06/2020)

08/12/2020

70 IN CHAMBERS ORDER-TEXT ONLY ENTRY by Judge Stephen V. Wilson - The Court STAYS consideration of the pending Motion for Leave to Proceed Under Pseudonyms. Dkt. 35. The Court will reserve a ruling on that motion until after it has issued a final written ruling on the Governments motion to dismiss, in light of the supplemental briefing provided by the parties. See Dkt. 54; Dkt. 57; Dkt. 58. Accordingly, the 8/17/20 hearing is vacated and offcalendar. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (pc) TEXT ONLY ENTRY (Entered: 08/12/2020)

09/02/2020 71

MINUTE ORDER IN CHAMBERS GRANTING DEFENDANTS' MOTION TO DISMISS 30 by Judge Stephen V. Wilson re: NOTICE OF MOTION AND MOTION to Dismiss Case ; Memorandum of Points and Authorities (RE: related document(s) 28 Amended Complaint) 30 . For the foregoing reasons, the Court concludes that the Exclusion Provision survives rational basis review and Plaintiffs' FAC therefore fails to state a claim upon which relief can be granted. Accordingly, the Government's motion to dismiss is GRANTED. Plaintiffs' outstanding motion to proceed under pseudonyms is denied as moot. (See document for details). (Made JS-6. Case Terminated.) (mrgo) (Entered: 09/02/2020)

09/30/2020

72 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Plaintiffs John Doe, Jane Doe. Appeal of Minutes of In Chambers

Order/Directive - no proceeding held,,, Terminated Case,, 71 . (Appeal Fee - $505 Fee Paid, Receipt No. ACACDC-28321539.) (Boxer, Joshua) (Entered: 09/30/2020)

10/02/2020

73 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 2056019 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 72 as to plaintiff Jane Doe. (mrgo) (Entered: 10/05/2020)

10/20/2020

74 DESIGNATION of Record on Appeal by Plaintiffs John Doe, Jane Doe re 72 (Bennett, Corey) (Entered: 10/20/2020)

10/30/2020

75 TRANSCRIPT ORDER re: Court of Appeals case number 2056019, as to Plaintiffs John Doe, Jane Doe for Court Reporter. Court will contact Lupe Olarra at lolarra@maternlawgroup.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Bennett, Corey) (Entered: 10/30/2020)

01/12/2021

76 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 72 filed by John Doe, Jane

Doe. CCA # 20-56019. Appellant's motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b). This order served on the district court shall act as and for the mandate of this court. (mrgo) (Entered: 01/13/2021)

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 Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 1 of 27 Page ID #:1

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 JANE DOE, individually and on behalf of CASE NO: 8:20-cv-858 others similarly situated,
12

13

Plaintiff,

14

v.

CLASS ACTION COMPLAINT

15 DONALD J. TRUMP, in his individual

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

18 Senator and Sponsor of S. 3548 CARES Act; and STEVEN MNUCHIN, in his
19 individual and official capacity as the

20 Acting Secretary of the U.S. Department of Treasury; CHARLES RETTIG, in his
21 individual and official capacity as U.S.

22 Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE TREASURY;
23 the U.S. INTERNAL REVENUE

24 SERVICE; and the UNITED STATES OF

AMERICA,

25

Defendants.

26 NOW COMES Plaintiff, JANE DOE, (hereinafter “Doe” or “Plaintiff”),
27 individually and on behalf of the proposed class, by and through her attorneys, Blaise
28 & Nitschke, P.C., and submits her class action complaint against DONALD J.
- 1 -
CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 2 of 27 Page ID #:2

1 TRUMP, in his individual and official capacity as President of the United States;

2 MITCH MCCONNELL, in his individual and official capacity as United States

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

4 individual and official capacity as the Acting Secretary of the U.S. Department of

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

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

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

8 (hereinafter collectively referred to as “Defendants”). In furtherance whereof,

9 Plaintiff states as follows:

10

NATURE OF THE CASE

11

This is a class action based upon Defendants’ unconstitutional deprivation of

12 the rights, privileges, benefits and/or protections provided to United States Citizens,

13 via the enactment and subsequent enforcement of the S. 3548-Coronavirus Aid,

14 Relief, and Economic Security Act (hereinafter “CARES Act”), both enactment and

15 enforcement of which evidence the discriminatory purpose and intent of said Act.

16

Plaintiff is an individual who possesses a social security number and whose

17 spouse lacks a social security number. Pursuant to 26 U.S.C. § 6428 (g)(1)(B),

18 enacted as part of the CARES Act, Plaintiff receives no recovery payment under 26

19 U.S.C. § 6428 (a) even though she and her children are U.S. citizens.

20

Plaintiff seeks a declaration that 26 U.S.C. § 6428 (g)(1)(B), as enacted by

21 Section 2101 of the CARES Act, is unconstitutional. Plaintiff further seeks class-

22 wide relief enjoining enforcement of 26 U.S.C. § 6428 (g)(1)(B), as enacted by

23 Section 2101 of the CARES Act, as written and further requiring Defendants to treat

24 Plaintiff, and those similarly situated, the same as other married individuals.

25

PARTIES

26

1. Plaintiff JANE DOE is a U.S. citizen who at all times mentioned in this

27 Complaint resided in the Central District of California. Plaintiff has a social security

28 number and her spouse does not have a social security number.

- 2 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 3 of 27 Page ID #:3

1

2. That “Jane Doe” is not Plaintiff’s actual name, but rather is a fictitious

2 name for an actual person as herein described, in order to protect her actual identity,

3 which is protected under the Fifth Amendment and the facts alleged herein.

4

3. Defendant, DONALD J. TRUMP, in his individual and official capacity

5 as President of the United States, is the President of the United States who signed the

6 CARES Act into law on March 27, 2020.

7

4. Defendant, MITCH MCCONNELL, in his individual and official

8 capacity as United States Senator, is the Sponsor of S. 3548-CARES Act, and

9 introduced it in the United States Senate (“Senate”) on March 19, 2020.

10

5. Defendant, STEVEN MNUCHIN, in his individual and official capacity,

11 is the Acting Secretary of the U.S. Department of Treasury. In that capacity, among

12 other things, he oversees the collection of revenue, the preparation of plans for the

13 improvement and management of the revenue and the preparation and report of

14 estimates of the public revenue and public expenditures. As Secretary, Defendant

15 Mnuchin exercises full authority to administer and enforce the internal revenue laws

16 and has the power to create an agency to enforce these laws. As part of his duties,

17 Defendant Mnuchin oversees the issuance of recovery payments to eligible

18 individuals under the CARES Act.

19

6. Defendant, CHARLES RETTIG, in his individual and official capacity,

20 is the United States Commissioner of Internal Revenue. In that capacity, Defendant

21 Rettig administers the application of the internal revenue laws and tax conventions to

22 which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig reports to the

23 Secretary of the Treasury, Defendant Mnuchin. As part of his duties, Defendant

24 Rettig oversees the issuance of recovery payments to eligible individuals under the

25 CARES Act.

26

7. Defendant U.S. DEPARTMENT OF THE TREASURY is an agency of

27 the U.S. government. The U.S. Department of the Treasury operates and maintains

28 systems that are critical to the nation's financial infrastructure, such as the production

- 3 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 4 of 27 Page ID #:4

1 of coin and currency, the disbursement of payments to the American public, revenue

2 collection, and the borrowing of funds necessary to run the federal government.

3

8. Defendant U.S. INTERNAL REVENUE SERVICE is a bureau of the

4 U.S. Department of the Treasury organized to carry out the responsibilities of the

5 Secretary of the Treasury under section 7801 of the Internal Revenue Code. The

6 Internal Revenue Service was created based on the legislative grant of authority to the

7 Secretary of the Treasury to enforce the internal revenue laws. The IRS calculates and

8 sends recovery payments to those eligible under the CARES Act.

9

9. Defendant, United States of America, acted through its agencies U.S.

10 DEPARTMENT OF THE TREASURY and U.S. INTERNAL REVENUE SERVICE

11 with respect to this matter.

12

10. Defendants are each sued in their individual and official capacities and

13 are the persons, offices, and/or agencies most responsible for the conduct alleged

14 herein.

15

11. Each of the Defendants had actual and/or constructive knowledge of the

16 acts of the other Defendants as described herein, and ratified, approved, joined in, 17 acquiesced in, and/or authorized the acts of the other, and/or retained the benefits of

18 the said acts.

19

JURISDICTION AND VENUE

20

12. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331

21 and 1343 over Plaintiff’s causes of action arising under the United States Constitution

22 (the “Constitution”).

23

13. This Court may grant Plaintiff’s request for declaratory relief and

24 injunctive relief under 28 U.S.C. §§ 2201 and 2202.

25

14. Venue is appropriate in the United States District Court for the Central

26 District of California pursuant to 28 U.S.C. §1391(b) because 1) a substantial part of

27 the events giving rise to the claims alleged herein occurred in this judicial district,

28

- 4 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 5 of 27 Page ID #:5

1 and 2) Plaintiff Doe resides within this District and no real property is involved in

2 this action.

3

15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343,

4 which gives the district court original jurisdiction over civil rights claims.

5

16. The United States cannot assert sovereign immunity for this action for

6 declaratory and injunctive relief against its agencies, and the agencies’ officers,

7 pursuant to 5 U.S.C. § 702.

8

STATEMENT OF FACTS

9

17. On March 13, 2020, President Donald J. Trump declared the 2020

10 coronavirus global pandemic (“COVID-19”) a national emergency. Proclamation on

11 Declaring a National Emergency Concerning the Novel Coronavirus Disease

12 (COVID-19) Outbreak, WHITEHOUSE.GOV (March 13, 2020), https://www.

13 whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-

14 concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited April 30,

15 2020).

16

18. This civil rights action challenges the CARES Act on constitutional

17 grounds. The CARES Act denies tax-paying U.S. citizens their rights, privileges,

18 benefits and/or protections embodied in § 2101 of the CARES Act which, as part of

19 its provisions, amends Subchapter B of chapter 65 of subtitle F of the Internal

20 Revenue Code of 1986, by adding a new section 6428, entitled “2020 Recovery

21 Rebates For Individuals” (“Sec. 6428”). S. 3548, 116th Cong. (2020).

22

19. Sec. 6428 is codified at 26 U.S.C. § 6428.

23

20. The CARES Act was introduced in the Senate on March 19, 2020 by

24 Mitch McConnell (for himself, Mr. Alexander, Mr. Crapo, Mr. Grassley, Mr. Rubio,

25 Mr. Shelby, and Mr. Wicker). S. 3548, 116th Cong. (2020).

26

21. The CARES Act was signed into law by President Donald J. Trump on

27 March 27, 2020. Statement by the President, WHITEHOUSE.GOV (March 27, 2020)

28

- 5 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 6 of 27 Page ID #:6

1 https://www.whitehouse.gov/briefings-statements/statement-by-the-president-38/

2 (last visited Apr 24, 2020).

3

22. The CARES Act full title reads: “To provide emergency assistance and

4 health care response for individuals, families, and businesses affected by the 2020

5 coronavirus pandemic.” S. 3548, 116th Cong. (2020).

6

23. Sec. 6428 authorizes the Internal Revenue Service to disburse $1,200.00

7 to each “eligible individual" earning up to $75,000.00 in adjusted gross income who

8 have a Social Security number, and an additional $500.00 for each child under the

9 age of 17 (hereinafter “the Stimulus Check”). 26 U.S.C. § 6428.

10

24. Sec. 6428 authorizes the Internal Revenue Service to disburse $2,400.00

11 to “eligible individuals filing a joint return” when earning up to $150,000.00 in

12 adjusted gross income. 26 U.S.C. § 6428.

13

25. Sec. 6428(c) lessens these amounts for individuals making more than

14 $75,000.00 and married couples filing jointly who make more than $150,000.00. 26

15 U.S.C. § 6428(c)

16

26. Sec. 6428, through a combination of provisions, excludes otherwise

17 qualified individuals from receiving the CARES Act Stimulus Checks solely because

18 their spouses lack social security numbers.

19

27. The Stimulus Checks include Defendant Trump’s name. Defendant

20 Mnuchin admits that the inclusion of Defendant Trump’s name on the Stimulus

21 Checks was Defendant Mnuchin’s idea. Devan Cole, Mnuchin Says Putting Trump’s

22 Name on Coronavirus Stimulus Checks Was His Idea, CNN (April 20, 2020),

23 https://www.cnn.com/2020/04/19/politics/steven-mnuchin-trump-name-stimulus-

24 checks-cnntv/index.html (last visited May 1, 2020).

25

28. To be eligible to receive a payment, an individual:

26

● must be a U.S. citizen, permanent resident or qualifying resident alien;

27

● cannot be claimed as a dependent on someone else’s return;

28

- 6 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 7 of 27 Page ID #:7

1

● must have a Social Security number (“SSN”) that is valid for employment

2

(“valid SSN”)

3

o Exception: If either spouse is a member of the U.S. Armed Forces at any

4

time during the taxable year, then only one spouse needs to have a valid

5

SSN;

6

and

7

● must have an adjusted gross income below an amount based on his or her

8

filing status and the number of his or her qualifying children.

9 Economic Impact Payment Information Center, IRS.GOV (April 24, 2020)

10 https://www.irs.gov/coronavirus/economic-impact-payment-information-center (last

11 visited April 24, 2020).

12

29. Under Sec. 6428 (d), Plaintiff is defined as an “eligible individual”

13 because she is neither a “nonresident alien individual” nor a dependent child.

14

30. Plaintiff Jane Doe’s children are also defined as “qualifying” for the

15 Stimulus Checks under Sec. 6428 (a)(2) because the children are under the age of 17

16 and live in the United States. 26 U.S.C. § 6428 (c) (2020).

17

31. However, Section 6428 (g)(1)(B) also requires an eligible individual’s

18 spouse to have provided a “valid identification number” on the most recent tax return

19 filed jointly with the IRS.

20

32. Section 6428 (g)(2) (the “Exclusion Provision”) defines a “valid

21 identification number” for an adult as a social security number.

22

33. Secs. 6428(g)(1)(B) and (g)(2) operate together to require both spouses

23 filing jointly to have social security numbers in order for any member of the family,

24 including the qualifying children, to be eligible for the Stimulus Checks.

25

34. Any family that files a joint tax return where one of the spouses has a

26 Social Security number and one has an Individual Taxpayer Identification Number

27 (“ITIN”), which the Internal Revenue Service issues to workers who lack Social

28 Security numbers, cannot receive a Stimulus Check — unless one spouse is a member

- 7 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 8 of 27 Page ID #:8

1 of the U.S. Armed Forces. Jenny Jarvie, These U.S. Citizens Won’t Get Coronavirus

2 Stimulus Checks – Because Their Spouses Are Immigrants, LOS ANGELES TIMES

3 (April 20, 2020), https://www.latimes.com/world-nation/story/2020-04-20/u-s-

4 citizens-coronavirus-stimulus-checks-spouses-immigrant (last visited April 24, 2020).

5

35. There are 1.2 million Americans married to immigrants who do not hold

6 Social Security numbers. Profile of the Unauthorized Population: United States,

7 MIGRATION POLICY INSTITUTE, https://www.migrationpolicy.org/data/unauthorized-

8 immigrant-population/state/US (last visited May 2, 2020).

9

36. Of the 1.2 million Americans, those who file joint tax returns and are not

10 in the military are ineligible for a Stimulus Check and deprived of the right(s),

11 benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise

12 qualify.

13

37. Plaintiff is a U.S. citizen who earns less than $75,000.00 in adjusted

14 gross income, whose children are also U.S. citizens, and is excluded from the

15 government’s $2 trillion coronavirus financial relief package because she files her

16 taxes jointly with her spouse (hereinafter referred to collectively as a “Mixed-status

17 Family”), an immigrant who does not have a Social Security number.

18

38. Plaintiff is married to an immigrant who pays taxes and files tax returns

19 with an Individual Taxpayer Identification Number. The Mixed-status Family files

20 joint tax returns and neither are in the military.

21

39. On her most recent tax returns, Plaintiff provided her social security

22 number, which is required by Sec. 6428 (g)(1)(A) in order for an eligible individual

23 to receive a Stimulus Check. Plaintiff also provided her children’s social security

24 numbers, which is required by Sec. 6428 (g)(1)(C) in order for payments for

25 qualifying children to be included to receive a Stimulus Check. Plaintiff also

26 provided the ITIN of her spouse on the tax returns.

27

40. However, as a result of Sec. 6428 (g)(1)(B), although Plaintiff and her

28 children are U.S. citizens, and Plaintiff would otherwise have received a Stimulus

- 8 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 9 of 27 Page ID #:9

1 Check under Sec. 6428 (a), Plaintiff did not receive a Stimulus Check because her

2 spouse lacks a social security number.

3

41. But for her spouse lacking a social security number, Plaintiff Doe would

4 have received a Stimulus Check for herself and her children under the CARES Act.

5

42. Had Plaintiff not been married to an immigrant with an Individual

6 Taxpayer Identification Number, Plaintiff and her children would have otherwise

7 qualified for a Stimulus Check.

8

43. There is no mechanism by which Plaintiff can dispute the government’s

9 decision to deny her a Stimulus Check.

10

44. During the House of Representatives debate on the CARES Act,

11 Representative TJ Cox pointed out what he called “this bill’s glaring shortcomings”

12 which included the fact that the bill “punishes mixed-status households and denies

13 some American citizens benefits they deserve.” 166 Cong. Rec. H1841 (daily ed.

14 Mar. 27, 2020) (statement of Rep. Cox of CA).

15

45. The original Senate version of the CARES Act, S. 3548, required all

16 married joint filers to include social security numbers for both spouses. However, the

17 Senate created an exception for cases in which “at least 1 spouse was a member of the

18 Armed Forces of the United States at any time during the taxable year and at least 1

19 spouse [has a social security number].” Sec. 6428 (g)(3). The exception for military

20 Mixed-status Families appeared in the Senate’s final version of the CARES Act, H.R.

21 748, and was enacted into law.

22

46. Neither Plaintiff nor her spouse was a member of the Armed Forces of

23 the United States at any time during the taxable year.

24

47. Sec. 6428 (g)(3) demonstrates that Congress was aware that the Stimulus

25 Checks would be generally unavailable to qualified individuals who are married to

26 and jointly file their taxes with non-citizens who lack a social security number.

27

48. In the weeks following passage of the CARES Act, the U.S. economy

28 continued to contract because of the COVID-19 pandemic. Across the U.S., states

- 9 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 10 of 27 Page ID #:10

1 shut down schools and businesses and ordered residents to stay at home to slow the

2 spread of the coronavirus. See Which States Are Reopening and Which Are Still Shut

3 Down, THE NEW YORK TIMES (April 27, 2020) https://www.nytimes.com/interactive/

4 2020/us/states-reopen-map-coronavirus.html (last visited April 29, 2020).

5

49. On April 23, 2020, the U.S. Department of Labor reported that the

6 advance seasonally adjusted insured unemployment rate was 11% for the week

7 ending April 11. News Release, Unemployment Insurance Weekly Claims, U.S.

8 DEPARTMENT OF LABOR (April 23, 2020), https://www.dol.gov/ui/data.pdf (last

9 visited April 29, 2020). The number of initial jobless claims totaled 4.2 million in the

10 week ending April 18.

11

50. The U.S. is now the country with the highest number of reported

12 COVID-19 cases. Coronavirus Map: Tracking the Global Outbreak, THE NEW YORK

13 TIMES (April 27, 2020), https://www.nytimes.com/interactive/2020/world/

14 coronavirus-maps.html?action=click&pgtype=Article&state=default&module=styln-

15 coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu (last

16 visited April 29, 2020).

17

51. Federal law generally requires all wage earners to file tax returns and use

18 an identification number. I.R.C. § 1. Individuals apply for ITIN by submitting a W-7

19 form and a completed tax return to the IRS. I.R.C. § 6109. The W-7 form requires

20 applicants to prove their identity and foreign status with any of 13 acceptable

21 documents by the IRS, such as a passport or a birth certificate. Instructions for Form

22 W-7, INTERNAL REVENUE SERVICE (Sept. 2019), https://www.irs.gov/pub/irs-

23 pdf/iw7.pdf (last visited April 29, 2020).

24

52. The ITIN application process is not an immigration enforcement tool,

25 and the IRS is prohibited by law from sharing any taxpayer information with any

26 other governmental agencies. I.R.C. § 6103(a). An estimated 4.3 million adults file

27 taxes using an ITIN. How the Tax Rebate in the Senate’s Bill Compares to Other

28 Proposals, INSTITUTE ON TAXATION AND ECONOMIC POLICY (March 25, 2020),

- 10 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 11 of 27 Page ID #:11

1 https://itep.org/how-the-tax-rebate-in-the-senates-bill- compares-to-other-proposals/

2 (last visited April 29, 2020).

3

53. The IRS estimates ITIN tax filers pay over $9 billion in annual payroll

4 taxes. IRS Nationwide Tax Forum: Immigration and Taxation, INTERNAL REVENUE

5 SERVICE (2014), https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20

6 Taxation.pdf (last visited April 29, 2020).

7

54. The CARES Act and Defendants’ failure to provide Plaintiff her

8 Stimulus Check disparages Plaintiff’s choices and diminishes her personhood. By

9 denying Plaintiff and other Mixed-status Families their Stimulus Checks, the CARES

10 Act and Defendants force Plaintiff and her children to suffer the stigma of knowing

11 her family is adversely treated compared to other families. The CARES Act and

12 Defendants humiliate Plaintiff and the children of Mixed-status Families, including

13 hers, by treating them adversely as compared to other families.

14

55. In addition, requiring Mixed-status Families to file their tax returns as

15 married filing separately for the putative Class Member to be entitled to the Stimulus

16 Check has the consequence of higher tax rate and reduction in credits and deductions

17 that would otherwise be available if the putative Class Member filed taxes under the

18 married filing jointly status. See Corbin Blackwell, CFP, Married Filing Separately:

19 Marriage Tax Benefit or Penalty?, BETTERMENT (January 25, 2019),

20 https://www.betterment.com/resources/married-filing-separately (last visited April

21 30, 2020); see also Andrea Woroch, Married Couples: Is It Better to File Taxes

22 Jointly or Separately?, U.S. NEWS MONEY (January 6, 2020), https://money.usnews.

23 com/money/personal-finance/taxes/articles/married-couples-is-it-better-to-file-taxes-

24 jointly-or-separately (last visited April 30, 2020).

25

56. Further, requiring Mixed-status Families to file their tax returns as

26 married filing separately means that Mixed-status Families will be severely

27 disadvantaged in proving the legitimacy of their marriage for the purposes of lawful

28 immigration. See Blackwell, supra; see also Halina Schiffman-Shilo, Opinion: The

- 11 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 12 of 27 Page ID #:12

1 Cruelties of the COVID-19 Stimulus Bill, CITYLIMITS.ORG (April 3, 2020),

2 https://citylimits.org/2020/04/03/opinion-the-cruelties-of-the-covid-19-stimulus-bill/

3 (last visited May 4, 2020).

4

CLASS ACTION ALLEGATIONS

5

57. Plaintiff brings this claim individually and on behalf of the following

6 putative class (the “Class”), pursuant to Federal Rule of Civil Procedure 23:

7

All United States Citizens married to immigrants that file

8

joint taxes wherein the immigrant-spouses file tax returns

9

using an Individual Taxpayer Identification Number who

10

would have otherwise qualified for the Stimulus Check.

11 Plaintiff reserves the right to amend the Class and any potential subclass definitions if

12 further investigation and discovery indicate that the Class and potential subclass

13 definitions should be narrowed, expanded, or otherwise modified. Excluded from the

14 Class and potential subclass are any judge, justice, or judicial officer presiding over

15 this matter and the members of their immediate families and judicial staff.

16

58. The Class is so numerous that joinder of all individual members

17 (individually, “Class Member” or collectively, “Class Members”) in one action would

18 be impracticable, given the expected Class size and modest value of individual

19 claims.

20

59. There are more than 1.2 million Americans that are married to

21 immigrants who lack Social Security numbers.

22

60. Of the 1.2 million Americans, those who file joint tax returns and are

23 not in the military would meet the above-referenced Class definition.

24

61. The Migration Policy Institute reported that 4.1 million U.S. Citizen

25 children live with at least one undocumented immigrant parent. U.S. Randy Capps,

26 Michael Fix, and Jie Zong, A Profile of U.S. Children with Unauthorized Immigrant 27 Parents, MIGRATION POLICY INSTITUTE (January 2016), https://www.migrationpolicy. 28

- 12 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 13 of 27 Page ID #:13

1 org/research/profile-us-children-unauthorized-immigrant-parents (last visited April

2 29, 2020).

3

62. Class Members can be identified through Defendants’ records.

4

63. Plaintiff’s claims are typical of the claims of the Class Members, as they

5 are based on the same legal theory and arise from the same unlawful conduct.

6

64. There are common questions of law and fact affecting Class Members,

7 which common questions predominate over questions that may affect individual

8 members. These common questions include, but are not limited to:

9

a. Whether and to what extent Defendants have deprived Class

10

Members of their First Amendment Rights; Equal Protection and Due

11

Process under the Law;

12

b. Whether and to what extent Defendants have deprived Class

13

Members of their property interest;

14

c. Whether and to what extent Defendants have deprived Class

15

Members of their rights, privileges, and/or immunities secured by the

16

Constitution of the United States;

17

d. Whether Section 2101 of the CARES Act, which enacted 26 U.S.C. §

18

6428 (g)(1)(B), violates the U.S. Constitution by discriminating

19

against individuals with social security numbers who are married to

20

individuals who lack social security numbers;

21

e. Whether Plaintiff and the Class suffered harm as a result of

22

Defendants’ unlawful policies and/or practices and enforcement of 26

23

U.S.C. § 6428 (g)(1)(B), as enacted by the CARES Act;

24

f. Whether Class Members are entitled to actual damages, statutory

25

damages, and/or punitive damages as a result of Defendants’

26

wrongful conduct;

27

28

- 13 CLASS ACTION COMPLAINT

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1

g. Whether Class Members are entitled to equitable and injunctive relief

2

to redress the imminent and currently ongoing harm faced as a result

3

of their exclusion from the CARES Act;

4

h. What the scope of a resulting permanent injunction would include;

5

and

6

i. Whether or not Class Members are entitled to Declaratory Judgment

7

relating to their classification and exclusion, among others, under the

8

CARES Act.

9

65. The claims alleged by the named individual Plaintiff are typical of the

10 claims of the Class because the challenged statutory provision applies with the same

11 force to the named individual Plaintiff as they do to all other members of the Class.

12

66. Plaintiff will fairly and adequately represent the Class Members.

13 Plaintiff has no interests that conflict with the interests of Class Members. Plaintiff

14 possesses a strong personal interest in the subject matter of this lawsuit and the claims

15 raised. Plaintiff has retained counsel experienced in handling civil rights cases, class

16 actions, federal litigation, and litigation involving constitutional law. Counsel has the

17 legal knowledge and resources to represent fairly and adequately in the interests of all

18 Class Members in this action. Neither Plaintiff nor her counsel have any interests that

19 might cause them not to pursue these claims vigorously.

20

67. The universe of people affected by the CARES Act’s and Defendants’

21 unlawful policy and/or practice is ascertainable through Defendants’ records and,

22 therefore, the Class is ascertainable.

23

68. This action should be maintained as a class action because the

24 prosecution of separate actions by individual Class Members would create a risk of

25 inconsistent or varying adjudications with respect to individual members that would

26 establish incompatible standards of conduct for the parties opposing the Class.

27 Defendants also have acted or failed to act on grounds that generally apply to all

28 Class Members, necessitating the declaratory and relief Plaintiff seeks. In addition,

- 14 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 15 of 27 Page ID #:15

1 questions of law and fact common to Class Members predominate over questions

2 affecting only individual Class Members. A class action is superior to other available

3 methods for fairly and efficiently adjudicating the controversy because, among other

4 things, a class action would concentrate a multiplicity of individual actions, which

5 share common facts and legal disputes, in a single forum.

6

COUNT I

7

Violation(s) of the Fifth Amendment to the United States Constitution

8

(On Behalf of Plaintiff and the Class)

9

69. Plaintiff re-alleges and incorporates paragraphs 1-68 of this Complaint

10 as though fully set forth herein.

11

70. Defendants, acting under color of law, have violated rights secured to

12 Plaintiff by the Fifth and Fourteenth Amendments to the United States Constitution

13 including the right to due process of law, the right to equal protection under the law,

14 and the penumbra of privacy rights created by the First, Third, Fourth, and Fifth

15 Amendments that creates a fundamental right to marriage. Specifically, Defendants

16 have failed, as applied to Plaintiff, to treat her as equal to her fellow United States

17 citizens based solely on whom she chose to marry.

18 I. Substantive Due Process

19

71. The Fifth Amendment to the United States Constitution provides that no

20 person shall be “deprived of life, liberty or property without due process of law.” U.S.

21 Const. amend. V.

22

72. The Supreme Court has reiterated in numerous contexts that the right to

23 marry is a fundamental right under the Due Process Clause. See, e.g., M. L. B. v. S. L.

24 J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996); Cleveland Bd. of

25 Ed. v. LaFleur, 414 U.S. 632, 639-640, 94 S. Ct. 791, 39 L. Ed. 2d 52

26 (1974); Griswold, supra, at 486, 85 S. Ct. 1678, 14 L. Ed. 2d

27 510; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86

28

- 15 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 16 of 27 Page ID #:16

1 L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed.

2 1042 (1923).

3

73. Discrimination based on the fundamental right to marry is presumptively

4 unconstitutional and subject to strict scrutiny.

5

74. The Fifth Amendment to the U.S. Constitution protects freedom of

6 personal choice in matters of marriage and family life.

7

75. The Defendants, in their individual and official capacities as President of

8 the United States, Senator and Sponsor of the CARES Act in the United States,

9 Acting Secretary of the U.S. Department of Treasury, Commissioner of Internal

10 Revenue, the U.S. Department of the Treasury, the Internal Revenue Service, and the

11 United States of America, violated Plaintiff’s substantive due process rights and

12 deprived Plaintiff of her rights, privileges, and/or immunities secured by the

13 Constitution of the United States.

14

76. The Defendants have irreparably injured Plaintiff by engaging and

15 continuing to engage in behavior that violates Plaintiff’s constitutional property

16 interest rights individually and as a taxpayer in the United States.

17

77. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiff from the category of

18 those citizens entitled to receive a Stimulus Check, based only on to whom she

19 married, “slic[es] deeply into the family itself.” Moore v. City of E. Cleveland, Ohio,

20 431 U.S. 494, 498 (1977). On its face, and as applied, 26 U.S.C. § 6428 (g)(1)(B)

21 selects certain categories of married individuals who may receive a Stimulus Check

22 and declares that others may not. In particular, 26 U.S.C. § 6428 (g)(1)(B) denies a

23 Stimulus Check to Plaintiff based on her choice to marry an individual who lacks a

24 social security number.

25

78. 26 U.S.C. § 6428 (g)(1)(B) threatens Plaintiff’s freedom of choice in

26 personal matters related to marriage and family, including the sanctity of Plaintiff’s

27 interest in defining her family through personal choice.

28

- 16 CLASS ACTION COMPLAINT

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1

79. 26 U.S.C. § 6428 (g)(1)(B) intentionally and substantially infringes upon

2 and unduly burdens Plaintiff’s liberty interests, as well as other interests that form the

3 basis of Plaintiff’s fundamental right to marry and to choose how to define her

4 family.

5

80. Plaintiff’s choice of whom to marry is fundamental to her autonomy,

6 dignity, and self-determination. 26 U.S.C. § 6428 (g)(1)(B)’s exclusion of Plaintiff

7 from receiving a Stimulus Check unduly interferes with Plaintiff’s fundamental rights

8 and liberty interests, is arbitrary, unfair, and unreasonable, and lacks an adequate

9 justification.

10

81. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to

11 her constitutional rights under the Fifth Amendment’s Due Process Clause.

12

82. Defendants’ violations have caused and will cause Plaintiff harm.

13 II. Equal Protection Clause

14

A. Social Security Number Holder Married to ITIN Holder-Suspect

15

Class

16

83. The Fifth Amendment to the United States Constitution guarantees all

17 persons equal treatment under the law. The right to marry is secured by the Equal

18 Protection Clause.

19

84. The Fourteenth Amendment to the United States Constitution,

20 enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any

21 person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

22 XIV, § 1. In addition, the Privileges and Immunities Clause of the Fourteenth

23 Amendment states that “the citizens of each state shall be entitled to all privileges and

24 immunities of citizens in the several states.” U.S. Const. amend. XIV, § 1 Clause 2.

25 Although the Fourteenth Amendment expressly applies to the States, it has been

26 construed to apply to the Federal Government through the Reverse Incorporation

27 Doctrine under Bolling v. Sharpe, 347 U.S. 497 (1954) and its progeny. See Brown v.

28 Board of Education of Topeka, 347 U.S. 483 (1954); Adarand Constructors, Inc. v.

- 17 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 18 of 27 Page ID #:18

1 Peña, 515 U.S. 200 (1995) (applying strict scrutiny to the federal government based

2 on equal protection grounds).

3

85. 26 U.S.C. § 6428 (g)(1)(B), on its face and as applied to Plaintiff,

4 violates the equal protection guarantee of the Fifth Amendment by burdening

5 Plaintiff’s fundamental right to marry in a way that offends basic principles of justice

6 and of equality. Marriage has long been regarded as a fundamental right, the

7 foundation of the family and of society. It embraces the right to personal choice and

8 individual autonomy, and dignifies couples who define themselves by their

9 commitment to each other.

10

86. Plaintiff is a U.S. citizen and has lawfully filed taxes in the United

11 States, yet she is being denied the rights and privileges of citizenship under the

12 CARES Act.

13

87. Similarly situated U.S. citizens and Social Security Number Holders

14 who are not married to immigrants and who filed joint tax returns have not been

15 denied such rights and privileges under the CARES Act.

16

88. Plaintiff brings this action against Defendants in their individual and

17 official capacities for purposes of seeking declaratory and injunctive relief and

18 challenges the Defendants’ practices and policies of discrimination both facially and

19 as applied to her, individually and as the putative Class Plaintiff.

20

89. As a direct result of 26 U.S.C. § 6428 (g)(1)(B), as enacted by the

21 CARES Act, the federal government treats Plaintiff, who is legally married,

22 differently than other married couples simply because her spouse lacks a social

23 security number. As a result of this disparate treatment, Plaintiff is excluded from the

24 category of citizens entitled to receive a Stimulus Check. 26 U.S.C. § 6428 (g)(1)(B)

25 also infringes on Plaintiff’s right to enjoy all the benefits of marriage afforded to

26 other married couples.

27

28

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Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 19 of 27 Page ID #:19

1

90. Defendants cannot justify creating this classification that singles out one

2 class of married individuals with social security numbers and subjects them to

3 disparate and injurious treatment based solely on whom they have chosen to marry.

4

91. Defendants intentionally discriminate against Plaintiff when they enforce

5 this Exclusion Provision that infringes on the exercise of a fundamental right.

6

92. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to

7 her constitutional rights under the Fifth Amendment’s Equal Protection Clause.

8

93. Defendants’ violations have caused and will cause Plaintiff harm.

9

B. Alienage-Suspect Class

10

94. “[Classifications] based on alienage, like those based on nationality or

11 race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are

12 a prime example of a ‘discrete and insular’ minority . . . for whom such heightened

13 judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372

14 (1971) (footnotes and citations omitted).

15

95. Discrimination based on the alienage of a U.S. citizen’s spouse is

16 presumptively unconstitutional and subject to strict scrutiny.

17

96. Defendants discriminate against Plaintiff on the basis of the alienage of

18 her spouse.

19

97. The Exclusion Provision, on its face and as applied, or threatened to be

20 applied, violates the Due Process Clause of the Fifth Amendment; Equal Protection

21 and Privileges and Immunities under the Fourteenth Amendment under the Reverse

22 Incorporation Doctrine; and the well-established fundamental right to marry.

23

98. Defendants have no compelling interest justifying their policies of

24 discrimination based on the marriage to a non-U.S. Citizen, and they cannot show

25 that this suspect class is necessary to serve any legitimate governmental interest.

26

99. The Defendants treat Plaintiff differently than U.S. Citizens who marry

27 other U.S. Citizens, who are otherwise similarly situated to Plaintiff.

28

- 19 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 20 of 27 Page ID #:20

1

100. Sec. 6428 is not narrowly tailored to advance a compelling government

2 interest, nor is it rationally related to any legitimate government interest.

3

101. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to

4 her constitutional rights under the Fifth Amendment’s Equal Protection Clause.

5

102. Defendants’ violation has caused and will cause Plaintiff harm.

6

103. Accordingly, the Exclusion Provision of the CARES Act violates Due

7 Process Clause of the Fifth Amendment to the United States Constitution; Equal

8 Protection and Privileges and Immunities under the Fourteenth Amendment under the

9 Reverse Incorporation Doctrine; and the well-established fundamental right to marry.

10

COUNT II

11

Violation(s) of the First Amendment to the United States Constitution

12

(On Behalf of Plaintiff and the Class)

13

104. Plaintiff re-alleges and incorporates paragraphs 1-103 of this Complaint

14 as though fully set forth herein.

15

105. The First Amendment to the U.S. Constitution states: “Congress shall

16 make no law respecting an establishment of religion, or prohibiting the free exercise

17 thereof; or abridging the freedom of speech, or of the press; or the right of the people

18 peaceably to assemble, and to petition the Government for a redress of grievances.”

19 U.S. Const. amend. I.

20

106. Specific guarantees in the Bill of Rights have penumbras, formed by

21 emanations from those guarantees that help give them life and substance. Various

22 guarantees create zones of privacy. The right of association contained in the

23 penumbra of the First Amendment is one of those fundamentally protected zones of

24 privacy. Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965).

25

107. The right of privacy first achieved constitutional stature in Griswold v.

26 Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), wherein the

27 Griswold Court began by noting that “specific guarantees in the Bill of Rights have

28

- 20 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 21 of 27 Page ID #:21

1 penumbras, formed by emanations from those guarantees that help give them life and

2 substance.” 381 U.S. at 484.

3

108. The Griswold opinion stressed the sanctity of marriage lying within the

4 zone of privacy created by several fundamental constitutional guarantees. Griswold v.

5 Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682 (1965)

6

109. Defendants discriminate against Plaintiff and the Class on the basis of

7 their protected sanctity of marriage—a fundamental right.

8

110. The CARES Act provision at issue, on its face and as applied, or

9 threatened to be applied, violates the First Amendment of the United States

10 Constitution.

11

111. As a direct result of 26 U.S.C. § 6428 (g)(1)(B), the federal government

12 treats Plaintiff, who is legally married, differently than other married couples simply

13 because her spouse lacks a social security number. As a result of the disparate

14 treatment, Plaintiff is excluded from receiving a Stimulus Check. 26 U.S.C. § 6428

15 (g)(1)(B) also infringes on Plaintiff’s right to enjoy all the benefits of marriage

16 afforded to other married couples.

17

112. Defendants cannot justify creating this classification that singles out one

18 class of married individuals with social security numbers and subjects them to

19 different treatment based on whom they marry.

20

113. Defendants intentionally discriminate against Plaintiff when they enforce

21 the Exclusion Provision of the CARES Act that infringes on the zone of privacy.

22

114. Defendants have no compelling interest justifying their policies of

23 discrimination based on marriage, and they cannot show that these classifications are

24 necessary to serve any legitimate governmental interest.

25

115. The Defendants treat Plaintiff differently than married U.S. Citizens who

26 file jointly with their U.S. Citizen and/or Social Security Holder spouses, who are

27 otherwise similarly situated to Plaintiff.

28

- 21 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 22 of 27 Page ID #:22

1

116. The CARES Act singles out law-abiding and tax-paying U.S. Citizens

2 by denying them a benefit they and their children would otherwise be entitled to with

3 no compelling interest justifying the law and without serving any legitimate

4 governmental interest.

5

117. Sec. 6428(g) is not narrowly tailored to advance a compelling

6 government interest, nor is it rationally related to any legitimate government interest.

7

118. As a proximate result of Defendants’ conduct, Plaintiff suffered injury to

8 her constitutional rights under the First Amendment’s Freedom of Association

9 Clause.

10

119. Defendants’ violation has caused and will cause Plaintiff harm.

11

120. Accordingly, the Section 2101 of the CARES Act, by enacting Sec.

12 6428(g)(1)(B) violates the First Amendment to the United States Constitution.

13

COUNT III

14

Action for Temporary Restraining Order (“TRO”);

15

Preliminary and Permanent Injunction; and Declaratory Relief Against All Defendants

16

(On Behalf of Plaintiff and the Class)

17

121. Plaintiff re-alleges and incorporates paragraphs 1-120 of this Complaint

18 as though fully set forth herein.

19

122. Plaintiff seeks the entry of a temporary restraining order, preliminary

20 and permanent injunction, and Declaratory Relief, including but not limited to the

21 following:

22

a. Issue a temporary, preliminary and permanent injunction against the

23

Defendants and all those acting in concert prohibiting enforcement of

24

the laws, as applied, at issue in this action; and

25

b. Issue a declaratory judgment that the Exclusion Provision of the

26

CARES Act, as applied to Plaintiff and the Class, violates the

27

constitutional and statutory rights of Plaintiff and denies Plaintiff the

28

privileges and immunities to which she would otherwise be entitled.

- 22 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 23 of 27 Page ID #:23

1

123. Plaintiff has no adequate remedy at law and is suffering irreparable

2 harm. There is no risk of harm to the Defendants should this Court grant an injunction

3 prohibiting enforcement of the Exclusion Provision as enacted by the CARES Act.

4 Meanwhile, the harm to Plaintiff is severe. The public interest is clearly served by

5 this Court acting to order recognition of U.S. Citizens and their children consistent

6 with the manner in which the Federal Government treats similarly situated U.S.

7 Citizens, without regard to their marital status. Only prompt action by this federal

8 Court ordering declaratory and injunctive relief will serve the public interest.

9

124. Injunctive relief is appropriate under the circumstances because

10 Defendants have intentionally excluded otherwise eligible U.S. Citizens from

11 receiving the Stimulus Check and, more damaging, excluding them from a benefit

12 conferred upon all other U.S. Citizens simply because of whom they chose to marry,

13 which is facially discriminatory and retributive.

14

125. Plaintiff has suffered, and will continue to suffer, immediate and

15 irreparable harm by reason of the conduct described above. Such immediate and

16 irreparable harm includes, but is not limited to, the loss of a minimum of $1,200.00

17 U.S. Dollars and a loss of privacy, reputation in the community, and dignity.

18

126. Plaintiff does not have an adequate remedy at law to protect and re-

19 establish the rights which currently have been, and continue to be, violated by

20 Defendants’ actions. Plaintiff’s rights cannot be obtained except through injunctive

21 relief.

22

127. Entering the injunctive relief that Plaintiff is seeking will cause the

23 Defendants no harm.

24

128. Defendants will suffer no loss, if compelled to act in accordance with the

25 law, by refraining from discriminating against U.S. Citizens based upon their marital

26 status to immigrants.

27

129. There is a reasonable likelihood that the Plaintiff will succeed on the

28 merits of his claims.

- 23 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 24 of 27 Page ID #:24

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff JANE DOE, individually and on behalf of the

3 proposed Class, by and through her attorneys, Blaise & Nitschke, P.C., prays for

4 relief as follows:

5

a. For an Order certifying this action as a class action and appointing Plaintiff

6

and her Counsel to represent the Class;

7

b. An Order granting Blaise & Nitschke, P.C. and *Khalaf & Abuzir, LLC as

8

class counsel;

9

c. A temporary, preliminary and/or permanent injunction against the

10

Defendants, and all those acting in concert, prohibiting enforcement of the

11

laws as written and instead applying the provision as follows;

12

i. Issuing a Temporary Restraining Order directing that Section 2101 of

13

the CARES Act be applied as follows:

14

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

15

Internal Revenue Code of 1986 is amended by inserting after section

16

6427 the following new section:

17

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

18

[. . .]

19

“(h) Identification Number Requirement.—

20

“(1) IN GENERAL.—No credit shall be allowed under subsection (a)

21

to an eligible individual who does not include on the return of tax for

22

the taxable year—

23

“(A) such individual’s valid identification number,

24

“(B) in the case of a joint return, the valid identification number such

25

individual’s spouse for at least one of the filing spouses, and

26

“(C) in the case of any qualifying child taken into account under

27

subsection (b)(1)(B), the valid identification number of such

28

qualifying child.

- 24 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 25 of 27 Page ID #:25

1

“(2) VALID IDENTIFICATION NUMBER.—

2

“(A) IN GENERAL.—For purposes of paragraph (1), the term ‘valid

3

identification number’ means a social security number (as such term

4

is defined in section 24(h)(7)).

5

ii. Issuing a Preliminary and Permanent Injunction amending the

6

CARES Act as identified above and enjoining Defendants from

7

affixing any new terms to the CARES Act, or any future legislation

8

designed to provide economic stimulus to United States citizens that

9

excludes mixed immigration status families.

10

d. A determination that the Exclusion Provision, as enacted by Section 2101 of

11

the CARES Act, is unconstitutional and should not be enforced;

12

e. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

13

Sec. 6428(g), is subject to strict scrutiny;

14

f. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

15

Sec. 6428(g), as applied to the Plaintiff, violates the constitutional and

16

statutory rights of Plaintiff;

17

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

18

that are violative of the protections afforded to Plaintiff and those similarly

19

situated under the United States Constitution, federal statutes, and those

20

cases interpreting the same under which this Court is bound under the

21

principles of stare decisis;

22

h. Enter an Order requiring the Defendants to hold in escrow or otherwise

23

earmark sufficient funds for the issuance of Stimulus Checks to members of

24

the Class;

25

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

26

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

27

JURY DEMAND

28

Plaintiff respectfully demands a trial by jury of all matters so triable.

- 25 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 26 of 27 Page ID #:26

1

DOCUMENT PRESERVATION DEMAND

2

Plaintiff hereby demands that Defendants take affirmative steps to preserve all

3 recordings, data, documents, and all other tangible things that relate to Plaintiff and

4 the Class and the events described herein. These materials are likely very relevant to

5 the litigation of this claim. If Defendants are aware of any third party that has

6 possession, custody, or control of any such materials, Plaintiff demands that

7 Defendants ensure, by whatever lawful means necessary, that such third party also

8 take steps to preserve the materials. This demand shall not narrow the scope of any

9 independent document preservation duties of the Defendants.

10

NOTICE OF LIEN AND ASSIGNMENT

11

All rights relating to attorneys’ fees have been assigned to counsel.

12 13 DATED: May 6, 2020

Respectfully submitted,

14

JANE DOE, individually and on behalf of

15

others similarly situated.

16

/s/ Heather L. Blaise

17

HEATHER L. BLAISE, ESQ. (SBN 261619)

18

123 N. Wacker Drive, Suite 250

19

Chicago, IL 60606

Telephone: 312-448-6602

20

Email: hblaise@blaisenitschkelaw.com

21

Attorney for Plaintiff

22

BLAISE & NITSCHKE, P.C.

23

Lana B. Nassar (IL Bar No. 6319396) *

24

Thomas J. Nitschke (IL Bar No. 6225740) *

25

Elisabeth A. Gavin (IL Bar No. 6297740) *

26

123 N. Wacker Drive, Suite 250

Chicago, IL 60606

27

T: (312) 448-6602

28

F: (312) 803-1940

- 26 CLASS ACTION COMPLAINT

Case 8:20-cv-00858 Document 1 Filed 05/06/20 Page 27 of 27 Page ID #:27

1

lnassar@blaisenitschkelaw.com

2

KHALAF & ABUZIR, LLC

3

Vivian Khalaf (IL Bar No. 6210668) *

4

Omar Abuzir (IL Bar No. 6257708) *

5

20 N. Clark, Suite 720

6

Chicago, IL 60602 T: (708)-233-1122

7

F: (708)-233-1161

8

vkhalaf@immigrationjd.com

9

* Application for admission pro hac vice

10

forthcoming

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 27 CLASS ACTION COMPLAINT

 
 Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 1 of 6 Page ID #:55

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

24

CASE NO: 8:20-cv-00858 DOC (DFMx)
Assigned to the Hon. David O. Carter
PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

25

Action Filed: May 6, 2020

26

27 28

- 1 -
PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 2 of 6 Page ID #:56

1

Plaintiff, Jane Doe, (hereinafter “Doe” or “Plaintiff”), individually and on

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

3 hereby applies ex parte to the Court pursuant to Federal Rule of Civil Procedure 65

4 and Local Rule 65-1 for a Temporary Restraining Order, Preliminary Injunction

5 and/or Declaratory Judgment (“Emergency Motion”) and moves this Court for an

6 Order prohibiting DONALD J. TRUMP, in his individual and official capacity as

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

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

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

10 Department of Treasury; CHARLES RETTIG, in his individual and official capacity

11 as U.S. Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE

12 TREASURY; the U.S. INTERNAL REVENUE SERVICE; and the UNITED

13 STATES OF AMERICA (hereinafter collectively referred to as “Defendants”), from

14 enforcement of the S. 3548-Coronavirus Aid, Relief, and Economic Security Act

15 (hereinafter “CARES Act”) as written and as applied to the Plaintiff and the putative

16 class (hereinafter “Putative Class”) in this action. The Emergency Motion further

17 requests a declaratory judgment that the CARES Act provision at issue in this case, as

18 written and as applied to Plaintiff and the Putative Class, violates the First 19 Amendment to the U.S. Constitution; the Due Process Clause of the Fifth 20 Amendment to the U.S. Constitution; Equal Protection and Privileges and Immunities 21 under the Fourteenth Amendment to the U.S. Constitution under the Reverse 22 Incorporation Doctrine; the well-established fundamental right to marry; and denies 23 Plaintiff and the Putative Class rights, privileges, immunities, and/or benefits to 24 which they would otherwise be entitled, and seeks the following relief: 25

26

27 28

- 2 -
PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 3 of 6 Page ID #:57

1

A. A temporary, preliminary and/or permanent injunction against the

2

Defendants, and all those acting in concert, prohibiting enforcement of

3

the laws as written and instead applying the provision as follows:

4

i. Issuing a Temporary Restraining Order directing that Section

5

2101 of the CARES Act be applied as follows:

6

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

7

Internal Revenue Code of 1986 is amended by inserting after

8

section 6427 the following new section:

9

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

10

[. . .]

11

“(h) Identification Number Requirement.—

12

“(1) IN GENERAL.—No credit shall be allowed under subsection

13

(a) to an eligible individual who does not include on the return of

14

tax for the taxable year—

15

“(A) such individual’s valid identification number,

16

“(B) in the case of a joint return, the valid identification number of

17

such individual’s spouse for at least one of the filing spouses, and

18

“(C) in the case of any qualifying child taken into account under

19

subsection (b)(1)(B), the valid identification number of such

20

qualifying child.

21

“(2) VALID IDENTIFICATION NUMBER.—

22

“(A) IN GENERAL.—For purposes of paragraph (1), the term

23

‘valid identification number’ means a social security number (as

24

such term is defined in section 24(h)(7)).

25

ii. Issuing a Preliminary and Permanent Injunction amending the

26

CARES Act as identified above and enjoining Defendants from

27 28

- 3 -
PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 4 of 6 Page ID #:58

1

affixing any new terms to the CARES Act, or any future

2

legislation designed to provide economic stimulus to United States

3

citizens that excludes mixed immigration status families.

4

B. A determination that Section 2101 of the CARES Act, enacting Sec.

5

6428(g), is unconstitutional and should not be enforced;

6

C. Issue a declaratory judgment that Section 2101 of the CARES Act,

7

enacting Sec. 6428(g), is subject to strict scrutiny;

8

D. Issue a declaratory judgment that Section 2101 of the CARES Act,

9

enacting Sec. 6428(g), as applied to the Plaintiff, violates the

10

constitutional and statutory rights of Plaintiff;

11

E. Issue a declaratory judgment striking from the CARES Act those

12

provisions that are violative of the protections afforded to Plaintiff and

13

those similarly situated under the United States Constitution, federal

14

statutes, and those cases interpreting the same under which this Court is

15

bound under the principles of stare decisis;

16

F. Enter an Order requiring the Defendants to hold in escrow or otherwise

17

earmark sufficient funds for the issuance of Stimulus Checks to

18

members of the Class;

19

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

20

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

21

Plaintiff submits her Memorandum of Law in Support of Application for

22 Plaintiff’s Emergency Motion for a Temporary Restraining Order, Preliminary

23 Injunction and/or Declaratory. Plaintiff requests that this Court issues a ruling on its

24 Order to Show Cause Why a Preliminary Injunction Should Not Issue.

25

Counsel for Plaintiff has advised counsel for the Defendants of the date of

26 filing and substance of this Application by telephone on May 8, 2020. Counsel for

27 28

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PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 5 of 6 Page ID #:59

1 Plaintiff spoke to Melissa Briggs, Esq (melissa.briggs2@usdoj.gov) and John Ellis,

2 Esq., (john.ellis3@usdoj.gov) who indicated they were the attorneys assigned to the

3 Case. Defendants’ counsel informed Plaintiff that Defendants oppose this

4 Application.

5

In addition, Plaintiff hereby respectfully request that this Court grant her Class

6 Certification Or In The Alternative Provisional Class Certification for the Purposes of

7 Plaintiff’s Application for Her Emergency Motion for a Temporary Restraining

8 Order, Preliminary Injunction and/or Declaratory Judgment Emergency Motion, and

9 appoint her as class Plaintiff in this litigation, and appoint her undersigned attorneys

10 as class counsel pursuant to Federal Rule of Civil Procedure 23.

11

This Motion incorporates by reference Plaintiff’s Motion and Memorandum of

12 Law in Support of Application for Plaintiff’s Emergency Motion for a Temporary

13 Restraining Order, Preliminary Injunction and/or Declaratory Judgment (hereinafter

14 “Emergency Motion”) and Plaintiff’s Motion and Memorandum of Law in Support of

15 Class Certification Or In The Alternative Provisional Class Certification for purposes

16 of Plaintiff’s Application for Her Emergency Motion for a Temporary Restraining

17 Order, Preliminary Injunction and/or Declaratory Judgment filed simultaneously

18 herein.

19

This application is made on the grounds set forth in the accompanying

20 Memorandums in Support; and exhibits attached thereto; all pleadings and papers

21 filed in this action; the argument of counsel; and further evidence as the Court may

22 consider at or before a hearing regarding this Application or the hearing regarding the

23 Order to Show Cause and preliminary injunction requested herein.

24

25 DATED: May 8, 2020

Respectfully submitted,

26

JANE DOE, individually and on behalf of

27

others similarly situated.

28

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PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 9 Filed 05/08/20 Page 6 of 6 Page ID #:60

1

/s/ Heather L. Blaise

2

HEATHER L. BLAISE, ESQ. (SBN 261619)

123 N. Wacker Drive, Suite 250

3

Chicago, IL 60606

4

Telephone: 312-448-6602

5

Email: hblaise@blaisenitschkelaw.com

6

Attorney for Plaintiff

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 28

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PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT AND MEMORANDUM IN SUPPORT OF CLASS
CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 1 of 31 Page ID #:62

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 DOC (DFMx) Assigned to the Hon. David O. Carter
MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT
Action Filed: May 6, 2020

24

NOW COMES Plaintiff, Jane Doe, (hereinafter “Doe” or “Plaintiff”),

25 individually and on behalf of the proposed class, by and through her attorneys, Blaise

26 & Nitschke, P.C., and pursuant to Federal Rule of Civil Procedure 65 and Local Rule

27 65-1 and submits her Memorandum of Law in Support of Application for Plaintiff’s

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 2 of 31 Page ID #:63

1 Emergency Motion for a Temporary Restraining Order, Preliminary Injunction and/or

2 Declaratory Judgment (“Emergency Motion”) against DONALD J. TRUMP, in his

3 individual and official capacity as President of the United States; MITCH

4 MCCONNELL, in his individual and official capacity as United States Senator and

5 the Sponsor of S. 3548 CARES Act; STEVEN MNUCHIN, in his individual and

6 official capacity as the Acting Secretary of the U.S. Department of Treasury;

7 CHARLES RETTIG, in his individual and official capacity as U.S. Commissioner of

8 Internal Revenue; U.S. DEPARTMENT OF THE TREASURY; the U.S. INTERNAL

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

10 collectively referred to as “Defendants”).

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 3 of 31 Page ID #:64

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS..............................................................................................iii

3 TABLE OF AUTHORITIES........................................................................................iv 4 5 PROCEDURAL HISTORY ..........................................................................................1

6 THE EXIGENT FACTS THAT NECESSITATE THIS MOTION ............................. 1

7 LAW ............................................................................................................................11 8
9 ARGUMENT...............................................................................................................13

10 I. Plaintiff and the Putative Class Easily Meets the Elements of a Prima Facie

11

Case for Injunctive Relief and the Balance of Harm Weighs Heavily in Their Favor. ..................................................................................................13

12

13

A. Plaintiff and the Putative Class Have a Likelihood of Success on the Merits of Their Claim That the Exclusion Provision of the CARES Act

14

Violates the First, Fifth, and Fourteenth Amendments...........................14

15 B. Plaintiff and the Putative Class Will Suffer Irreparable Hard If Relief Is

16

Not Granted. ............................................................................................18

17 C. The Balance of Equities and the Public Interest Favors the Relief

18

Plaintiff and the Putative Class Are Requesting. ....................................22

19 PRAYER FOR RELIEF ..............................................................................................24
20

21

22

23

24

25

26

27

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 4 of 31 Page ID #:65

1

TABLE OF AUTHORITIES

2 Cases

3 19 I. & N. Dec. 1, 1,

4

1983 BIA LEXIS 18, *1 (B.I.A. December 12, 1983)......................................21 Alliance for the Wild Rockies v. Cottrell,

5

632 F.3d 1127, 1135 (9th Cir. 2011) ...................................................................12

6

Anhing Corp. v. Thuan Phong Co., No. 13-cv-05167-BRO-MANx, 2013 U.S. Dist. LEXIS 190829, at *8

7

(C.D. Cal. Dec. 26, 2013) ....................................................................................12

8

Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954)..............................................16

9 Bolton v. Harris,

10

130 U.S. App. D.C. 1, 395 F.2d 642 (1968) ........................................................16 Bresgal v. Brock,

11

843 F.2d 1163, 1170 (9th Cir. 1987) ...................................................................13

12

Brown v. Board of Education, 347 U.S. 483 [74 S. Ct. 686, 98 L. Ed. 873] (1954) ............................................17

13 Chhoeun v. Marin,

14

306 F. Supp. 3d 1147, 1164 (C.D. Cal. 2018) .....................................................13 Davis v. Richardson,

15

342 F. Supp. 588, 591 (D. Conn. 1972)...............................................................16

16

Doe v. Trump, 418 F. Supp. 3d 573, 603 (D. Or. 2019) ..............................................................13

17 Doe v. Trump,

18

No. 19-36020, 2020 U.S. App. LEXIS 14169, at *46 (9th Cir. May 4, 2020)....13 Elrod v. Burns,

19

427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).........................18, 20

20

Flemming v. Nestor, 363 U.S. 603, 611, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960)...............................16

21 Graham v. Richardson,

22

403 U.S. 365, 372 (1971).....................................................................................15 Griffin v. Richardson,

23

346 F. Supp. 1226 (D. Md. 1972) ............................................................15, 16, 17

24

Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965)..................................................19

25 Harper v. Virginia [State] Board of Elections,

26

383 U.S. 663 [86 S. Ct. 1079, 16 L. Ed. 2d 169] (1966) .....................................17 Hawai'i v. Trump,

27

241 F. Supp. 3d 1119, 1134 (D. Haw. 2017)...........................................12, 18, 22

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 5 of 31 Page ID #:66

1 Howe v. Varity Corp.,

2

896 F.2d 1107, 1112 (8th Cir. 1990) ...................................................................13 J.L. v. Cissna,

3

341 F. Supp. 3d 1048, 1070 (N.D. Cal. 2018) .....................................................13

4

Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) ...................................................................18

5 Levy v. Louisiana,

6

391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968).........................................17 Melendres v. Arpaio,

7

695 F.3d 990, 1002 (9th Cir. 2012) .........................................................18, 20, 22

8

Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971)...............................16, 17

9 Richardson v. Davis,

10

409 U.S. 1069 (1972).....................................................................................15, 16 Shell Offshore, Inc. v. Greenpeace, Inc.,

11

709 F.3d 1281, 1291 (9th Cir. 2013) ...................................................................12

12 Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) .................................................................11

13 Washington v. Trump,

14

847 F.3d 1151, 1169 (9th Cir. 2017) .............................................................18, 20 Winter v. NRDC, Inc.,

15

555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)...................................12

16 Statutes

17

I.R.C. § 1........................................................................................................................9 I.R.C. § 6103(a) .............................................................................................................9

18 I.R.C. § 6109..............................................................................................................8, 9

19 S. 3548, 116th Cong. (2020)............................................................................3, 4, 5, 20

20

Other Authorities 11A Charles Alan Wright, et al.,

21

Federal Practice and Procedure § 2951 (3d ed. 2019) .........................................12

22 166 Cong. Rec. H1841 (daily ed. Mar. 27, 2020) ......................................................... 4

Rules 23 Federal Rule of Civil Procedure 23(b)(2)....................................................................13

24 Regulations

25 Treas. Reg. § 301.6109-1(a)(1)(ii)(B) ...........................................................................8

26

Constitutional Provisions U.S. Const. amend. I. ...................................................................................................19

27

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 6 of 31 Page ID #:67

1

PROCEDURAL HISTORY

2

1. On May 6, 2020, Plaintiff filed a class action complaint against

3 Defendants (the “Complaint”). See Dkt No. 1.

4

2. Pursuant to the U.S. Attorney General’s Office in the Central District of

5 California, as a temporary emergency measure necessitated by circumstances related

6 to the spread of COVID-19, Plaintiff placed in the mail a copy of the Complaint by

7 certified mail on or about May 8, 2020. Service of Process on the United States

8 Attorney, THE UNITED STATES ATTORNEY’S OFFICE CENTRAL DISTRICT OF

9 CALIFORNIA, https://www.justice.gov/usao-cdca (last visited May 7, 2020).

10

THE EXIGENT FACTS THAT NECESSITATE THIS MOTION

11

3. On March 11, 2020, the World Health Organization’s Director General

12 categorized the current coronavirus (hereinafter “COVID-19”) outbreak as a

13 pandemic (hereinafter the “Pandemic”). WHO Director-General’s Opening Remarks

14 at the Media Briefing on COVID-19 – 11 March 2020, WORLD HEALTH

15 ORGANIZATION (March 11, 2020), https://www.who.int/dg/speeches/detail/who-

16 director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-

17 2020 (last visited May 6, 2020).

18

4. On March 13, 2020, President Donald J. Trump, proclaimed that the

19 COVID-19 outbreak in the United States constitutes a national emergency.

20 Proclamation on Declaring a National Emergency Concerning the Novel

21 Coronavirus Disease (COVID-19) Outbreak, WHITEHOUSE.GOV (March 13, 2020),

22 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-

23 emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/(last visited

24 May 6, 2020).

25

5. As of May 7, 2020, the Center for Disease Control and Prevention

26 reported 1,219,066 COVID-19 Cases in the United States and 73,297 COVID-19

27 deaths. Coronavirus Disease 2019 (COVID-19): Cases in the US, CDC.GOV (May 7,

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 7 of 31 Page ID #:68

1 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

2 (last visited May 7, 2020).

3

6. According to the U.S. Department of Labor, as of March 2020, the

4 unemployment rate increased by 0.9 percentage point to 4.4 percent – the largest

5 over-the-month increase in the rate since January 1975. News Release: The

6 Employment Situation – March 2020, BUREAU OF LABOR STATISTICS (April 3, 2020),

7 https://www.bls.gov/news.release/pdf/empsit.pdf (last visited May 6, 2020).

8

7. The number of unemployed persons rose by 1.4 million to 7.1 million in

9 March 2020. The sharp increases in these measures reflect the effects of COVID-19

10 and efforts to contain it. Id.

11

8. According to the U.S. Department of Labor, as of Thursday April 30,

12 2020, the insured unemployment rate was 12.4% for the week ending April 18, 2020,

13 which is the highest seasonally adjusted insured unemployment rate in the history of

14 the seasonally adjusted series. See Unemployment Insurance Weekly Claims,

15 DEPARTMENT OF LABOR (April 30, 2020), https://www.dol.gov/ui/data.pdf (last

16 visited May 6, 2020).

17

9. 33 million Americans have applied for unemployment since the

18 beginning of the Pandemic, a number that exceeds all jobs created since the Great

19 Recession by more than 12 million. Even the predictions that unemployment will

20 probably be at the “highest point since the Great Depression” will not reflect the full 21 picture, as the unprecedented response to the Pandemic upends the traditional 22 measures used to count those who are out of work. Charisse Jones, Jobless Claims 23 May Reach 33 Million as COVID-19 Layoffs Lead to a Historic Jobless Rate, USA 24 TODAY (May 6, 2020), https://www.usatoday.com/story/money/2020/05/06/ 25 coronavirus-likely-lead-over-3-m-more-americans-file-jobless-claims/3084345001/ 26 (last visited May 6, 2020). 27

28

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Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 8 of 31 Page ID #:69

1

10. Jobless claims have reached 22 million, and the Federal Reserve

2 estimates that up to 47 million jobs could be lost. Alexander Kalev, Research: U.S.

3 Unemployment Rising Faster for Women and People of Color, HARVARD BUSINESS

4 REVIEW (April 20, 2020) https://hbr.org/2020/04/research-u-s-unemployment-rising-

5 faster-for-women-and-people-of-color (last visited May 6, 2020).

6

11. More troubling is that women and minorities are overrepresented in

7 industries at high risk of layoffs, such as retail, hospitality, recreation, and

8 manufacturing. Id.; see also Foreign-Born Workers: Labor Force Characteristics –

9 2018, BUREAU OF LABOR STATISTICS (May 16, 2019), https://www.bls.gov/news.

10 release/pdf/forbrn.pdf (last visited May 6, 2020).

11

12. Additionally, women and minorities are in greater danger of losing their

12 jobs in these troubled times not only because they work in high-layoff-risk industries

13 but also because most companies reflexively put them at the top of their layoff lists.

14 Kalev, supra.

15

13. In 2018, median usual weekly earnings of foreign-born, full-time wage

16 and salary workers were 83.3 percent of the earnings of their native-born

17 counterparts. Bureau of Labor Statistics, supra.

18

14. Further, many parents, like our Plaintiff, must elect to have at least one

19 parent stay home to care for their minor children that are now unable to attend school

20 due to COVID-19 closures, resulting in loss of family income. See Affidavit of

21 Plaintiff Jane Doe, attached hereto and incorporated herein as Exhibit A, redacted to

22 preserve Plaintiff’s anonymity, and available for this Court’s in camera review

23

15. As outlined in the First Amended Complaint, the CARES Act was

24 introduced in the United States Senate (the “Senate”) on March 19, 2020 by Mitch

25 McConnell (for himself, Mr. Alexander, Mr. Crapo, Mr. Grassley, Mr. Rubio,

26 Mr. Shelby, and Mr. Wicker). S. 3548, 116th Cong. (2020).

27

28

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1

16. The CARES Act was signed into law by President Donald J. Trump on

2 March 27, 2020. See Dkt No. 1.

3

17. The CARES Act full title reads: “To provide emergency assistance and

4 health care response for individuals, families, and businesses affected by the 2020

5 coronavirus pandemic.” S. 3548, 116th Cong. (2020) (emphasis added).

6

18. During the House of Representatives debate on the CARES Act,

7 Representative TJ Cox highlighted what he called “this bill's glaring shortcomings”

8 which included the fact that the bill “punishes mixed-status households and denies

9 some American citizens benefits they deserve.” 166 Cong. Rec. H1841 (daily ed.

10 Mar. 27, 2020) (statement of Rep. Cox of CA).

11

19. Section 2101 of the CARES Act amends Subchapter B of chapter 65 of

12 subtitle F of the Internal Revenue Code of 1986 by inserting a new section relating to

13 the Pandemic, entitled SEC. 6428. 2020 RECOVERY REBATES FOR

14 INDIVIDUALS (“Section 6428”). Section 6428 (a) provides stimulus payments

15 (hereinafter “Stimulus Check”) to individuals. Under section 6428 (a) each “eligible

16 individual” receives $1,200, and “eligible individuals filing a joint return” receive

17 $2,400. Section 6428 (a)(2) provides each eligible individual an additional $500 for

18 each of the individual’s “qualifying children.” Section 6428 (c) lessens these amounts

19 for individuals making more than $75,000 and married couples filing jointly who

20 make more than $150,000.

21

20. Pursuant to 26 U.S.C. § 6428 (g)(1)(B), enacted as part of the CARES

22 Act, Number Requirements for eligibility for the Stimulus Check are defined as

23 follows:

24

g) Identification Number Requirement.—

25

“(1) IN GENERAL.—No credit shall be allowed under

subsection (a) to an eligible individual who does not include on

26

the return of tax for the taxable year—

27

“(A) such individual’s valid identification number,

28

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1

“(B) in the case of a joint return, the valid identification

2

number of such individual’s spouse, and [(hereinafter the “Exclusion Provision”)]

3

“(C) in the case of any qualifying child taken into account

4

under subsection (b)(1)(B), the valid identification number of such qualifying child.

5

“(2) VALID IDENTIFICATION NUMBER.—

6

“(A) IN GENERAL.—For purposes of paragraph (1), the term ‘valid identification number’ means a social security

7

number (as such term is defined in section 24(h)(7)).

8

“(B) ADOPTION TAXPAYER IDENTIFICATION NUMBER.—For purposes of paragraph (1)(C), in the case of a

9

qualifying child who is adopted, the term ‘valid identification

10

number’ shall include the adoption taxpayer identification number of such child.

11

12 S. 3548, 116th Cong. § 2101(a) (2020) (emphasis added).

13

21. As written, 26 U.S.C. § 6428 (g)(1)(B) only permits a joint filing

14 married citizen to receive a Stimulus Check if both parties to the marriage possess

15 Social Security numbers – an unlawful exclusion of Plaintiff and the Putative Class.

16

22. The CARES Act was enacted explicitly to provide emergency assistance

17 to American citizens, and Plaintiff and the Putative Class have intentionally been

18 excluded from the group of citizens entitled to such assistance because they filed tax

19 returns with their spouses, who lack Social Security numbers. See Michelle

20 Singletary, If You’re Still Waiting on Your $1,200 Stimulus Check, Here are Key

21 Dates for the Next Set of Payments, THE WASHINGTON POST (April 27, 2020),

22 https://www.washingtonpost.com/business/2020/04/27/more-1200-stimulus-checks-

23 are-way-here-are-key-dates-next-set-payments/ (last visited April 30, 2020).

24

23. Sec. 6428 authorizes the Internal Revenue Service to disburse $1,200.00

25 to each "eligible individual" earning up to $75,000.00 in adjusted gross income who

26 have a Social Security number, and an additional $500.00 for each child under the

27 age of 17 (hereinafter "the Stimulus Check"). 26 U.S.C. § 6428.

28

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1

24. Sec. 6428 authorizes the Internal Revenue Service to disburse $2,400.00

2 to "eligible individuals filing a joint return" when earning up to $150,000.00 in

3 adjusted gross income. 26 U.S.C. § 6428.

4

25. Sec. 6428(c) lessens these amounts for individuals making more than

5 $75,000.00 and married couples filing jointly who make more than $150,000.00. 26

6 U.S.C. § 6428(c).

7

26. Sec. 6428, through a combination of provisions, excludes otherwise

8 qualified individuals from receiving the CARES Act Stimulus Checks solely because

9 their spouses lack social security numbers.

10

27. The Stimulus Checks include Defendant Trump's name. Defendant

11 Mnuchin admits that the inclusion of Defendant Trump's name on the Stimulus

12 Checks was Defendant Mnuchin's idea. Devan Cole, Mnuchin Says Putting Trump's

13 Name on Coronavirus Stimulus Checks Was His Idea, CNN (April 20, 2020),

14 https://www.cnn.com/2020/04/19/politics/steven-mnuchin-trump-name-stimulus-

15 checks-cnntv/index.html (last visited May 6, 2020).

16

28. Under Sec. 6428 (d), Plaintiffs are defined as “eligible individual[s]”

17 because they are neither “nonresident alien individual[s]” nor dependent children.

18

29. Plaintiff Jane Doe's children are also defined as “qualifying” for the

19 Stimulus Checks under Sec. 6428 (a)(2) because her children are under the age of 17

20 and live in the United States. 26 U.S.C. § 6428 (c) (2020).

21

30. Plaintiff Doe also provided her children’s social security numbers, which

22 is required by Sec. 6428 (g)(1)(C) in order for payments for qualifying children to be

23 included to receive a Stimulus Check.

24

31. The first Stimulus Checks were delivered via direct deposit on April 15,

25 2020 to 50 to 70 million Americans. Michael Collins and Christal Hayes, Treasury

26 Says First Coronavirus Stimulus Checks Have Gone Out, and Many Will Get

27 Payments by April 15, USA TODAY (April 14, 2020), https://www.msn.com/en-

28

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1 us/money/personalfinance/treasury-says-first-coronavirus-stimulus-checks-have-

2 gone-out-and-many-will-get-payments-by-april-15/ar-BB12zIQ7 (last visited May 6,

3 2020).

4

32. The remaining qualifying Americans (other than Plaintiff and the

5 Putative Class) received the Stimulus Checks on or about April 29, 2020 and May 5,

6 2020. See Michelle Singletary, If You’re Still Waiting on Your $1,200 Stimulus

7 Check, Here are Key Dates for the Next Set of Payments, THE WASHINGTON POST

8 (April 27, 2020) https://www.washingtonpost.com/business/2020/04/27/more-1200-

9 stimulus-checks-are-way-here-are-key-dates-next-set-payments/ (last visited May 6,

10 2020).

11

33. As of the date of this filing, Plaintiff and the Putative Class have not and

12 will not receive their Stimulus Checks.

13

34. As the supporting declarations attached to this Motion make clear,

14 Plaintiff and other similarly situated individuals are suffering grave economic

15 hardships that will be ameliorated by treating them similarly to their fellow U.S.

16 Citizens. See Exhibit A and Affidavit of Heather L. Blaise, Esq. attached hereto and

17 incorporated herein as Exhibit B.

18

35. Specifically, due to the Pandemic, Plaintiff’s monthly family income has

19 been reduced to the point that it is extremely difficult to make ends meet; with her

20 minor children’s school closure as a result of the Pandemic and the requirements of e-

21 learning, her husband has been forced to remain at home with their five (5) minor

22 child, who are also U.S. citizens, and is unable to work outside the home. See Exhibit

23 A. While it has always been difficult to provide a decent life for her family with the

24 income she earns, it is now nearly impossible to meet her financial obligations for the

25 minimum necessities of life, including the ability to put food on her family’s table.

26 See id. Indeed, Plaintiff’s food expenses have significantly increased as a result of her

27 minor children being home from school. See id. Plaintiff is on the verge of being

28

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1 unable to pay her rent, and her insurance premiums, and health insurance deductibles.

2 See id. The CARES Act stimulus check would make it possible to meet some of her

3 family’s basic necessities during the Pandemic. See id.

4

36. To be eligible to receive a payment, an individual:

5

• must be a U.S. citizen, permanent resident or qualifying resident alien;

6

• cannot be claimed as a dependent on someone else’s return;

• must have a Social Security number (“SSN”) that is valid for employment

7

(“valid SSN”)

8

• Exception: If either spouse is a member of the U.S. Armed Forces at any

time during the taxable year, then only one spouse needs to have a valid

9

SSN; and

10

• must have an adjusted gross income below an amount based on his or her

11

filing status and the number of his or her qualifying children.

12 See Dkt No. 1.

13

37. Any family that files a joint tax return where one of the spouses has a

14 Social Security number and one has an Individual Taxpayer Identification Number,

15 which the Internal Revenue Service issues to workers who lack Social Security

16 numbers, cannot receive a Stimulus Check — unless one spouse is a member of the

17 U.S. Armed Forces. See Dkt No. 1.

18

38. An Individual Taxpayer Identification Number (“ITIN”) is a tax

19 processing number issued by the Internal Revenue Service. The IRS issues ITINs to

20 individuals who are required to have a U.S. taxpayer identification number but who

21 do not have, and are not eligible to obtain, a Social Security number from the Social

22 Security Administration. I.R.C. § 6109; Treas. Reg. § 301.6109-1(a)(1)(ii)(B).

23 Individuals who are present in the United States without formally completing the

24 immigration process may nevertheless be issued an ITIN for the purpose of paying

25 their taxes. An ITIN does not confer any immigration status or provide work

26 authorization or eligibility for social services programs. Instructions for Form W-7,

27 Internal Revenue Service, INTERNAL REVENUE SERVICE (September 2019),

28

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1 https://www.irs.gov/pub/irs-pdf/iw7.pdf (last visited May 6, 2020). Federal law

2 generally requires all wage earners to file tax returns and use an identification

3 number. I.R.C. § 1. Individuals apply for an ITIN by submitting a W-7 form and a

4 completed tax return to the IRS. I.R.C. § 6109.

5

39. The ITIN application process is not an immigration enforcement tool,

6 and the IRS is prohibited by law from sharing any taxpayer information with any

7 other governmental agencies. I.R.C. § 6103(a). An estimated 4.3 million adults file

8 taxes using an ITIN. How the Tax Rebate in the Senate’s Bill Compares to Other

9 Proposals, INSTITUTE ON TAXATION AND ECONOMIC POLICY (March 25, 2020),

10 https://itep.org/how-the-tax-rebate-in-the-senates-bill-compares-to-other-proposals/

11 (last visited May 6, 2020).

12

40. The IRS estimates ITIN tax filers pay over $9 billion in annual payroll

13 taxes. IRS Nationwide Tax Forum: Immigration and Taxation, INTERNAL REVENUE

14 SERVICE (2014), https://www.irs.gov/pub/irs-utl/20-Immigration%20and%20

15 Taxation.pdf (last visited May 6, 2020).

16

41. In addition, the IRS notes that the following categories of individuals

17 who are present in the United States legally must pay taxes but may not be eligible

18 for a SSN and may obtain an ITIN:

19

a. A non-resident foreign national who owns or invests in a U.S.

20

business and receives taxable income from that U.S. business, but

21

lives in another country;

b. A foreign national student who qualifies as a resident of the United

22

States (based on days present in the United States);

23

c. A dependent or spouse of a U.S. citizen or lawful permanent resident;

24

and

d. A dependent or spouse of a foreign national on a temporary visa such

25

as a H-4 and J-2.

26 Individual Taxpayer Identification Number, INTERNAL REVENUE SERVICE (April 16,

27 2020), https://www.irs.gov/individuals/individual-taxpayer-identification-number

28

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1 (last visited May 6, 2020). See also Affidavit of Attorney Vivian Khalaf, Esq.,

2 attached hereto and incorporated herein as Exhibit C.

3

42. There are 1.2 million Americans married to immigrants who do not hold

4 Social Security numbers. See Dkt No. 1 at ¶ 35.

5

43. Of the 1.2 million Americans, those who file joint tax returns and are not

6 in the military are ineligible for a Stimulus Check and deprived of the rights,

7 privileges, immunities, and/or benefits conferred upon all other U.S. citizens who

8 otherwise qualify. See Dkt No. 1 at ¶ 36.

9

44. The Migration Policy Institute reported that 4.1 million U.S. Citizen

10 children live with at least one undocumented immigrant parent. See Dkt No. 1 at ¶ 61.

11

45. Plaintiff and the Putative Class have no adequate remedy at law and are

12 suffering irreparable harm. Defendants will suffer no harm should this Court grant an

13 injunction prohibiting enforcement of the Exclusion Provision as written, which is

14 discriminatory on its face, and amending it as described hereinbelow. Meanwhile, the

15 imminent harm to Plaintiff and the Putative Class is severe. The public interest is

16 clearly served by this Court acting to order recognition of U.S. Citizens and their U.S.

17 children consistent with the manner in which the Federal Government treats similarly

18 situated U.S. Citizens, without regard to their mixed family status. Only prompt

19 action by this federal Court ordering declaratory and injunctive relief will serve the

20 public interest.

21

46. Injunctive relief is appropriate under the circumstances because

22 Defendants have intentionally excluded otherwise eligible U.S. Citizens from

23 receiving the Stimulus Check, and more damaging, denied them a benefit conferred

24 upon all other otherwise qualifying U.S. Citizens simply because of whom they chose

25 to marry, which is facially discriminatory and retributive.

26

47. Plaintiff and the Putative Class have suffered, and will continue to

27 suffer, immediate and irreparable harm by reason of the conduct described above.

28

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1

48. Such immediate and irreparable harm includes, but is not limited to, the

2 loss of a minimum of $1,200.00 U.S. Dollars which has made many, if not all, of the

3 putative class members fraught with worry and despair that they will be unable to

4 sustain the basic necessities of life for themselves and their children if they are denied

5 the benefits available to other similarly situated Americans who are not married to

6 immigrants filing jointly with ITIN numbers in light of the COVID pandemic which

7 the CARES Act sought to provide emergency response; a loss of privacy, due

8 process, equal protection, reputation in the community, and dignity. See Exhibit A;

9 see also Exhibit B.

10

49. Plaintiff’s rights cannot be secured except through injunctive relief.

11 Defendants will suffer no harm or loss, if compelled to act in accordance with the

12 law, by refraining from discriminating against U.S. Citizens based upon their

13 marriage to immigrants and there is a reasonable likelihood that the Plaintiff will

14 succeed on the merits of his claims.

15

50. As a result of the foregoing, Plaintiff and the Putative Class request this

16 Honorable Court consider this Motion on an emergency basis and grant a temporary

17 restraining order prohibiting the Defendants from enforcing the Exclusion Provision

18 in the CARES Act and striking down the text of the Exclusion Provision as

19 unconstitutional in order to afford all citizens the rights and benefits to which they are

20 entitled by the Constitution of the United States.

21

LAW

22

The standard for issuing a temporary restraining order is substantially identical

23 to the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v.

24 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A “plaintiff seeking a

25 preliminary injunction must establish that he is likely to succeed on the merits, that he

26 is likely to suffer irreparable harm in the absence of preliminary relief, that the

27 balance of equities tips in his favor, and that an injunction is in the public interest.”

28

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1 Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)

2 (citation omitted).

3

“[I]f a plaintiff can only show that there are ‘serious questions going to the

4 merits’—a lesser showing than likelihood of success on the merits—then a

5 preliminary injunction may still issue if the ‘balance of hardships tips sharply in the

6 plaintiff's favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc.

7 v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the

8 Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis by Shell

9 Offshore)). Hawai'i v. Trump, 241 F. Supp. 3d 1119, 1134 (D. Haw. 2017).

10

In other words, even where a plaintiff is unable to show a likelihood of success

11 on the merits, but can at least demonstrate there are serious questions going to the

12 merits, and the balance of hardships strongly favors the plaintiff, a court may grant

13 preliminary injunctive relief so long as there is still a showing on the last two

14 elements. See id. at 1131, 1134-35 (“a stronger showing of one element may offset a

15 weaker showing of another. For example, a stronger showing of irreparable harm to

16 plaintiff might offset a lesser showing of likelihood of success on the merits.”).

17 Anhing Corp. v. Thuan Phong Co., No. 13-cv-05167-BRO-MANx, 2013 U.S. Dist.

18 LEXIS 190829, at *8 (C.D. Cal. Dec. 26, 2013).

19

For the reasons stated below, Plaintiff and the Putative Class easily meet the

20 elements of a prima facie case for injunctive relief and the balance of harm weighs

21 heavily in their favor.

22

Where circumstances are such that even the time needed to hear a request for a

23 preliminary injunction is too long to prevent irreparable harm, a temporary restraining

24 order (T.R.O.) may issue while a court considers a request for a preliminary

25 injunction. See 11A Charles Alan Wright, et al., Federal Practice and Procedure §

26 2951 (3d ed. 2019).

27

28

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1

Further, the fact that this Plaintiff seeks relief applicable to the entire Putative

2 Class in the form of a temporary restraining order prior to a ruling on class

3 certification does not bar relief for Plaintiff and the Putative Class. When a plaintiff

4 requests preliminary injunctive relief before class certification has been decided, a

5 court may consider the harm to the putative class and grant classwide appropriate

6 preliminary injunctive relief, particularly when, as in this case, there is alleged

7 classwide harm and conduct aimed at a class of persons. See J.L. v. Cissna, 341 F.

8 Supp. 3d 1048, 1070 (N.D. Cal. 2018); Chhoeun v. Marin, 306 F. Supp. 3d 1147,

9 1164 (C.D. Cal. 2018) (granting a classwide injunction before certification when “an

10 injunction is necessary to forestall harm to putative class members that is likely to

11 transpire before the parties can litigate a motion for class certification.” Doe v.

12 Trump, 418 F. Supp. 3d 573, 603 (D. Or. 2019).

13

Federal Rule of Civil Procedure 23(b)(2) “does not restrict class certification to

14 instances when final injunctive relief issues” and allows for certification of a

15 conditional class to grant preliminary injunctive relief. Id.; see also Howe v. Varity

16 Corp., 896 F.2d 1107, 1112 (8th Cir. 1990) (affirming grant of a preliminary

17 injunction to a conditional class).

18

In addition, “there is no bar against class-wide, and nationwide relief in federal

19 district or circuit court when it is appropriate,” Bresgal v. Brock, 843 F.2d 1163, 1170

20 (9th Cir. 1987), and here the class-wide, nationwide relief is necessary to afford

21 the class members the relief to which they are entitled. Doe v. Trump, No. 19-36020,

22 2020 U.S. App. LEXIS 14169, at *46 (9th Cir. May 4, 2020).

23

ARGUMENT

24 I. Plaintiff and the Putative Class Easily Meets the Elements of a Prima

25

Facie Case for Injunctive Relief and the Balance of Harm Weighs Heavily

in Their Favor.

26

Plaintiff Doe meets the standard for injunctive relief and the balance of harms

27 weighs heavily in her favor. First, she has a substantial likelihood of success on the

28

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1 merits because the Exclusion Provision is unlawful several times over: Among other

2 things, it violates the First Amendment to the United States Constitution by infringing

3 on Plaintiff’s right to privacy as it relates to her fundamental right to marriage; and it

4 violates rights secured to Plaintiff by the Fifth and Fourteenth Amendments to the

5 United States Constitution including the right to due process of law, the right to equal

6 protection under the law, and the penumbra of privacy rights created by the First,

7 Third, Fourth, and Fifth Amendments that creates a fundamental right to marriage.

8

Second, Plaintiff and the putative class will suffer irreparable harm if relief is

9 not granted: the Exclusion Provision imposes direct economic harm during an

10 ongoing Pandemic to U.S. Citizens and their U.S. Citizen children. Third, the balance

11 of equities tips in Plaintiff’s favor. The Defendants will suffer no hardship if the

12 Exclusion Provision is enjoined because the Government has intentionally excluded

13 otherwise eligible U.S. Citizens from receiving the Stimulus Check and more

14 damaging, excluding them from a benefit conferred upon all other U.S. Citizens

15 simply because of whom they chose to marry with no justification. Finally,

16 remedying constitutional and statutory violations is in the public interest.

17

A. Plaintiff and the Putative Class Have a Likelihood of Success on the

18

Merits of Their Claim That the Exclusion Provision of the CARES

Act Violates the First, Fifth, and Fourteenth Amendments.

19

Defendants, acting under color of law, have violated rights secured to Plaintiff

20 by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution including the

21 right of association, the right to due process of law, the right to equal protection under

22 the law, and the penumbra of privacy rights created by the First, Third, Fourth, and

23 Fifth Amendments that creates a fundamental right to marriage. See Dkt. 1 at ¶ 70.

24 Specifically, Defendants have failed, as applied to Plaintiff (and other similarly

25 situated individuals), to treat her as equal to her fellow United States citizens based

26 solely on whom she chose to marry. See id. Accordingly, Defendants have

27 discriminated against Plaintiff on the basis of her fundamental right of marriage, a

28

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1 right guaranteed to her under the Constitution of the United States. See id. at ¶¶ 72-

2 73. Specifically, the CARES Act provision at issue, on its face and as applied, or

3 threatened to be applied, violates the First Amendment, the Due Process Clause of the

4 Fifth Amendment, and Fourteenth Amendment. See id. at ¶ 75. Defendants cannot

5 show a compelling interest justifying their policies of discrimination based on

6 marriage, and they cannot show that these classifications are necessary to serve any

7 legitimate governmental interest. See id. at ¶ 98. The CARES Act singles out law-

8 abiding and tax-paying U.S. Citizens by excluding them from a benefit they and their

9 children would otherwise be entitled to with no compelling interest justifying the law

10 and without serving any legitimate governmental interest. See id. at ¶ 116. Section

11 6428 is not narrowly tailored to advance a compelling government interest, nor is it

12 rationally related to any legitimate government interest. See id. at ¶ 117.

13

Furthermore, Defendants discriminate against Plaintiff and the Putative Class

14 on the basis of their spouses’ alienage. Defendants have no compelling interest

15 justifying their policies of discrimination based on the marriage to a non-U.S. Citizen,

16 and they cannot show that this justification is necessary to serve any legitimate

17 governmental interest. Defendants treat Plaintiff differently from U.S. Citizens who

18 marry other U.S. Citizens, who are otherwise similarly situated. Graham v.

19 Richardson, 403 U.S. 365, 372 (1971) (footnotes and citations omitted).

20 Moreover, similarly to the facts at hand, the unfair treatment of minor children

21 relating to Social Security benefits based on their parentage has found the federal

22 government to be in violation of the U.S. Constitution. Griffin v. Richardson, 346 F.

23 Supp. 1226 (D. Md. 1972). Richardson v. Davis, 409 U.S. 1069 (1972), summarily

24 aff'g 342 F.Supp. 588 (Conn.).

25

Further, the Due Process Clause of the Fifth Amendment prohibits, as to the

26 federal government, statutes creating arbitrary discriminations which have no rational

27 basis in legitimate governmental purposes. While there is no specific equal protection

28

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1 guarantee applicable to the federal government, Equal Protection standards of the

2 Fourteenth Amendment have been imported into the Due Process Clause of the Fifth

3 Amendment. Davis v. Richardson, 342 F. Supp. 588, 591 (D. Conn. 1972),

4 summarily aff’d in Richardson v. Davis, 409 U.S. 1069 (1972) , citing Bolling v.

5 Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954) (“The Fifth Amendment [ .

6 . .] does not contain an equal protection clause as does the Fourteenth Amendment

7 which applies only to the states. But the concepts of equal protection and due process,

8 both stemming from our American ideal of fairness, are not mutually exclusive. The

9 ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness

10 than ‘due process of law,’ and, therefore, we do not imply that the two are always

11 interchangeable phrases. But, as this Court has recognized, discrimination may be so

12 unjustifiable as to be violative of due process.”); Richardson v. Belcher, 404 U.S. 78,

13 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611,

14 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); Bolton v. Harris, 130 U.S. App. D.C. 1, 395

15 F.2d 642 (1968). That is the case here.

16

In finding an immediate need to provide Social Security payments to an

17 illegitimate child based on her impoverished needs, the Griffin Court determined that

18 any “delay in determining the constitutionality of the law under which plaintiff has

19 been denied benefits would serve no useful purpose. A deferred recovery of a lump

20 sum amount by this plaintiff would do nothing to alleviate her immediate need,

21 especially in view of the fact that plaintiff here […] [and] the class as a whole” would

22 likely suffer from impoverished conditions, a “common observation teaches that

23 illegitimacy and indigency are often handmaidens.” Griffin 346 F. Supp. 1226, 1232

24 (D. Md. 1972). The same is true in the case at hand as it relates to mixed-status

25 families, and the severity of impoverishment is readily apparent per the Department

26 of Labor’s statistics. See Foreign-Born Workers: Labor Force Characteristics –

27 2018, BUREAU OF LABOR STATISTICS (May 16, 2019), https://www.bls.gov/news.

28

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1 release/pdf/forbrn.pdf (last visited May 6, 2020). Delaying the payment to U.S.

2 Citizen children, including Plaintiff’s children, would do nothing to alleviate her

3 immediate need during this Pandemic. Accordingly, the emergency need of the

4 CARES Act relief cannot be overstated. Thus, the equities of this case, similarly to

5 Griffin, do not favor a delay.

6

In applying the standard of review, the Griffin Court explained:

7

A statutory classification in the area of social welfare is

8

consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious

9

discrimination.’ Dandridge v. Williams, 397 U.S. 471, 487 [90

10

S. Ct. 1153, 1162, 25 L. Ed. 2d 491]. While the present case, involving as it does a federal statute, does not directly implicate

11

the Fourteenth Amendment's Equal Protection Clause, a

12

classification which meets the test articulated in Dandridge is

perforce consistent with the due process requirement of the

13

Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499 [74

14

S. Ct. 693, 694, 98 L. Ed. 884].

15 Griffin v. Richardson, 346 F. Supp. 1226, 1232 (D. Md. 1972) , quoting Richardson

16 v. Belcher, 404 U.S. 78, 81 (1971) .

17

As the Supreme Court of the United States instructs, though the latitude given

18 to lawmakers to economic and social regulation is necessarily broad, when state

19 statutory classifications approach sensitive and fundamental personal rights, this

20 Court must exercise strict scrutiny. Griffin v. Richardson, 346 F. Supp. 1226, 1233

21 (D. Md. 1972) at 172-73, citing Brown v. Board of Education, 347 U.S. 483 [74 S.

22 Ct. 686, 98 L. Ed. 873] (1954); Harper v. Virginia [State] Board of Elections, 383

23 U.S. 663 [86 S. Ct. 1079, 16 L. Ed. 2d 169] (1966). There can be no doubt that the

24 allegations complained of by Plaintiff and the Putative Class affect their fundamental

25 rights and are subject to strict scrutiny. Levy v. Louisiana, 391 U.S. 68, 88 S. Ct.

26 1509, 20 L. Ed. 2d 436 (1968) (The rights asserted involved “the intimate, familial

27 relationship between a child and his own mother” and noting that it has “been

28

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1 extremely sensitive when it comes to basic civil rights [citations omitted] and [has]

2 not hesitated to strike down an invidious classification.”).

3

In this case, both the fundamental right of U.S. Citizens and the invidious

4 classification based on the alienage status of their spouse leaves no doubt that the

5 Exclusion Provision in the CARES Act is subject to strict scrutiny and thus is

6 unconstitutional as written and as applied.

7

Accordingly, the CARES Act violates the First Amendment to the U.S.

8 Constitution; the Due Process Clause of the Fifth Amendment to the U.S.

9 Constitution; the rights of Plaintiff and the Putative Class to Equal Protection and

10 Privileges and Immunities under the Fourteenth Amendment to the U.S. Constitution

11 under the Reverse Incorporation Doctrine; and the well-established fundamental right

12 to marry.

13

B. Plaintiff and the Putative Class Will Suffer Irreparable Hard If

14

Relief Is Not Granted.

15

Irreparable harm may be presumed with the finding of a violation of the First

16 Amendment. See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)

17 (“The loss of First Amendment freedoms, for even minimal periods of time,

18 unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347,

19 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)); see also Washington v. Trump, 847

20 F.3d 1151, 1169 (9th Cir. 2017)(citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

21 Cir. 2012) (“It is well established that the deprivation of constitutional rights

22 ‘unquestionably constitutes irreparable injury.’”)) (additional citations omitted).

23 Hawai'i v. Trump, 241 F. Supp. 3d 1119, 1139 (D. Haw. 2017).

24

The First Amendment to the U.S. Constitution states: “Congress shall make no

25 law respecting an establishment of religion, or prohibiting the free exercise thereof;

26 or abridging the freedom of speech, or of the press; or the right of the people

27

28

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1 peaceably to assemble, and to petition the Government for a redress of grievances.”

2 U.S. Const. amend. I. See Dkt. 1 at ¶105.

3

Specific guarantees in the Bill of Rights have penumbras, formed by

4 emanations from those guarantees that help give them life and substance. Various

5 guarantees create zones of privacy. The right of association contained in the

6 penumbra of the First Amendment is one of those fundamentally protected zones of

7 privacy. Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965);

8 See Dkt. 1 at ¶ 106. The right of privacy first achieved constitutional stature in

9 Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965),

10 wherein the Griswold Court began by noting that “specific guarantees in the Bill of

11 Rights have penumbras, formed by emanations from those guarantees that help give

12 them life and substance.” 381 U.S. at 484. See Dkt. 1 at ¶ 107. The Griswold opinion

13 stressed the sanctity of marriage lying within the zone of privacy created by several

14 fundamental constitutional guarantees. Griswold v. Connecticut, 381 U.S. 479, 485,

15 85 S. Ct. 1678, 1682 (1965); See Dkt. 1 at ¶ 108.

16

Defendants discriminate against Plaintiff and the Class on the basis of their

17 protected sanctity of marriage--a fundamental right. See Dkt. 1 at ¶ 109. As a direct

18 and proximate result of 26 U.S.C. § 6428 (g)(1)(B), the federal government treats

19 Plaintiff, who is legally married, differently than other married couples simply

20 because their spouses lack a social security number. As a result of the disparate

21 treatment, Plaintiff is excluded from receiving a Stimulus Check. 26 U.S.C. § 6428

22 (g)(1)(B) also infringes on Plaintiff’s right to enjoy all the benefits of marriage

23 afforded to other married couples. See Dkt. 1 at ¶ 111. The Exclusion Provision of the

24 CARES, on its face and as applied, or threatened to be applied, violates the First

25 Amendment of the U.S. Constitution. See Dkt. 1 at ¶ 120. Accordingly, Plaintiff and

26 the putative class have lost their First Amendment rights to freedom of privacy, and

27 have been discriminated against based on whom they chose to marry, which

28

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1 unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96

2 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)); see also Washington, 847 F.3d at 1169 (citing

3 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).

4

A threshold question is whether the Plaintiff and the Putative Class is entitled

5 to injunctive relief to redress the imminent and currently ongoing harm faced as a

6 result of their exclusion from the CARES Act. The CARES Act is intended to

7 provide emergency assistance, which Defendants have categorically deprived the

8 Plaintiffs of. S. 3548, 116th Cong. (2020) (emphasis added). The CARES Act

9 expressly acknowledges the grave emergency circumstances that U.S. citizens

10 making under $75,000.00 face as a result of the Pandemic, yet it pointedly carves out

11 Plaintiff and the Putative Class, which consists of up to 1.2 million Americans. If

12 Plaintiff and the Putative Class are denied immediate injunctive relief, their families

13 will continue to struggle to meet their financial obligations for the basic necessities of

14 human life, including but not limited to avoiding starvation for them and their

15 children, homelessness, and other dire consequences affecting their liberty and safety,

16 all of which the CARES Act was designed to address for qualifying Americans as a

17 result of the Pandemic. See Exhibit A; see also Exhibit B.

18

Arguably, the most troubling part of the Exclusion Provision is the effect on

19 the lawful immigration process. Specifically, the requirement for a couple to provide

20 bona fide proofs of the marriage. This is evidenced by the Department of Homeland’s

21 Security’s requirement that the couple demonstrate that the marriage is bona fide by,

22 including but not limited to, “Documentation showing that you and your spouse have

23 combined your financial resources…You must submit clear and convincing evidence

24 that you and your spouse entered into the marriage in good faith and not for

25 immigration purposes if you married your spouse while your spouse was the subject

26 of an exclusion, deportation, removal, or rescission proceeding (including during the

27 judicial review of any one of these proceedings).” See Exhibit D.

28

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Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 26 of 31 Page ID #:87

1

In Matter of Laureano, a BIA precedent case states in pertinent part: (2) In

2 determining whether a marriage is fraudulent for immigration purposes, the conduct

3 of the parties after the marriage is relevant as to their intent at the time of marriage;

4 evidence to establish intent may take many forms, including, but not limited to, proof

5 that the beneficiary has been listed as the petitioner's spouse on insurance policies,

6 property leases, income tax forms, or bank accounts; and testimony or other

7 evidence regarding courtship, wedding ceremony, shared residence and experiences.

8 See 19 I. & N. Dec. 1, 1, 1983 BIA LEXIS 18, *1 (B.I.A. December 12, 1983)

9 [emphasis added].

10

The Exclusion Provision unjustly and unfairly deprives mixed status families

11 of the stimulus rebate for filing joint tax returns, the same joint tax returns that the

12 United States Citizenship and Immigration Services (hereinafter the “USCIS”) views

13 as indicia of a real marriage. In fact, couples in this situation are doubly penalized.

14 Not only are they precluded from receiving a stimulus rebate, but USCIS is currently

15 closed, meaning mixed-status couples who have a marriage-based petition pending

16 with USCIS are stuck in administrative limbo, as the undocumented spouse cannot

17 complete the process to become a lawful permanent resident. See Schiffman-Shilo,

18 supra. This CARES Act turns Plaintiff and the Putative class “into second-class

19 citizens” for marrying immigrants. See id.

20

The irreparable harm of requiring U.S. Citizens to file their 2019 and/or amend

21 their 2018 tax returns to file separately in order to receive the Stimulus Check is

22 diametrically opposed to the immigration policy embodied in the Immigration and

23 Nationality Act that provides U.S. Citizen’s a path to obtaining lawful citizenship for

24 their spouses. A dire consequence to the sanctity of marriage, this Exclusion

25 Provision necessitates immediate redress. Accordingly, Plaintiff and the Putative

26 Class will be irreparably harmed if relief is not granted.

27

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 27 of 31 Page ID #:88

1

C. The Balance of Equities and the Public Interest Favors the Relief

2

Plaintiff and the Putative Class Are Requesting.

3

The final step in determining whether to grant the Plaintiff and the Putative

4 Class’s Emergency Motion is to assess the balance of equities and examine the

5 general public interests that will be affected. Hawai'i v. Trump, 241 F. Supp. 3d 1119,

6 1139 (D. Haw. 2017).

7

The balance of the equities and public interest factors tip decidedly in favor of

8 Plaintiff. The harms the Exclusion Provision inflicts are immediate and severe, and

9 “it is always in the public interest to prevent the violation of a party’s constitutional

10 rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).

11

Plaintiff’s likelihood of success is high, as Defendants have intentionally

12 excluded otherwise eligible U.S. Citizens from receiving the Stimulus Check and

13 more damaging, excluding them from a benefit conferred upon all other U.S. Citizens

14 simply because of whom they chose to marry, which is facially discriminatory and

15 retributive. There is no harm to the Defendants by this Court granting an injunction

16 prohibiting enforcement of the Exclusion Provision.

17

Meanwhile, the harm to Plaintiff and the Putative Class is severe. Defendants

18 may and have argued that Plaintiff and the Putative Class could qualify for the

19 Stimulus Check if they were to amend or file their 2018 and/or 2019 returns to

20 married filing separately. However, requiring Plaintiff and those similarly situated to

21 be forced to amend and re-file tax returns will cause additional expenses and delays

22 that would likely eclipse and exceed the benefit of the Stimulus Check. See Exhibit C.

23 Namely, the spouses will be required to file two separate tax returns for each

24 applicable tax year and to pay the preparation expenses of those returns. Next,

25 married filing jointly enjoys the lowest tax rate, while married filing separately has

26 the most dis-favored treatment. See Blackwell, supra; see also Woroch, supra. Thus,

27 for Plaintiff and the Putative Class, filing separately and/or amending their returns to

28

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Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 28 of 31 Page ID #:89

1 file separately will likely result in additional taxes being due. In addition, when one

2 files married filing separately, the filer is unable to claim: Education benefits; Earned

3 Income Credit (EIC); Child and Dependent Care Credit (usually); Adoption Credit

4 (usually); and the personal exemptions, itemized deductions, the Child Tax Credit,

5 and capital losses are all reduced by half. Id. Plus, both spouses cannot do itemized

6 deductions and thus one spouse will be limited to taking only standard deductions. Id.

7 On top of that, those that live in the community property states, like Plaintiff here, of

8 Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or

9 Wisconsin, have to deal with community property allocations and adjustments, which

10 adds extra work and complexity to tax preparation. See Publication 555 (03/2020),

11 Community Property, INTERNAL REVENUE SERVICE (March 2020), https://www.irs.

12 gov/publications/p555 (last visited May 6, 2020). However, potentially the gravest

13 harm faced by Plaintiff and those similarly situated is the fact that in the legal

14 immigration context, tax returns with the married filing jointly status are considered

15 indicia of a bona fide marriage, entitling the immigrant spouse a legal path of

16 immigration, while married filing separately creates a presumption of a marriage only

17 for the purposes of immigration status. See Exhibit D and Exhibit C. Thus, the

18 Defendants’ encouragement of Plaintiff and those similarly situated to file tax returns

19 separately, which can then detrimentally affect lawful immigration pathways for

20 immigrant spouses, is nothing short of an appalling assault on legal immigration and

21 the constitutional rights of U.S. citizens to marry whom they love, regardless of

22 immigration status. Justice cannot stand for such a result-period.

23

The public interest is clearly served by this Court acting to order recognition of

24 U.S. Citizens and their children consistent with the manner in which the Federal

25 Government treats similarly situated U.S. Citizens, without regard to their marital

26 status. Only prompt action by this Federal Court ordering declaratory and injunctive

27 relief will serve the public interest.

28

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 29 of 31 Page ID #:90

1

In sum, Plaintiff has met her burden of establishing the threshold requirements

2 for a temporary restraining order, as well as for a preliminary injunction.

3

PRAYER FOR RELIEF

4

WHEREFORE, Plaintiff JANE DOE, individually and on behalf of the

5 Putative Class, by and through her attorneys, Blaise & Nitschke, P.C., prays for relief

6 as follows:

7

a. An Order granting class certification, or in the alternative provisional class

8

certification for purposes of this Motion;

9

b. An Order granting Blaise & Nitschke, P.C. and *Khalaf & Abuzir, LLC as

10

class counsel, or in the alternative provisional class counsel for purposes of

11

this Motion;

12

c. A temporary, preliminary and/or permanent injunction against the

13

Defendants, and all those acting in concert, prohibiting enforcement of the

14

laws as written and instead applying the provision as follows;

15

i. Issuing a Temporary Restraining Order directing that Section 2101 of

16

the CARES Act be applied as follows:

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

17

Internal Revenue Code of 1986 is amended by inserting after section

18

6427 the following new section:

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

19

[. . .]

20

“(h) Identification Number Requirement.—

“(1) IN GENERAL.—No credit shall be allowed under subsection (a)

21

to an eligible individual who does not include on the return of tax for

22

the taxable year—

“(A) such individual’s valid identification number,

23

“(B) in the case of a joint return, the valid identification number of

24

such individual’s spouse for at least one of the filing spouses, and

“(C) in the case of any qualifying child taken into account under

25

subsection (b)(1)(B), the valid identification number of such

26

qualifying child.

“(2) VALID IDENTIFICATION NUMBER.—

27

28

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1

“(A) IN GENERAL.—For purposes of paragraph (1), the term ‘valid

2

identification number’ means a social security number (as such term is defined in section 24(h)(7)).

3

ii. Issuing a Preliminary and Permanent Injunction amending the

4

CARES Act as identified above and enjoining Defendants from affixing any new terms to the CARES Act, or any future legislation

5

designed to provide economic stimulus to United States citizens that

6

excludes mixed immigration status families. d. A determination that the Exclusion Provision, as enacted by Section 2101 of

7

the CARES Act, is unconstitutional and should not be enforced;

8

e. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

9

Sec. 6428(g), is subject to strict scrutiny;

10

f. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

11

Sec. 6428(g), as applied to the Plaintiff, violates the constitutional and

12 statutory rights of Plaintiff;

13

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

14

that are violative of the protections afforded to Plaintiff and those similarly

15 situated under the United States Constitution, federal statutes, and those

16 cases interpreting the same under which this Court is bound under the

17 principles of stare decisis;

18 h. Enter an Order requiring the Defendants to hold in escrow or otherwise

19 earmark sufficient funds for the issuance of Stimulus Checks to members of
20 the Class;
21 i. For an award of attorneys’ fees and costs; and
22 j. Such other and further relief as this court may deem just and proper.
23

24 DATED: May 8, 2020 25 26 27

Respectfully submitted,
JANE DOE, individually and on behalf of others similarly situated.

28

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Case 8:20-cv-00858-SVW-JEM Document 11 Filed 05/08/20 Page 31 of 31 Page ID #:92

1

/s/ Heather L. Blaise

2

HEATHER L. BLAISE, ESQ. (SBN 261619)

123 N. Wacker Drive, Suite 250

3

Chicago, IL 60606

4

Telephone: 312-448-6602

5

Email: hblaise@blaisenitschkelaw.com

6

Attorney for Plaintiff

7

BLAISE & NITSCHKE, P.C.

8

Lana B. Nassar (IL Bar No. 6319396) *

9

Thomas J. Nitschke (IL Bar No. 6225740) *

Elisabeth A. Gavin (IL Bar No. 6297740) *

10

123 N. Wacker Drive, Suite 250

11

Chicago, IL 60606

12

T: (312) 448-6602

F: (312) 803-1940

13

lnassar@blaisenitschkelaw.com

14

15

KHALAF & ABUZIR, LLC

16

Vivian Khalaf (IL Bar No. 6210668) *

Omar Abuzir (IL Bar No. 6257708) *

17

20 N. Clark, Suite 720

18

Chicago, IL 60602

19

T: (708)-233-1122

F: (708)-233-1161

20

vkhalaf@immigrationjd.com

21

22

* Application for admission pro hac vice

23

forthcoming

24

25

26

27

28

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Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 1 of 11 Page ID #:93

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 DOC (DFMx) Assigned to the Hon. David O. Carter
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT
Action Filed: May 6, 2020

24

NOW COMES Plaintiff, Jane Doe, (hereinafter “Doe” or “Plaintiff”),

25 individually and on behalf of the proposed class, by and through her attorneys, Blaise

26 & Nitschke, P.C. and hereby respectfully request that this Court grant her Class

27 Certification Or In The Alternative Provisional Class Certification for the Purposes of

28

- 1 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 2 of 11 Page ID #:94

1 Plaintiff’s Application for Her Emergency Motion for a Temporary Restraining

2 Order, Preliminary Injunction and/or Declaratory Judgment Emergency Motion, and

3 appoint her as named Plaintiff in this litigation, and appoint her undersigned attorneys

4 as class counsel.

5

INTRODUCTION

6

This Motion incorporates by reference Plaintiff’s Motion and Memorandum of

7 Law in Support of Application for Plaintiff’s Emergency Motion for a Temporary

8 Restraining Order, Preliminary Injunction and/or Declaratory Judgment (hereinafter

9 “Emergency Motion”) filed simultaneously herein.

10

CLASS DEFINITION

11

This federal class action seeks to require this Honorable Court to a.) Issue an

12 Order granting class certification, or in the alternative provisional class certification

13 for purposes of this Emergency Motion; b.) Issue an Order designating Blaise &

14 Nitschke, P.C. and *Khalaf & Abuzir, LLC as class counsel, or in the alternative

15 provisional class counsel for purposes of this Motion; c.) Issue a temporary and/or

16 preliminary injunction against the Defendants and all those acting in concert with

17 them prohibiting enforcement of the laws, as written and instead applying as follows:

18 striking through 26 U.S.C. § 6428 (g)(1)(B), enacted as part of the CARES Act, to

19 permit a valid identification number for at least one of the filing spouses rather than

20 both; d.) A determination that the Exclusion Provision as enacted by Section 2101 of

21 the CARES Act, is unconstitutional and should not be enforced; e.) Issue a

22 declaratory judgment that CARES Act that Section 2101 of the CARES Act, enacting

23 Sec. 6428(g), is subject to strict scrutiny; f.) Issue a declaratory judgment that Section

24 2101 of the CARES Act, enacting Sec. 6428(g), as applied to the Plaintiff violates the

25 constitutional and statutory rights of Plaintiff and the Putative Class; g.) Issue a

26 declaratory judgment striking from CARES Act those provisions that are violative of

27 the protections afforded to Plaintiff and those similarly situated under the United

28

- 2 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 3 of 11 Page ID #:95

1 States Constitution, federal statutes, and those cases interpreting the same under

2 which this Court is bound under the principles of stare decisis; h.) Enter an Order

3 requiring the Defendants to hold in escrow or otherwise earmark sufficient funds for

4 the issuance of Stimulus Checks to Plaintiffs and the Putative Class; i.) For an award

5 of attorneys’ fees and costs; and/or j.) Such other and further relief as this court may

6 deem just and proper.

7

Plaintiff, therefore, seeks to certify the following class:

8

All United States Citizens married to immigrants that file

9

joint taxes wherein the immigrant-spouses file tax returns

10

using an Individual Taxpayer Identification Number who

11

would have otherwise qualified for the Stimulus Check.

12

ARGUMENT

13 I. Plaintiff Meets Her Burden for Certification of the Putative Class

14

Under Federal Rule of Civil Procedure 23(a), the four prerequisites for class

15 certification are numerosity, commonality, typicality, and adequate representation.

16 Middlesex Ret. Sys. v. Quest Software, Inc., No. CV 06-6863 DOC (RNBx), 2009

17 U.S. Dist. LEXIS 132650, at *5-6 (C.D. Cal. Sep. 8, 2009). After satisfying the four

18 prerequisites of numerosity, commonality, typicality, and adequacy, a party must also

19 demonstrate either: (1) a risk that separate actions would create incompatible

20 standards of conduct for the defendant or prejudice individual class members not

21 parties to the action; or (2) the defendant has treated the members of the class as a

22 class, making appropriate injunctive or declaratory relief with respect to the class as a

23 whole; or (3) common questions of law or fact predominate over questions affecting

24 individual members and that a class action is a superior method for fairly and

25 efficiently adjudicating the action. Fed. R. Civ. P. 23(b). Middlesex Ret. Sys. v. Quest

26 Software, Inc., No. CV 06-6863 DOC (RNBx), 2009 U.S. Dist. LEXIS 132650, at *6

27 (C.D. Cal. Sep. 8, 2009).

28

- 3 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 4 of 11 Page ID #:96

1

A. Numerosity

2

As for numerosity, “the class is so numerous that joinder of all members is

3 impracticable.” Fed. R. Civ P. 23(a)(1). While the numerosity requirement is satisfied

4 based on the specific facts of each case, it is generally met where the class size

5 exceeds forty (40) members. In addition, the exact size of the class need not be

6 known as long as common sense and judicial experience warrant the assumption that

7 the class is indeed large. See Schwartz, 108 F.R.D. at 281. Middlesex Ret. Sys. v.

8 Quest Software, Inc., No. CV 06-6863 DOC (RNBx), 2009 U.S. Dist. LEXIS

9 132650, at *18 (C.D. Cal. Sep. 8, 2009).

10

In this case, statistics show there are 1.2 million U.S. Citizens married to

11 immigrants who do not hold Social Security numbers. Accordingly, of the 1.2 million

12 Americans who are married to immigrants without Social Security numbers, those

13 who file joint tax returns, are not in the military, and whose adjusted gross income is

14 not excess of the requisite amounts meet the definition of the Putative Class. See Dkt.

15 1 at ¶ 60. Specifically, and as provided in the affidavit of Vivian Khalaf, Esq., most

16 of the Americans who are married to spouses with ITIN numbers file jointly. See

17 Exhibit C; see also Corbin Blackwell, CFP, Married Filing Separately: Marriage Tax

18 Benefit or Penalty?, BETTERMENT (January 25, 2019), https://www.betterment.com/

19 resources/married-filing-separately (last visited May 6, 2020); see also Andrea

20 Woroch, Married Couples: Is It Better to File Taxes Jointly or Separately?, U.S.

21 NEWS MONEY (January 6, 2020), https://money.usnews.com/money/personal-

22 finance/taxes/articles/married-couples-is-it-better-to-file-taxes-jointly-or-separately

23 (last visited May 6, 2020). In fact, most couples she counsels, regardless of whether

24 or not one party has an ITIN, file jointly and not separately; this is, in part, because

25 married filing separately status typically results in application of the highest income

26 tax rate. See id. Indeed, most of her clients who have ITINs and are married to U.S.

27 citizens are usually going through the immigration process in order to obtain legal

28

- 4 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 5 of 11 Page ID #:97

1 status for the immigrant spouses. See id. This legal immigration process requires bona

2 fide proofs of the marriage. See id. The filing of joint tax returns are used as bona fide

3 proof of marriage and are weighted heavily in favor of a bona fide marriage. See

4 Exhibit Instructions for Form I-130, Petition for Alien Relative, and Form I-130 A,

5 Supplemental Information for Spouse Beneficiary at pp. 6-7, Section 5, attached

6 hereto and incorporated herein as Exhibit D; see also Exhibit C. When a couple files

7 separately, it raises the presumption that the marriage may have been entered into

8 solely for purposes of acquiring an immigration benefit and thus, requiring couples to

9 file individually could harm the immigrant spouse’s chances at achieving documented

10 immigrant status. See Halina Schiffman-Shilo, Opinion: The Cruelties of the COVID-

11 19 Stimulus Bill, CITYLIMITS.ORG (April 3, 2020), https://citylimits.org/2020/04/03/

12 opinion-the-cruelties-of-the-covid-19-stimulus-bill/ (last visited May 4, 2020); see

13 also Exhibit C. In her practice, Attorney Khalaf has personally seen separately filed

14 tax returns result in negative consequences for couples going through the immigration

15 process. See id. Moreover, filing separately does not give the filers many benefits and

16 tax credits available for joint filers, and requiring tax returns to be amended to be

17 married filing separately for 2018 and/or 2019 tax years will likely cause additional

18 expenses (and losses of preferred tax rate, credits and deductions) that would eclipse

19 the benefits provided under the CARES Act. See id.

20

Accordingly, the numerosity requirement is met.

21

B. Commonality

22

“Lead Plaintiff must next demonstrate that ‘questions of law or fact common to

23 the class’ warrant class treatment.” Fed. R. Civ. P. 23(a)(2). Middlesex Ret. Sys. v.

24 Quest Software, Inc., No. CV 06-6863 DOC (RNBx), 2009 U.S. Dist. LEXIS

25 132650, at *19 (C.D. Cal. Sep. 8, 2009). “All questions of fact and law need not be

26 common to satisfy this rule. The existence of shared legal issues with divergent

27 factual predicates is sufficient, as is a common core of salient facts coupled with

28

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 6 of 11 Page ID #:98

1 disparate legal remedies within the class.” Hanlon, 150 F.3d at 1019; accord Staton v.

2 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Middlesex Ret. Sys. v. Quest Software,

3 Inc., No. CV 06-6863 DOC (RNBx), 2009 U.S. Dist. LEXIS 132650, at *19-20 (C.D.

4 Cal. Sep. 8, 2009).

5

In the instant matter, Plaintiff’s claims are typical of the claims of the Putative

6 Class, as they are based on the same legal theory and arise from the same unlawful

7 conduct. There are common questions of law and fact affecting the Putative Class

8 which predominate over questions that may affect individual members (hereinafter

9 “Class Members”). These common questions include, but are not limited to:

10

a. Whether and to what extent Defendants have deprived Class

11

Members of their First Amendment Rights; Equal Protection and

12

Due Process under the Law;

13

b. Whether and to what extent Defendants have deprived Class

14

Members of their property interest;

15

c. Whether and to what extent Defendants have deprived Class

16

Members of their rights, privileges, and/or immunities secured by

17

the Constitution of the United States;

18

d. Whether Section 2101 of the CARES Act, which enacted 26

19

U.S.C. § 6428 (g)(1)(B), violates the U.S. Constitution by

20

discriminating against individuals with social security numbers

21

who are married to individuals who lack social security numbers;

22

e. Whether Plaintiffs and the Class suffered harm as a result of

23

Defendants' unlawful policies and/or practices and enforcement of

24

26 U.S.C. §6428 (g)(1)(B), as enacted by the CARES Act;

25

f. Whether Class Members are entitled to actual damages, statutory

26

damages, and/or punitive damages as a result of Defendants'

27

wrongful conduct;

28

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 7 of 11 Page ID #:99

1

g. Whether Class Members are entitled to equitable and injunctive

2

relief to redress the imminent and currently ongoing harm faced as

3

a result of their exclusion from the CARES Act;

4

h. What the scope of a resulting permanent injunction would include;

5

and

6

i. Whether or not Class Members are entitled to Declaratory

7

Judgment relating to their classification and exclusion, among

8

others, under the CARES Act.

9

These nine questions are common to all the Class Members, and

10 accordingly the commonality requirement of Rule 23(a) is met.

11

C. Typicality

12

“The purpose of the typicality requirement is to assure that the interest of

13 the named representative aligns with the interest of the class.” Hanon v.

14 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Under the rule's

15 permissive standards, the representative claims are ‘typical’ if they are

16 reasonably co-extensive with those of absent class members; they need not be

17 substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th

18 Cir. 1998). Thus, this requirement is met where “’each class member's claim

19 arises from the same course of events, and each class member makes similar

20 legal arguments to prove the defendant's liability.’” Armstrong v. Davis, 275

21 F.3d 849, 868 (9th Cir. 2001) (quoting Marisol v. Giuliani, 126 F.3d 372, 376

22 (2d Cir. 1997); Middlesex Ret. Sys. v. Quest Software, Inc., No. CV 06-6863

23 DOC (RNBx), 2009 U.S. Dist. LEXIS 132650, at *22 (C.D. Cal. Sep. 8, 2009).

24

The claim of the Plaintiff here is typical of the class, because Plaintiff

25 and the Class Members all contend they have intentionally been excluded from

26 receiving the Stimulus Check -- a benefit conferred upon all other U.S. Citizens

27 -- simply because of whom they chose to marry, which is facially

28

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 8 of 11 Page ID #:100

1 discriminatory, retributive, and unconstitutional. None of the Class Members

2 have any additional claims under these facts that are not or cannot be raised by

3 Plaintiff given her exact same factual posture.

4

Therefore, the typicality requirement is met.

5

D. Adequate Representation

6

“Adequate representation depends on the qualifications of counsel for the

7 representatives, an absence of antagonism, a sharing of interests between

8 representatives and absentees, and the unlikelihood that the suit is collusive.” Local

9 Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d

10 1152, 1162 (9th Cir. 2001) (internal quotations and citations omitted). The adequacy

11 inquiry requires the court to ask two questions: “(1) Do the representative plaintiffs

12 and their counsel have any conflicts of interest with other class members, and (2) will

13 the representative plaintiffs and their counsel prosecute the action vigorously on

14 behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003).

15 Middlesex Ret. Sys. v. Quest Software, Inc., No. CV 06-6863 DOC (RNBx), 2009

16 U.S. Dist. LEXIS 132650, at *26-27 (C.D. Cal. Sep. 8, 2009).

17

Plaintiff Doe is a U.S. citizen who earns less than $75,000.00 in adjusted gross

18 income, whose children are also U.S. Citizens, and Plaintiff filed her 2018 Federal

19 Tax Return jointly with her spouse, an immigrant who used an Individual Taxpayer

20 Identification Number. See Exhibit A. Accordingly, Plaintiff shares the same interest

21 and injury as the members in the class who would otherwise qualify for the Stimulus

22 Check but for whom they chose to marry.

23

1. Absence of Conflict within the Class

24

Named Plaintiff Jane Doe has no known conflicts with other class members

25 and is willing and able to serve as named Plaintiff in this Action. The undersigned

26 counsel has no known conflicts with other class members and is willing and able to

27 serve as Class Counsel in this Action. See Exhibit B.

28

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 9 of 11 Page ID #:101

1

2. Plaintiff and Counsel will Prosecute Vigorously

2

Further, per Rule 23(a), Plaintiff has retained counsel experienced in handling

3 civil rights cases and class actions. See Exhibit B. Neither Plaintiff nor her counsel

4 have any interests that might cause them not to pursue these claims vigorously.

5 Moreover, the Undersigned Counsel has filed Class Action Complaints representing

6 individuals similarly situated in the Northern District of Illinois; Western District of

7 Wisconsin; and Eastern District of Wisconsin in hopes to bring immediate relief to

8 the Plaintiffs and the Putative Class. Since filing the first Complaint, the undersigned

9 Counsel has received over 4,000 inquiries regarding eligibility. See Exhibit B.

10 Further, many, if not all, of the putative class members are fraught with worry and

11 despair that they will be unable to sustain the basic necessities of life for themselves

12 and their children if they are denied the benefits available to other similarly situated

13 Americans who are not married to immigrants filing jointly with ITIN numbers in

14 light of the COVID-19 pandemic which the CARES Act sought to provide

15 emergency response. See Exhibit B.

16

In sum, the class certification requirements of Rule 23(a) have been met;

17 in the alternative, they have been provisionally met for purposes of this Motion

18 for temporary restraining order, preliminary injunction and/or declaratory

19 relief.

20 II. 21 22

Plaintiff and the Putative Class Satisfy Fed. R. Civ. P. Rule 23(B)(2): This Case Seeks an Injunction and/or Declaratory Judgment Prohibiting the Enforcement of the Exclusion Provision in the CARES Act and Declaring it Unconstitutional.

23

The final requirement for class certification is satisfaction of at least one of the

24 subsections of Rule 23(b). Rule 23(b)(2) allows a class action if “the party opposing

25 the class has acted or refused to act on grounds that apply generally to the class, so

26 that final injunctive relief or corresponding declaratory relief is appropriate respecting

27 the class as a whole.” Rule 23(b)(2) is “’almost automatically satisfied in actions

28

- 9 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 10 of 11 Page ID #:102

1 primarily seeking injunctive relief.’” Hernandez v. Cty. of Monterey, 305 F.R.D. 132,

2 150-51 (N.D. Cal. 2015).

3

Courts have repeatedly held that civil-rights class actions are the paradigmatic

4 23(b)(2) suits, “for they seek classwide structural relief that would clearly redound

5 equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231,

6 1240 (2d Cir. 1979), vacated on other grounds, 442 U.S. 915 (1979); see also

7 Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979). As identified in

8 the leading treatise on class actions:

9

Rule 23(b)(2) was drafted specifically to facilitate relief in civil

rights suits. Most class actions in the constitutional and civil

10

rights areas seek primarily declaratory and injunctive relief on

behalf of the class and therefore readily satisfy Rule 23(b)(2)

11

class action criteria.

12 A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002).

13

Plaintiff satisfies this requirement because she seeks the same injunctive relief

14 for everyone in the class, namely the prohibition of enforcement of the Exclusion

15 Provision in the CARES Act as illustrated throughout.

16

Consequently, Plaintiff respectfully request this Honorable Court certify the

17 Class and appoint the undersigned counsel as Class Counsel, or in the alternative

18 grant provisional class certification and provisional appointment of Class Counsel for

19 purposes of this Emergency Motion for Temporary Restraining Order, Preliminary

20 Injunction and/or Declaratory Judgment; and grant any additional relief this Court

21 deems necessary and just under the circumstances.

22

CONCLUSION

23

WHEREFORE, Plaintiff JANE DOE, individually and on behalf of the

24 Putative Class, by and through her attorneys, Blaise & Nitschke, P.C. prays this

25 Honorable Court certify the Class, or in the alternative provisional class certification

26 for purposes of Plaintiff’s Emergency Motion for a Temporary Restraining Order,

27 Preliminary Injunction and/or Declaratory Judgment.

28

- 10 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-1 Filed 05/08/20 Page 11 of 11 Page ID #:103

1 DATED: May 8, 2020

Respectfully submitted,

2

JANE DOE, individually and on behalf of

3

others similarly situated.

4

5

By: /s/ Heather L. Blaise

HEATHER L. BLAISE, ESQ. (SBN 261619)

6

123 N. Wacker Drive, Suite 250

7

Chicago, IL 60606

8

Telephone: 312-448-6602

Email: hblaise@blaisenitschkelaw.com

9

Attorney for Plaintiff

10

11

BLAISE & NITSCHKE, P.C.

12

Lana B. Nassar (IL Bar No. 6319396) * Thomas J. Nitschke (IL Bar No. 6225740) *

13

Elisabeth A. Gavin (IL Bar No. 6297740) *

14

123 N. Wacker Drive, Suite 250

15

Chicago, IL 60606

T: (312) 448-6602

16

F: (312) 803-1940

17

lnassar@blaisenitschkelaw.com

18

KHALAF & ABUZIR, LLC

19

Vivian Khalaf (IL Bar No. 6210668) *

20

Omar Abuzir (IL Bar No. 6257708) *

21

20 N. Clark, Suite 720

22

Chicago, IL 60602 T: (708)-233-1122

23

F: (708)-233-1161

24

vkhalaf@immigrationjd.com

25

* Application for admission pro hac vice

26

forthcoming

27

28

- 11 -
PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION OR IN THE ALTERNATIVE PROVISIONAL CLASS CERTIFICATION FOR PURPOSES OF PLAINTIFF’S APPLICATION FOR HER EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND/OR DECLARATORY JUDGMENT

Case 8:20-cv-00858-SVW-JEM Document 11-2 Filed 05/08/20 Page 1 of 3 Page ID #:104

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 JANE DOE, individually and on behalf of CASE NO: 8:20-cv-00858 DOC (DFMx)

others similarly situated,

Assigned to the Hon. David O. Carter

12

13

Plaintiff,

AFFIDAVIT OF

14

v.

15 DONALD J. TRUMP, in his individual

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

18 Senator and Sponsor of S. 3548 CARES Act; and STEVEN MNUCHIN, in his
19 individual and official capacity as the

20 Acting Secretary of the U.S. Department of Treasury; CHARLES RETTIG, in his
21 individual and official capacity as U.S.

22 Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE TREASURY;
23 the U.S. INTERNAL REVENUE

24 SERVICE; and the UNITED STATES OF

AMERICA,

25

Defendants.

26

Affiant,

, first duly sworn upon oath and in support of

27 Plaintiff’s, individually and on behalf of others similarly situated, Emergency Motion

28

-1 AFFIDAVIT

EXHIBIT A

Case 8:20-cv-00858-SVW-JEM Document 11-2 Filed 05/08/20 Page 2 of 3 Page ID #:105

Case 8:20-cv-00858-SVW-JEM Document 11-2 Filed 05/08/20 Page 3 of 3 Page ID #:106

1

VERIFICATION BY CERTIFICATION

2 Under penalties of perjury as provided by law pursuant to 28 U.S. Code
3 § 1746, the undersigned certifies that the statements set forth in this instrument are 4 true and correct, except as to matters therein stated to be on information and belief
5 and, as to such matters, the undersigned certifies as aforesaid that she verily believes 6 the same to be true.

7 8 Dated this 7th day of May, 2020.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 3 AFFIDAVIT

Case 8:20-cv-00858-SVW-JEM Document 11-3 Filed 05/08/20 Page 1 of 3 Page ID #:107

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 DOC (DFMx) Assigned to the Hon. David O. Carter AFFIDAVIT OF HEATHER L. BLAISE IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION
Action Filed: May 6, 2020

24

I, Heather L. Blaise, declare:

25

1. I am an attorney at law duly admitted to practice before all courts of the

26 State of California and the United States District Court for the Central District of

27 California, as well as all courts of the State of Illinois and the United States District

28

-1 -

AFFIDAVIT OF HEATHER L. BLAISE IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER,
EXHIBIT B PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11-3 Filed 05/08/20 Page 2 of 3 Page ID #:108

1 Court for the Northern District of Illinois.

2

2. The facts stated herein are based upon my personal knowledge, or,

3 where stated, upon information and belief. If called upon to testify thereto, I could

4 and would competently do so.

5

3. I submit this Declaration in support of Plaintiff’s Emergency Motion for

6 Temporary Restraining Order, Preliminary Injunction, and/or Declaratory Judgment

7 and Plaintiff’s Emergency Motion for Class Certification

8

4. I am an attorney for Plaintiff JANE DOE individually and on behalf of

9 others similarly situated, as it relates to the above-captioned case.

10

5. I certify that my law firm Blaise & Nitschke, P.C. has filed Class Action

11 Complaints regarding the same issues in the Northern District of Illinois, the Western

12 District of Wisconsin, and the Eastern District of Wisconsin.

13

6. I certify that the reason for the multiple filings is to redress the

14 immediate need of the Plaintiff and the Putative Class.

15

7. I certify that at the time of execution of this Affidavit on the 8th day of

16 May 2020, Affiant’s Law Firm, Blaise & Nitschke, P.C. has received not less than

17 4,000 inquiries of eligibility for the putative class since the date of filing the

18 Complaint in the Northern District of Illinois on April 24, 2020.

19

8. I certify that many, if not all, of the putative class members are fraught

20 with worry and despair that they will be unable to sustain the basic necessities of life

21 for themselves and their children if they are denied the benefits available to other

22 similarly situated Americans who are not married to immigrants filing jointly with

23 ITIN numbers in light of the COVID-19 pandemic which the CARES Act sought to

24 provide emergency response.

25

9. I certify that I have complied with the U.S. Attorney General’s Office in

26 the Central District of California, temporary emergency measure necessitated by

27 circumstances related to the spread of COVID-19, by placing the Complaint in the

28

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AFFIDAVIT OF HEATHER L. BLAISE IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11-3 Filed 05/08/20 Page 3 of 3 Page ID #:109

1 mail by Certified Mail on May 8, 2020 and emailing the same to Defendants’

2 Counsel. Our office has not received an issued summons as of today’s date.

3

10. I further certify that Pursuant to the Federal Rules of Civil Procedure,

4 and the Local Rules in the Central District of California, I have advised counsel for

5 the Defendants of the date of filing and substance of this Application by telephone on

6 May 8, 2020. I spoke to Melissa Briggs, Esq. and John Ellis, Esq., who indicated they

7 were the attorneys assigned to the Case. Defendants’ counsel informed me that

8 Defendants oppose this Emergency Motion.

9

11. Further, pursuant to Local Rule 77-1, I certify that I notified the

10 courtroom deputy for the assigned judge, Kelly Davis, in advance, via e-mail at

11 Kelly_Davis@cacd.uscourts.gov.

12

12. Further, I certify that I will call the deputy after filing the Emergency

13 Motion per the Honorable Judge’s standing order and e-mail usacac.civil-

14 tronotice@usdoj.gov regarding the same.

15

13. I certify that I and my law firm Blaise & Nitschke, P.C. are experienced

16 in handling civil rights cases and class actions.

17

14. I declare under penalty of perjury, under the laws of the State of

18 California and of the United States, that the foregoing is true and correct. 19

20

Executed on this the 8th day of May, 2020 in Chicago, Illinois.

21

22

/s/ Heather L. Blaise

23

Heather L. Blaise

24

25

26

27

28

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AFFIDAVIT OF HEATHER L. BLAISE IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11-4 Filed 05/08/20 Page 1 of 3 Page ID #:110

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 Assigned to the Hon. David O. Carter AFFIDAVIT OF VIVIAN KHALAF IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION
Action Filed: May 6, 2020

24

I, Vivian Khalaf, declare:

25

1. I am an attorney at law duly admitted to practice in the State of Illinois

26 and have practiced Immigration Law for 28 years and has been licensed to practice

27 law in Illinois since 1993.

28

-1 -

AFFIDAVIT OF VIVIAN KHALAF IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY
EXHIBIT C INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

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1

2. The facts stated herein are based upon my personal knowledge, or,

2 where stated, upon information and belief. If called upon to testify thereto, I could

3 and would competently do so.

4

3. I am an attorney for Plaintiff JANE DOE individually and on behalf of

5 others similarly situated, as it relates to the above-captioned case.

6

4. I submit this Declaration in support of Plaintiff’s Emergency Motion for

7 Temporary Restraining Order, Preliminary Injunction, and/or Declaratory Judgment

8 and Plaintiff’s Emergency Motion for Class Certification.

9

5. Affiant certifies that the following individuals may receive an Individual

10 Taxpayer Identification Number ("ITIN"):

11

a. A non-resident foreign national who owns or invests in a U.S.

12

business and receives taxable income from that U.S. business, but

13

lives in another country;

14

b. A foreign national student who qualifies as a resident of the United

15

States (based on days present in the United States);

16

c. A dependent or spouse of a U.S. citizen or lawful permanent resident;

17

and

18

d. A dependent or spouse of a foreign national on a temporary visa such

19

as a H-4 and J-2.

20

6. Affiant further certifies that based on her 28 years of immigration practice

21 the following is true:

22

a. Most couples I counsel, regardless of whether or not one party has an

23

ITIN file jointly and not separately;

24

b. This is, in part, because married filing separately status presents the

25

highest income tax rate;

26

27

28

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AFFIDAVIT OF VIVIAN KHALAF IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11-4 Filed 05/08/20 Page 3 of 3 Page ID #:112

1

c. Most of my clients who have ITINs and are married to U.S. citizens

2

are usually going through the immigration process in order to obtain

3

legal status for the immigrant spouses;

4

d. This process requires bona fide proofs of the marriage;

5

e. The filing of joint tax returns are used as bona fide proof of marriage

6

and are weighted heavily in favor of a bona fide marriage;

7

f. When a couple files separately it raises the presumption that the

8

marriage may be entered into solely for purposes of acquiring an

9

immigration benefit and thus, requiring couples to file individually

10

could harm the immigrant spouse’s chances at achieving documented

11

immigrant status. In my practice, I have personally seen separately

12

filed tax returns result in negative consequences for immigration

13

process;

14

g. Filing separately does not give the filers the benefits and tax credits

15

available for joint filers; and

16

h. Requiring tax returns to be amended to be married filing separately

17

for 2018 and 2019 tax years will likely cause additional expenses that

18

would eclipse the benefits provided under the CARES Act.

19

7. I declare under penalty of perjury, under the laws of the State of

20 California and of the United States, that the foregoing is true and correct.

21

22

Executed on this the 8th day of May, 2020 in Chicago, Illinois.

23

24

25 Vivian Khalaf
26

27

28

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AFFIDAVIT OF VIVIAN KHALAF IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND/OR DECLARATORY JUDGMENT AND PLAINTIFF’S EMERGENCY MOTION FOR CLASS CERTIFICATION

Case 8:20-cv-00858-SVW-JEM Document 11-5 Filed 05/08/20 Page 1 of 12 Page ID #:113

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Case 8:20-cv-00858-SVW-JEM Document 11-6 Filed 05/08/20 Page 1 of 2 Page ID #:125

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 DOC (DFMx) Assigned to the Hon. David O. Carter [PROPOSED] TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION
Action Filed: May 6, 2020

24

Defendants, DONALD J. TRUMP, in his individual and official capacity as

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

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

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

28 Department of Treasury; CHARLES RETTIG, in his individual and official capacity
- 1 [PROPOSED] TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Case 8:20-cv-00858-SVW-JEM Document 11-6 Filed 05/08/20 Page 2 of 2 Page ID #:126

1 as U.S. Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE

2 TREASURY; the U.S. INTERNAL REVENUE SERVICE; and the UNITED

3 STATES OF AMERICA (hereinafter collectively referred to as “Defendants”), and

4 all those acting in concert with them are hereby restrained from enforcement of the of

5 26 U.S.C. § 6428 (g)(1)(B) of the S. 3548-Coronavirus Aid, Relief, and Economic

6 Security Act (hereinafter “CARES Act”) so as to deny the Putative Class their

7 Stimulus Checks and are Ordered to hold in escrow or otherwise earmark sufficient

8 funds for the issuance of Stimulus Checks to members of the Class.

9

10 11 Dated:

, 2020

12

_________________

13

United States District Court Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
- 2 [PROPOSED] TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Case 8:20-cv-00858-SVW-JEM Document 11-7 Filed 05/08/20 Page 1 of 4 Page ID #:127

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, individually and on behalf of others similarly situated,
12

13

Plaintiff,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858 DOC (DFMx) Assigned to the Hon. David O. Carter
[PROPOSED] ORDER TO SHOW CAUSE
Action Filed: May 6, 2020

24 Defendants, DONALD J. TRUMP, in his individual and official capacity as
25 President of the United States; MITCH MCCONNELL, in his individual and official
26 capacity as United States Senator and the Sponsor of S. 3548 CARES Act; STEVEN
27 MNUCHIN, in his individual and official capacity as the Acting Secretary of the U.S.
28
- 1 -
[PROPOSED] ORDER TO SHOW CAUSE

Case 8:20-cv-00858-SVW-JEM Document 11-7 Filed 05/08/20 Page 2 of 4 Page ID #:128

1 Department of Treasury; CHARLES RETTIG, in his individual and official capacity

2 as U.S. Commissioner of Internal Revenue; U.S. DEPARTMENT OF THE

3 TREASURY; the U.S. INTERNAL REVENUE SERVICE; and the UNITED

4 STATES OF AMERICA (hereinafter collectively referred to as “Defendants”), are

5 ordered to appear and show cause, if any they have, before the United States District

6 Court for the Central District of California, in the courtroom of the Honorable

7 ____________________, United States District Judge, on the ____ day of

8 _____________, 2020 at o'clock __.m., why a preliminary injunction should not be

9 issued against enforcement of 26 U.S.C. § 6428 (g)(1)(B) of the S. 3548-Coronavirus

10 Aid, Relief, and Economic Security Act (hereinafter “CARES Act”). Specifically:

11 A. A temporary, preliminary and/or permanent injunction against the

12

Defendants, and all those acting in concert, prohibiting enforcement of the

13

laws as written and instead applying the provision as follows:

14

i. Issuing a Temporary Restraining Order directing that Section 2101 of

15

the CARES Act be applied as follows:

16

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

17

Internal Revenue Code of 1986 is amended by inserting after section

18

6427 the following new section:

19

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

20

[. . .]

21

“(h) Identification Number Requirement.—

22

“(1) IN GENERAL.—No credit shall be allowed under subsection (a)

23

to an eligible individual who does not include on the return of tax for

24

the taxable year—

25

“(A) such individual’s valid identification number,

26

“(B) in the case of a joint return, the valid identification number of

27

such individual’s spouse for at least one of the filing spouses, and

28
- 2 [PROPOSED] ORDER TO SHOW CAUSE

Case 8:20-cv-00858-SVW-JEM Document 11-7 Filed 05/08/20 Page 3 of 4 Page ID #:129

1

“(C) in the case of any qualifying child taken into account under

2

subsection (b)(1)(B), the valid identification number of such

3

qualifying child.

4

“(2) VALID IDENTIFICATION NUMBER.—

5

“(A) IN GENERAL.—For purposes of paragraph (1), the term ‘valid

6

identification number’ means a social security number (as such term

7

is defined in section 24(h)(7)).

8

ii. Issuing a Preliminary and Permanent Injunction amending the

9

CARES Act as identified above and enjoining Defendants from

10

affixing any new terms to the CARES Act, or any future legislation

11

designed to provide economic stimulus to United States citizens that

12

excludes mixed immigration status families.

13 B. A determination that the Exclusion Provision, as enacted by Section 2101 of

14

the CARES Act, is unconstitutional and should not be enforced;

15 C. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

16

Sec. 6428(g), is subject to strict scrutiny;

17 D. Issue a declaratory judgment that Section 2101 of the CARES Act, enacting

18

Sec. 6428(g), as applied to the Plaintiffs, violates the constitutional and

19

statutory rights of Plaintiffs;

20 E. Issue a declaratory judgment striking from the CARES Act those provisions

21

that are violative of the protections afforded to Plaintiffs and those similarly

22

situated under the United States Constitution, federal statutes, and those

23

cases interpreting the same under which this Court is bound under the

24

principles of stare decisis;

25

To the extent they have not already done so, plaintiffs are ordered to serve

26 copy of this Order, the Memorandum of Law in Support of Application for

27 Temporary Restraining Order and Order to Show Cause, the Application For A

28
- 3 [PROPOSED] ORDER TO SHOW CAUSE

Case 8:20-cv-00858-SVW-JEM Document 11-7 Filed 05/08/20 Page 4 of 4 Page ID #:130

1 Temporary Restraining Order and Order To Show Cause, the Proposed TRO, and the

2 declarations and exhibits in support of the TRO, on the defendants, no later than ___

3 p.m. on ____________________,2020.

4

Court Orders an expedited hearing on his Emergency Motion for a Temporary

5 Restraining Order, Preliminary Injunction and/or Declaratory Judgment and Class

6 Certification on the ____ day of _____________, 2020 at o'clock __.m.,

7

8 Dated: 9 10 11

, 2020 _________________
United States District Court Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
- 4 [PROPOSED] ORDER TO SHOW CAUSE

 
 Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 1 of 34 Page ID #:196

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8 [Additional counsel listed on the next page] 9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

SOUTHERN DIVISION

13 JANE DOE, individually and on behalf of others similarly situated,
14

15

Plaintiff,

16

v.

17

DONALD J. TRUMP, in his individual and official capacity as President of the

18

United States; MITCH MCCONNELL, in his individual and official capacity as a

19 Senator and Sponsor of S. 3548 CARES Act; and STEVEN MNUCHIN, in his

20 individual and official capacity as the

Acting Secretary of the U.S. Department

21 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S. 22 Commissioner of Internal Revenue; U.S.

DEPARTMENT OF THE TREASURY; 23 the U.S. INTERNAL REVENUE

24

SERVICE; and the UNITED STATES OF AMERICA,

25

Defendants.

CASE NO: 8:20-cv-00858-SVW-JEM Assigned to the Hon. Stephen V. Wilson
PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AS TO CARES ACT
Action Filed: May 6, 2020

26

27

28

- i -

PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 2 of 34 Page ID #:197

1 BLAISE & NITSCHKE, P.C.

2 Lana B. Nassar (IL Bar No. 6319396) * Thomas J. Nitschke (IL Bar No. 6225740) *
3 Elisabeth A. Gavin (IL Bar No. 6297740) *

4 123 N. Wacker Drive, Suite 250

5 Chicago, IL 60606

6

T: (312) 448-6602 F: (312) 803-1940

7 lnassar@blaisenitschkelaw.com

8
9 MATERN LAW GROUP, PC MATTHEW J. MATERN, ESQ. (SBN 159798)
10 JOSHUA D. BOXER, ESQ, (SBN 226712)
11 1230 Rosecrans Avenue, Suite 200
12 Manhattan Beach, CA 90266 Telephone: 310-531-1900
13 Email: mmatern@maternlawgroup.com 14 Email: jdboxer@maternlawgroup.com

15 16 COREY B. BENNETT, ESQ. (SBN 267816)
1330 Broadway, Suite 428 17 Oakland, CA 94612
18 Telephone: 510-227-3998
19 Email: cbennett@maternlawgroup.com

20 MOORE TAX LAW GROUP LLC 21 Guinevere M. Moore (IL Bar No. 6297231)*
22 150 N. Wacker Drive, Suite 1250 Chicago, Illinois 60606
23 T: (312) 549-9992 24 F: (312) 549-9991
25 guinevere.moore@mooretaxlawgroup.com

26 [Additional counsel listed on the next page] 27

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1 KHALAF & ABUZIR, LLC

2 Vivian Khalaf (IL Bar No. 6210668) * Omar Abuzir (IL Bar No. 6257708) *
3 20 N. Clark, Suite 720

4 Chicago, IL 60602

5 T: (708) 233-1122

6

F: (708) 233-1161 vkhalaf@immigrationjd.com

7

8 * Application for admission pro hac vice forthcoming

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1

TABLE OF CONTENTS

2 TABLE OF CONTENTS..............................................................................................iv

3 TABLE OF AUTHORITIES ......................................................................................... v

4 PROCEDURAL HISTORY .......................................................................................... 1 ARGUMENT ................................................................................................................. 2
5 I. This Court Has Jurisdiction Over Plaintiff’s Claims.. ........................................ 3

6 A. Congress Has Waived Sovereign Immunity in this Case. ............................. 4

7

B. Neither the Anti-Injunction Act Nor the Declaratory Judgment Act Bar

Plaintiff’s Claims. .......................................................................................... 6

8 II. Plaintiff has Standing. ......................................................................................... 9

9 A. Plaintiff has Suffered, and Continues to Suffer, an Injury in Fact, by Being

10

Rendered Ineligible to Receive the Advance Payment that has Already

11

Been Distributed to Over One Hundred Million Americans. ...................... 10

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

12

Provide Plaintiff a Remedy, Let Alone an Adequate Remedy. ................... 14

13 III. Plaintiff’s Constitutional Claims are Cogently Well-Pleaded, and She is Likely

14

to Succeed on the Merits. .................................................................................. 16

A. Plaintiff’s Claims are Subject to Strict Scrutiny Review.............................16

15

B. The Exclusion Provision Disproportionately Impacts Plaintiff Based on

16

Whom She Chose to Marry..........................................................................18

17

C. The Exclusion Provision Directly Infringes on Plaintiff’s First Amendment

Right. ............................................................................................................ 21 18 IV. Plaintiff Will Suffer Irreparable Injury Absent a Preliminary Injunction.........22

19 V. The Balance of the Hardships and Public Interest Favor Granting Injunctive

20

Relief. ................................................................................................................ 24

21 VI. Class Certification Should Be Granted Now.....................................................24

22

23

24

25

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1

TABLE OF AUTHORITIES

2 Cases

3 Abdel–Fattah v. Commissioner, 134 T.C. 190, 192 n.3, (2010) .................................17

4 Agyeman v. INS, 296 F.3d 871, 882–83 (9th Cir. 2002) .......................................19, 20 Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) ........................................ 16
5 Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 ........................................13 6 Arizona v. United States, 567 U.S. 387 (2012)............................................................21

7 Baloch v. Norton, 517 F. Supp. 2d 345 (D.D.C. 2007) ................................................. 4

8 Bennett v. Spear, 520 U.S. 154, 162 (1997) ................................................................ 10 Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008)..............................................4
9 Bob Jones Univ. v. Simon, 416 U.S. 725, 733 n.7 (1974) ............................................. 7

10 Boddie v. Connecticut, 401 U.S. 371, 376 (1971) ...............................................2, 3, 13

11 Bolling v. Sharpe, 347 U.S. 497, 499 (1954)...............................................................13 Bowen v. Massachusetts, 487 U.S. 879 (1988) ............................................................. 4
12 Brown v. Napolitano, 391 Fed. Appx. 346, 347 (5th Cir. 2010).................................19

13 Carey v. Piphus, 435 U.S. 247, 266 (1978).................................................................13

14 Chhoeun v. Marin, 306 F. Supp. 3d 1147, 1164 (C.D. Cal. 2018)..............................24

15

CIC Services, LLC v. Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020) . 9 Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409, 414, n.5 (2013)...........................12

16 Cohen v. United States, 650 F.3d 717, 730-31 (D.C. Cir. 2011)................................... 7

17 Delano Farms Co. v. California Table Grape Com’n, 655 F.3d 1337, 1334 (Fed. Cir.

18 2011)...........................................................................................................................5 Doe v. Trump, 418 F. Supp. 3d 573, 603 (D. Or. 2019)..............................................25
19 Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995) .................................................11

20 Drucker v. Comm’r, 697 F.2d 46 (2d Cir. 1982).........................................................16

21 Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015).......................................................................................................................7, 8
22 Freedom from Religion Foundation, Inc. v. Schulman, 961 F.Supp.2d 947, 945 (W.D.

23 Wis. 2013) ............................................................................................................ 6, 13

24 Frontiero v. Richardson, 411 U.S. 677 (1973)............................................................16

25 Gaylor v. Mnuchin, 919 F.3d 420 (7th Cir. 2019).......................................................11 Graham v. Richardson, 403 U.S. 365 (1971)..............................................................16
26 Great Am. Ins. Co. v. Berl, No. CV 17-03767 SJO, 2017 U.S. Dist. LEXIS 222110, at

27 *3 (C.D. Cal. Oct. 23, 2017) ...................................................................................... 4

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1 Griffin v. Illinois, 351 U.S. 12 (1956)............................................................................ 3

2 Griswold v. Connecticut, 381 U.S. 479, 485 (1965) ...................................................21 Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) .....................................3, 13, 14, 24
3 Howe v. Varity Corp, 896 F.2d 1107, 1112 (8th Cir. 1990)........................................24

4 In Matter of Laureano, 19 I & N. Dec. 1 (B.I.A. Dec. 12, 1983) ...............................23

5 In re Talmadge, 832 F.2d 1120, 1126 & n.3 (9th Cir. 1987) ...................................... 17

6

Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931) ....................13, 14 J.L. v. Cissna, 341 F. Supp. 3d 1048, 1070 (N.D. Cal. 2018) ..................................... 24

7 Loving v. Virginia, 388 U.S. 1 (1967) .....................................................................2, 16

8 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).............................10, 12

9 Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978)..................................................16 Mathews v. Diaz, 426 U.S. 67, 82 (1976)....................................................................21
10 Matter of Velarde, 23 I&N Dec. 253 (BIA 2002) .......................................................19

11 Meyer v. Nebraska, 262 U.S. 390 (1923) ...................................................................... 2

12 Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) .....24 Michigan v. United States Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011) ... 5
13 Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972) ............................................11
14 National Federation of Independent Business v. Sebelius, 567 U.S. 519, 543-46

15 (2012) ......................................................................................................................... 7
16 Nelson v. Regan, 731 F.2d 105 (2d Cir. 1984) .............................................................. 8 Northern California Small Business Assistance, Inc. v. Commissioner, 153 T.C. 65
17 (2019) ....................................................................................................................... 11

18 Optinrealbig.com, LLC v. Ironport Systems, Inc. 323 F.Supp.2d 1037, 1050 (N.D.

19 Cal. 2004) ................................................................................................................. 23 Oyama v. California, 323 U.S. 633 (1948) .................................................................16
20 Public Util. Comm'n v. FERC, 814 F.2d 560, 562 (9th Cir.1987) .............................. 23

21 Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984).............................2, 22

22 Schinasi v. Commissioner, 53 T.C. 382 (1969) ...........................................................17 Schlesinger v. Ballard, 419 U.S. 498, 500 n.3 (1975).................................................13
23 Schneider v. Rusk, 377 U.S. 163, 168 (1964)..............................................................13
24 Skinner v. Oklahoma, 316 U.S. 535 (1942)...............................................................2, 3

25 Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851, 858 (1986) ............................8, 9
26 Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985).....................8, 9 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) .............................12, 13
27 Takahashi v. Fish & Game Com., 334 U.S. 410 (1948)................................................3

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1 The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) ......5

2 Trudeau v. Federal Trade Com’n, 456 F.3d 178, 184-185 (D.C. Cir. 2006)................5 United States v. Windsor, 570 U.S. 744, 769-70 (2013) .............................................18
3 Valley Forge Christian College v. Americans United for Separation of Church and

4 State, Inc., 454 U.S. 464, 471-472 (1982)................................................................10

5 Warnke v. United States, 641 F. Supp. 1083 (E.D. Ky. 1986) ....................................11

6

Wen Yuan Chan v. Lynch, 843 F.3d 539, 546 (1st Cir. 2016).....................................19 Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................................................18

7 Statutes

8 28 U.S.C. § 1331............................................................................................................3

9 28 U.S.C. § 1367(a) ....................................................................................................... 3

10 5 U.S.C. § 702................................................................................................................4 66 Stat. 163 .................................................................................................................. 23
11 8 USCS § 1186a(b) ...................................................................................................... 20

12 I.R.C. § 61 .................................................................................................................... 17

13 I.R.C. § 6212 ................................................................................................................ 14 I.R.C. § 6428.........................................................................................................passim
14 I.R.C. § 6662 ................................................................................................................ 14

15 I.R.C. § 7201 ................................................................................................................ 14

16 I.R.C. § 7421(a) ............................................................................................................. 7

17 I.R.C. § 7422 ................................................................................................................ 18 I.R.C. § 871 .................................................................................................................. 17
18 Other Authorities
19 Coronavirus Aid, Relief, and Economic Security (“CARES”) Act,

20 Pub. L. No. 116-136, H.R. 748, 116th Cong. (2020)...............................1, 10, 11, 20

21 Regulations
22 8 C.F.R. § 204.2(a)(1)(3)(iii)(B)..................................................................................19 Treas. Reg. § 1.6012-1(b)(1) .......................................................................................17
23 Constitutional Provisions
24 USCS Const. Amend. 1 ................................................................................................. 2 25 USCS Const. Amend. 5 ............................................................................................... 13
26

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1

PROCEDURAL HISTORY

2

On May 6, 2020, Plaintiff filed a class action complaint (the “Complaint”)

3 challenging the Coronavirus Aid, Economic Relief, and Security Act (the “CARES

4 Act” or “Act”) and alleging violations of her constitutional rights. See Dkt. 1.

5 Plaintiff subsequently filed her Emergency Motion (“Em. Mot.”). See Dkts. 9 & 11.

6 Defendants filed their opposition to Plaintiff’s Ex Parte Application on May 11, 2020

7 and their memorandum in opposition to Plaintiff’s Emergency Motion (“Memo in

8 Opp.”) on May 26, 2020. See Dkts 22 and 23.

9

The CARES Act creates a refundable tax credit for any eligible individual who

10 holds a social security number (“SSN”) by adding 26 U.S.C. § 6428 to the Internal

11 Revenue Code (“I.R.C.”); Coronavirus Aid, Relief, and Economic Security

12 (“CARES”) Act, Pub. L. No. 116-136, H.R. 748, 116th Cong. (2020). Section 6248

13 provides an Advance Payment to all eligible individuals on or before December 31,

14 2020 (the “Advance Payment”). I.R.C. § 6428(f)(3)(A). The Advance Payment

15 should be made “as rapidly as possible,” and Congress directed the Secretary of the

16 Treasury to conduct a public awareness campaign regarding “information about

17 availability of the credit and rebate.” CARES Act, § 2201(e). However, under the

18 exclusion provision found in § 6428(g)(1)(B) (the “Exclusion Provision”), Plaintiff

19 and the Putative Class are not eligible for Advance Payments under the Act because

20 they filed taxes jointly with their spouses, who do not hold SSNs. I.R.C. § 6428(g).

21

The “Advance Payment” must be paid before December 31, 2020, or not at all

22 because Congress expressly forbid the Commissioner of Internal Revenue from

23 issuing any Advance Payment later: “[n]o refund or credit shall be made or allowed

24 under this subsection after December 31, 2020.” I.R.C. § 6428(f)(3)(A).

25

Defendants suggest that the proper procedure for challenging Plaintiff’s

26 eligibility for the Advance Payment is to proceed under I.R.C. § 7422(a). See Memo

27 in Opp. at 11. Defendants do not deny that Plaintiff has been denied equal access to

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1 the Advance Payment. Instead, Defendants argue that Plaintiff has no standing, and

2 may proceed only through a refund suit under I.R.C. § 7422. See Memo in Opp. at 7-

3 8, 10. Defendants are patently incorrect. An injunction is the only adequate remedy to

4 provide Plaintiff equal treatment under the law.

5

As of the date of filing this Reply, Plaintiff continues to be denied

6 constitutional rights, as a citizen of the United States, to the Advance Payment that

7 has already been issued to over one hundred million Americans and – by its own

8 terms – must be issued on or before December 31, 2020, or not at all. I.R.C. §

9 6428(f)(3)(A). Injunctive relief must issue here to preserve those rights and prevent

10 irreparable harm.

11

ARGUMENT

12

The Memo in Opp. barely scratches the surface of the CARES Act’s

13 constitutional violations and seeks to distract this court’s attention with arguments as

14 to why jurisdiction and standing are lacking. This Court’s jurisdiction and Plaintiff’s

15 standing are both on firm footing, however, and Defendants’ arguments to the

16 contrary should be rejected. Furthermore, Plaintiff’s constitutionally protected rights

17 are clearly impacted by the Exclusion Provision. First, marriage is recognized as one

18 of the fundamental personal rights essential to the orderly pursuit of freedom and

19 happiness, with great importance in our society. Boddie v. Connecticut, 401 U.S. 371,

20 376 (1971), citing Loving v. Virginia, 388 U.S. 1 (1967); Skinner v. Oklahoma, 316

21 U.S. 535 (1942); Meyer v. Nebraska, 262 U.S. 390 (1923). The fundamental right of

22 marriage evokes the freedoms of association embodied in our First Amendment.

23 USCS Const. Amend. 1. Roberts v. United States Jaycees, 468 U.S. 609, 619-20

24 (1984). Moreover, the Supreme Court has further established a statute may be held

25 constitutionally invalid as applied when it operates to deprive an individual of a

26 protected right although its general validity as a measure enacted in the legitimate

27 exercise of power is beyond question. Boddie, supra, at 379. (“[T]his Court has often

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1 held that a valid statute was unconstitutionally applied in particular circumstances

2 because it interfered with an individual’s exercise of [First Amendment] Rights”).

3 Equal Protection and Due Process are implicated when laws discriminate against

4 people for: whom they marry; alienage; for poverty; and for class. Id. at 385, citing

5 Takahashi v. Fish & Game Com., 334 U.S. 410 (1948), Griffin v. Illinois, 351 U.S. 12

6 (1956), Skinner v. Oklahoma, 316 U.S. 535 (1942). Indeed, the right to equal

7 treatment guaranteed by the Constitution is paramount. As the Supreme Court

8 emphatically held in Heckler:

9

[W]e have repeatedly emphasized, discrimination itself, by

10

perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore

11

as less worthy participants in the political community, can cause

12

serious noneconomic injuries to those persons who are personally

denied equal treatment solely because of their membership in a

13

disfavored group.

14 Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (internal citations omitted). Here,

15 Plaintiff, because of her marriage to a non-U.S. Citizen, is being stigmatized and

16 treated as inferior. An injunction mandating equal treatment would provide redress.

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

18

26 U.S.C. § 1331 (“Section 1331”) confers jurisdiction over Plaintiff’s claims

19 upon this Court, as they arise under the Constitution of the United States. Section

20 1331 provides “district courts shall have original jurisdiction of all civil actions

21 arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

22 1331. Section 1367 similarly allows jurisdiction over any supplemental claims “that

23 are so related to claims in the action within [the court’s] original jurisdiction that they

24 form a part of the same case or controversy.” 28 U.S.C. § 1367(a). Defendants

25 maintain that an administrative claim for refund provides Plaintiff’s only and

26 adequate remedy. See Memo in Opp. at 8. Defendants are wrong.

27

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1

A. Congress Has Waived Sovereign Immunity in this Case.

2

Where, as here, a plaintiff raises a valid claim that arises under federal law, the

3 federal government is the defendant, and the suit does not seek money damages,

4 “jurisdiction is secure.” Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008). The

5 Administrative Procedure Act (“APA”), waives sovereign immunity for the kind of

6 relief Plaintiff seeks, so long as the federal statute at issue authorizes review of

7 agency action. Id. at 372. The APA provides an express waiver of sovereign

8 immunity where, as here, the plaintiff seeks equitable relief. 5 U.S.C. § 702.1 The

9 relevant statute provides:

10

An action in a court of the United States seeking relief other than

11

money damages and stating a claim that an agency [. . .] acted or

failed to act [. . .] shall not be dismissed nor relief therein be denied on

12

the ground that it is against the United States or that the United States

13

is an indispensable party.

14

5 U.S.C. § 702.

15

In Blagojevich v. Gates, the then-governor of Illinois sued the Secretary of

16 Defense under 28 U.S.C. §§ 1331 and 1346(a)(2). The District Court for the Central

17 District of Illinois dismissed the suit sua sponte because the government had not

18 waived sovereign immunity and thus, the court lacked jurisdiction. Blagojevich, 519

19 F.3d at 370. The Seventh Circuit Court of Appeals reversed and remanded the case,

20 holding Section 702 of the APA is generally applicable, regardless of whether a claim

21 is “under the APA;” and Section 702 governs when “any federal statute authorizes

22 review of agency action. Id. at 372 (citing Bowen v. Massachusetts, 487 U.S. 879

23

24 1 Memo in Opp. at 13. “[A]n argument is not ‘new’ when it is made in response to an issue raised in an earlier briefing.

25

Baloch v. Norton, 517 F. Supp. 2d 345 (D.D.C. 2007) (denying plaintiff leave to file a sur-reply when defendant's allegedly new argument in the reply was made in response to an issue that plaintiff had raised in the opposition). Great

26

Am. Ins. Co. v. Berl, No. CV 17-03767 SJO, 2017 U.S. Dist. LEXIS 222110, at *3 (C.D. Cal. Oct. 23, 2017). While the original complaint adequately sets forth Plaintiff’s claims and basis for relief, as well as this Court’s basis for

27

jurisdiction, counsel is amending the complaint to more clearly set forth the jurisdictional basis. The amended complaint, which is being filed instanter, is attached to the accompanying declaration of Joshua D. Boxer (“Boxer

28 Decl.”) as Exhibit A.

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1 (1988)) (emphasis in original). The Court of Appeals for the Ninth Circuit reached a

2 similar conclusion when, in The Presbyterian Church (U.S.A.) v. United States the

3 court reversed and remanded a case to the District Court of Arizona. 870 F.2d 518

4 (9th Cir. 1989). The Ninth Circuit rejected an attempt by INS to limit section 702 to

5 agency action, holding, “nothing in the language of the [1976] amendment to [section

6 702] suggest that the waiver of sovereign immunity is limited to claim challenging

7 conduct falling within the narrow definition of ‘agency action.’” Id. at 525. 2

8

Provisions such as “5 U.S.C. § 701(a), and § 706(2)(A) allow[] a court to set

9 aside agency action that is ‘not in accordance with law,’” and that law is not limited

10 to “another portion of the APA.” Id. The Court of Appeals for the District of

11 Columbia has reached the same conclusion. In Trudeau v. Federal Trade

12 Commission, the Federal Trade Commission sought to dismiss a lawsuit for lack of

13 jurisdiction, arguing that the court had no jurisdiction over the infomercial producer

14 plaintiff’s First Amendment claims against the FTC. Trudeau v. Federal Trade

15 Com’n, 456 F.3d 178, 184-185 (D.C. Cir. 2006). The Court of Appeals held that

16 Section 1331 provided jurisdiction. Id. at 185. The APA’s “waiver of sovereign

17 immunity applies to any suit whether under the APA or not.” Id. at 186. See also

18 Delano Farms Co. v. California Table Grape Com’n, 655 F.3d 1337, 1334 (Fed. Cir.

19 2011) (“We hold that section 702 of the APA waives sovereign immunity for non-

20 monetary claims against federal agencies, subject to the limitations in subsections (1)

21 and (2). It is not limited to “agency action” or “final agency action,” as those terms 22 are defined in the APA.); Michigan v. United States Army Corps of Engineers, 667

23 F.3d 765 (7th Cir. 2011) (702 waives sovereign immunity when “any federal statute 24 authorizes review of agency action, as well as in cases involving constitutional 25 law.”). 26

27

2 Although agency action is not required, it is alleged in the FAC at ¶35

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1

Claims challenging Department of Treasury and Internal Revenue Service

2 action – such as distributing billions of dollars of Advance Payments to United States

3 persons but unconstitutionally excluding U.S. persons who are married to individuals

4 who do not have SSNs – have fared the same. For example, in Freedom from

5 Religion Foundation, Inc. v. Schulman, the District Court for the Western District of

6 Wisconsin held that the APA waived sovereign immunity when the Plaintiff

7 challenged IRS policy “pursuant to the Fifth Amendment’s equal-protection clause

8 and the Establishment Clause.” 961 F.Supp.2d 947, 954 (W.D. Wis. 2013). Despite

9 the plaintiff’s lack of identifying final agency action or action that was committed to

10 agency discretion, the court held “the second sentence of § 702 still waives the

11 United States’s [sic] sovereign immunity … because that sentence is not limited to

12 claims brought under the APA itself but is generally applicable to any action for

13 prospective relief, including an action involving a constitutional challenge.” Id.

14 (emphasis added). Section 702 applies here, because the Treasury Department, has

15 issued Advance Payments to over one hundred million Americans pursuant to the

16 CARES Act, but Plaintiff and the Putative class are ineligible to receive the Advance

17 Payment due to the unconstitutional Exclusion Provision.

18

B. Neither the Anti-Injunction Act Nor the Declaratory Judgment Act

19

Bar Plaintiff’s Claims.

20

Defendants correctly point out that that the CARES Act creates a “refundable

21 tax credit.” See Memo in Opp. at 8. It is precisely for that reason – that the CARES

22 Act created a refundable tax credit and not a tax – that neither the Anti-Injunction Act

23 (“AIA”) nor the Declaratory Judgment Act (“DJA”) bar this Court’s review of

24 Plaintiff and the Putative Class’s claims. Both the AIA’s text and its prior conclusive

25 judicial interpretation make clear that Plaintiff’s claims cannot be construed as an

26 attempt to “restrain[] the assessment and collection of any tax [...]” within the

27

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1 meaning of the statute, thereby removing the predicate that is essential for applying

2 the AIA.

3

The AIA does not bar this suit because Plaintiff and the Putative Class do not

4 seek to restrain assessment or collection of tax. The Anti-Injunction Act provides:

5

Except as provided […] no suit for the purpose of restraining the

6

assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom

7

such tax was assessed.

8

I.R.C. § 7421(a). The CARES Act creates a refundable tax credit to be

9 distributed as an Advance Payment. Providing equal access to the Advance Payment

10 to Plaintiff and the Putative Class will not restrain assessment or collection of tax.

11 I.R.C. § 6428(f)(3(A). The DJA, 28 U.S.C. § 2201(a), which generally bars federal

12 courts from granting declaratory judgments “with respect to Federal taxes,” has been

13 deemed to be “coterminous” with the AIA. Fla. Bankers Ass’n v. U.S. Dep’t of the

14 Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015) (citing Cohen v. United States, 650

15 F.3d 717, 730-31 (D.C. Cir. 2011) (en banc)); see also Bob Jones Univ. v. Simon, 416

16 U.S. 725, 733 n.7 (1974). Accordingly, neither the AIA or the DJA inhibit this

17 Court’s jurisdiction or the APA’s waiver of sovereign immunity.

18

The Advance Payment is not a tax. The AIA’s text denies a court’s jurisdiction

19 from maintaining a “suit for the purpose of restraining the assessment or collection of

20 any tax.” I.R.C. § 7421 (emphasis added). The Supreme Court emphasized the term

21 “tax” in AIA’s text in National Federation of Independent Business v. Sebelius, 567

22 U.S. 519, 543-46 (2012) (“NFIB”), as it considered whether the AIA precluded the

23 Court from considering the merits of a constitutional challenge to the Affordable Care

24 Act before payment of the shared responsibility payment. The Court noted that

25 “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is

26 significant.” NFIB, 567 U.S. at 544.

27

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1

The AIA applies only when the item at issue is an “exaction,” i.e., an amount

2 due the Government, when Congress chooses to call that exaction a “tax.” The D.C.

3 Circuit took that rationale to its logical conclusion in Florida Bankers Association v.

4 U.S. Department of the Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015), declining to

5 reach the merits of a challenge to a regulation imposing reporting requirements on

6 banks, a “penalty” codified at 26 U.S.C. § 6721(a). Then-Judge Kavanaugh stated

7 that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to

8 refer to the penalties and liabilities provided by this subchapter.” Id. at 1068. He

9 explained, “[i]f the penalty here were not itself a tax, the Anti-Injunction Act would

10 not bar this suit.” Id. at 1069.3

11

Defendants correctly compare the Earned Income Tax Credit (“EITC”) to the

12 CARES Act Advance Payment. See Memo in Opp. at 8. The EITC is a refundable tax

13 credit intended “to negate the disincentive to work caused by Social Security taxes.”

14 Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851, 858 (1986). It is precisely for

15 that reason – that the EITC is a refundable tax credit and not a tax – that courts have

16 unequivocally held that the AIA and the DJA do not apply to bar class action lawsuits

17 based upon refundable tax credits. For example, in Nelson v. Regan, 731 F.2d 105 (2d

18 Cir. 1984), a certified class sought declaratory and injunctive relief because

19 refundable portions of the EITC were being intercepted pursuant to section 6402(c) of 20 the I.R.C. to satisfy past due child support obligations. On appeal, the Second Circuit 21 held that neither the AIA nor the DJA barred a hearing on the merits, because “the tax 22

23

24 3 By comparison, and as Defendants agree (Memo in Opp. at 8), the Advance Payment under section 6428 is a

25

refundable credit—the inverse of an exaction or a tax. In other words, unlike in Florida Bankers Association, where section 6671(a) deemed the payment at issue a tax for all “purposes of title 26,” section 6211(b)(4) requires that the

26

payment at issue here be considered “negative amounts of tax” only for defining a deficiency. Because a section 6428 refundable credit is the opposite of an exaction, and no provision of the Code deems it a negative amount of tax for all

27

purposes of title 26, or at least for purposes of section 7421, by its terms the latter does not apply. Thus, the Advance Payment is not a tax and there is no bar to Plaintiff’s claims being before this Court.

28

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1 intercept program [seizing past due child support] does not apply to refunds or

2 payments of earned income credits.” Id. at 110-12.

3

A circuit split developed on the issue when the Ninth Circuit came out the

4 other way in Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985),

5 holding that ETICs were subject to being intercepted under section 6402(c). The

6 Ninth’s Circuit’s holding was premised on the conclusion that the EITC was

7 “undisputedly owed to petitioner and undisputedly not owed to the United States as

8 taxes.” Sorenson, 752 F.2d at 1437 (emphasis added). Eventually, the Supreme Court

9 resolved that circuit split by siding with the Ninth Circuit in Sorenson v. Sec’y of

10 Treasury of U.S., 475 U.S. 851 (1986), holding that the EITC was subject to the past

11 due child support intercept program. Critically, however, the Government raised

12 neither the AIA nor the DJA at the Supreme Court. Thus, every court to hear a

13 challenge to the propriety of including refundable EITCs in tax refunds intercepted

14 and directed toward back child-support obligations was able to proceed to the merits

15 of the challenge, notwithstanding the AIA or DJA.

16

Refundable tax credits like the Advance Payment are “undisputedly not owed

17 to the United States as taxes” (Sorenson, 752 F.2d at 1437) and do not implicate the

18 AIA or the DJA.4 Sovereign immunity is unequivocally waived by the APA, and

19 neither the AIA nor the DJA create any additional jurisdictional hurdles.

20 II. Plaintiff has Standing.

21

Plaintiff and the Putative Class, all of whom have suffered and continue to

22 suffer an actual injury that is directly traceable to Defendants’ conduct and will

23 unequivocally be redressed by a favorable decision here, have standing. Defendants

24 make two arguments in their attempt to support the fatally flawed conclusion that

25

26 4 On May 4, 2020, the Supreme Court granted certiorari to CIC Services, LLC v. Internal Revenue Service, Docket No.

27

19-930 (Sup. Ct. 2020) to resolve an apparent Circuit Split between the Sixth, Seventh and Tenth Circuits on the question of whether the Anti-Injunction Act bars challenges to unlawful regulatory mandates issued by administrative

28 agencies when those mandates are not taxes.

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1 Plaintiff lacks standing. First, that Plaintiff has not been denied the CARES Act

2 Credit (see Memo in Opp. at 11) and second, that Plaintiff may be, or may become,

3 eligible for the CARES Act Credit. See Memo in Opp. at 12. Both arguments

4 misconstrue the facts of this case and applicable law, which plainly put Plaintiff’s

5 injuries on solid ground before this Court.

6

To satisfy the “case” or “controversy” requirement of Article III,

7

which is the “irreducible constitutional minimum” of standing, a plaintiff must, generally speaking, demonstrate that he

8

has suffered “injury in fact,” that the injury is “fairly traceable” to the

9

actions of the defendant, and that the injury will likely be redressed by a favorable decision.

10 Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of

11 Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian College v. Americans

12 United for Separation of Church and State, Inc., 454 U.S. 464, 471-472 (1982)).

13

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

14

Being Rendered Ineligible to Receive the Advance Payment that has

15

Already Been Distributed to Over One Hundred Million Americans.

16

Plaintiff’s injury in fact is easily and readily discernible. The CARES Act,

17 enacted in response to a global pandemic the likes of which this generation has never

18 seen,5 created a refundable tax credit. I.R.C. § 6428. The Secretary of the Treasury is

19 directed to issue the credit as an Advance Payment, I.R.C. § 6428(f)(3)(A), “as

20 rapidly as possible,” and to conduct a public awareness campaign to provide the

21 public “information about availability of the credit and rebate.” CARES Act, §

22 2201(e). Plaintiff has not and will not ever receive the emergency Advance Payment

23 absent this Court’s intervention. The IRS has issued Advance Payments to

24 152,167,600 Americans, including almost 750,000 Americans residing outside of the

25 United States, totaling over $257,954,545,196.00. See IR-2020-101, May 22, 2020,

26

27 5 Statement by Secretary Steven T. Mnuchin on the Passage of the CARES Act, U.S. Department of the Treasury (March

28

27, 2020), https://home.treasury.gov/index.php/news/press-releases/sm959 (last visited May 29, 2020). - 10 -

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 18 of 34 Page ID #:213

1 attached hereto and incorporated herein as Exhibit B, to Boxer Decl. It is true that

2 Plaintiff is permitted to (though not required to) someday file a claim for refund and

3 dispute the constitutionality of the Exclusion Provision. See discussion infra Part II.B.

4 Doing so will not obviate the immediate need for this Court’s intervention or redress

5 Plaintiff’s ongoing injury, denying her the Advance Payment unlike the 152,167,600

6 Americans who have already received such a payment. None of the cases cited by

7 Defendants for the mistaken proposition that Plaintiff must apply and be denied for

8 benefits before her claim is ripe apply to the situation here.6 See Memo in Opp. at 11.

9 Plaintiff’s harm is not speculative, it is not conjectural, and it is not hypothetical. The

10 harm is real, it is now, and it is continuing so long as she remains ineligible by virtue

11 of the Exclusion Provision. I.R.C. § 6428(g)(1)(B).

12

While the CARES Act does create a refundable tax credit operating as an

13 Advance Payment from eligible individuals’ 2020 tax returns, Defendants

14 misconstrue the statute in arguing that it does not provide “any right to immediate

15 advance refund.” See Memo in Opp. at 22. The CARES Act expressly provides for an

16 Advance Payment, provides that the payment should be made “as rapidly as

17 possible,” and Congress directed the Secretary of the Treasury to conduct a public

18 awareness campaign to provide the public “information about availability of the

19 credit and rebate.” CARES Act, § 2201(e). Congress wanted this Advance Payment

20 pushed into the hands of Americans, at once, as evidenced by the statute’s directive

21 that the Advance Payment must be made before the end of the year. No future

22

23
6 Defendants cite cases, Memo in Opp. at 11, in support of their argument that courts may entertain
24 constitutional challenges to tax benefits only after taxpayers have “actually sought the tax benefit from the
taxing authority and then litigated their own tax liability”: Droz v. Commissioner, 48 F.3d 1120 (9th Cir.
25 1995) (exemption from self-employment tax); Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972)
(dependent-care expense deduction); Gaylor v. Mnuchin, 919 F.3d 420 (7th Cir. 2019) (parsonage
26 exclusion); and Warnke v. United States, 641 F. Supp. 1083 (E.D. Ky. 1986) (same). It is well-established
that tax deductions, unlike credits, are granted by legislative grace and the two are not apt comparisons. See,
27 e.g., Northern California Small Business Assistance, Inc. v. Commissioner, 153 T.C. 65, 70 (2019).

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 19 of 34 Page ID #:214

1 action on the part of Plaintiff will change eligibility to receive the Advance Payment,

2 which must be issued before the end of 2020 or not at all. Here, because Defendants

3 have issued over one hundred million Advance Payments to other United States

4 citizens, Plaintiff and the Putative Class have not received an Advance Payment, and

5 they will not receive one under the current law, they have already personally been

6 denied equal treatment. Finally, while section 6248(e) requires a “truing up” of the

7 Advance Payment with the actual amount of the 2020 credit (computed based on

8 2020 status and liability), it does not require repayment. Section 6248(e) provides,

9 “The amount of credit which would (but for this paragraph) be allowable under this

10 section shall be reduced (but not below zero) by the aggregate refunds and credits

11 made or allowed to the taxpayer under subsection (f).” I.R.C. § 6428(e) (emphasis

12 added). In other words, the Advance Payment is a gift conferred on United States

13 citizens who meet certain income eligibility requirements, unless they happen to be

14 married to someone who does not have an SSN.

15

Defendants incorrectly assert Plaintiff lacks an “injury in fact.” See Memo in

16 Opp. at 6,15. An injury sufficient to satisfy Article III must be “concrete and

17 particularized” and “actual or imminent, not ‘conjectural’ or

18 ‘hypothetical.’” Lujan, supra, at 560 (some internal quotation marks omitted). An

19 allegation of future injury may suffice if the threatened injury is “certainly

20 impending,” or there is a “‘substantial risk’ that the harm will occur.” Susan B.

21 Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citing Clapper v. Amnesty Int’l

22 USA, 568 U. S. 398, 409, 414, n.5 (2013)). Plaintiff undoubtedly has a personal stake

23 because she has been denied the Advance Payment during this pandemic.

24 Defendants’ assertion that Plaintiff’s claims are premature because she has not yet

25 applied for and been denied the benefit at issue is belied by the IRS Commissioner’s

26 contrary statements that the payments are being distributed “automatically” and there

27 is “no action required for most people” to receive the Advance Payment. See IR

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 20 of 34 Page ID #:215

1 2020-61, March 30, 2020, attached hereto and incorporated herein as Exhibit C, to

2 Boxer Decl. The Advance Payment has been and will continue to be automatically

3 distributed to eligible taxpayers. Defendants have launched an unprecedented public

4 awareness campaign regarding the Advance Payment, and even issued prepaid debit

5 cards to those eligible individuals for whom the IRS does not have bank account

6 information.7

7

Plaintiff’s exclusion from eligibility for the Advance Payment is ongoing, the

8 injury is more than actual and imminent, as she is being deprived of equal treatment

9 right now.8 This injury is directly traceable to the actions of the Defendants. Only an

10 injunction prohibiting the Defendants from continuing this policy of unequal

11 treatment will prevent any further injury. Freedom from Religion Found., Inc. v.

12 Shulman, 961 F. Supp. 2d 947, 951 (W.D. Wis. 2013). Accordingly, the far-fetched

13 argument that Plaintiff’s harm is anything but actual should be rejected.

14

Even if this Court were to engage in the mental gymnastics required to ignore

15 the actual, ongoing injury at issue, the Supreme Court has permitted pre-enforcement

16 review under circumstances that render the threatened enforcement sufficiently

17 imminent. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).

18 Accordingly, the harm will occur with absolute certainty, absent this Court’s

19

20 7 Defendant Mnuchin stated, “Treasury and the IRS have been working with unprecedented speed to issue Economic

21 Impact Payments to American families. Prepaid debit cards [… ] allow us to deliver Americans their money quickly.”
See Treasury is Delivering Millions of Economic Impact Payments by Prepaid Debit Card, May 18, 2020 attached

22

hereto and incorporated herein as Exhibit C. 8 See Heckler v. Mathews, 465 U.S. 728, 738–40 (1984) (victim of unequal treatment has standing to seek equal

23 treatment); see also Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931) (cause of action for equal
protection accrues as soon as the plaintiff is deprived of equal treatment). The Exclusion Provision deprives Plaintiff of

24 the right to equal protection and procedural due process, which are “absolute” rights “in the sense that they do not
depend upon the merits of Plaintiff’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266 (1978), (citing Boddie

25

v. Connecticut, 401 U.S. 371, 375 (1971)); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J., concurring)). The Fifth Amendment provides, in pertinent part, that no person shall “be deprived of life, liberty, or

26

property, without due process of law.” USCS Const. Amend. 5. See also Boddie v. Connecticut, 401 U.S. 371, 375 (1971). Although the Fifth Amendment contains no Equal Protection Clause as does the Fourteenth Amendment, the

27

Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is “so unjustifiable as to be violative of due process.” Schlesinger v. Ballard, 419 U.S. 498, 500 n.3 (1975), quoting Bolling v.

28

Sharpe, 347 U.S. 497, 499 (1954). See also, Schneider v. Rusk, 377 U.S. 163, 168 (1964). - 13 -

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 21 of 34 Page ID #:216

1 intervention. Id. at 158. In Heckler v. Matthews, the Supreme Court articulated the

2 requirements for evaluating standing for purposes of the constitutional “case or

3 controversy requirement.” 465 U.S. 728 (1984). A “plaintiff must show that he

4 personally has suffered some actual or threatened injury as a result of the putatively

5 illegal conduct of the defendant and that the injury ‘is likely to be redressed by a

6 favorable decision.” Id. at 738 (internal citations omitted). Here, when “the right

7 invoked is that of equal treatment, the appropriate remedy is a mandate of equal

8 treatment.” Id. at 740, (quoting Iowa-Des Moines Nat'l Bank v. Bennett, 284 U.S.

9 239, 247 (1931)).

10

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

11

Would Provide Plaintiff a Remedy, Let Alone an Adequate Remedy.

12

Throughout the Memo in Opp., Defendants suggest Plaintiff may become

13 eligible for the CARES Act credit by filing a claim for refund or filing her 2020

14 return as “Married Filing Separately.” See Memo in Opp. at 6-8. Nothing suggested

15 addresses Plaintiff’s actual, realized injury: deprivation of the emergency Advance

16 Payment that has already been issued to over one hundred million Americans and

17 must be issued by December 31, 2020 or not at all. I.R.C. § 6428(f)(3)(A). There is

18 no action Plaintiff can take that will provide her with equal protection under the

19 CARES Act as it is written.

20

If Plaintiff is not provided with the Advance Payment, to claim the CARES

21 Credit, Plaintiff must file an income tax return sometime after filing season opens on

22 or about February 1, 2021. Plaintiff would either need to (A) file a tax return claiming

23 the credit and file a statement explaining she is not entitled to the credit but is

24 claiming it and contesting the unconstitutional aspects of the law, or (B) file a tax

25 return that does not claim the credit, pay her tax in full, and months later file an

26 amended return claiming the credit as a claim for refund following the procedures in

27 I.R.C. § 7422. If Plaintiff selects option A, she opens herself up to potential civil and

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 22 of 34 Page ID #:217

1 criminal liability, see, I.R.C. §§ 6662, 7201, and must litigate her right to the credit in

2 United States Tax Court. I.R.C. § 6212. If Plaintiff selects option B, she will have to

3 wait until at least November 2021 before she can even file suit against the United

4 States. No matter what avenue Plaintiff chooses, she will never receive the

5 emergency Advance Payment, which must be issued by December of 2020, and the

6 earliest judicial intervention is years away. As the last date for any taxpayer to

7 receive the Advance Payment is unequivocally set for December 31, 2020,

8 Defendants’ contention that a refund suit under § 7422 provides Plaintiff an adequate

9 – and sole – remedy would be laughable if Plaintiff and the Putative Class’s health,

10 safety, and welfare were not so dire and the facial discriminatory intent and impact

11 not so blatant. See Memo in Opp. at 8.

12

Defendants’ suggestion that Plaintiff file her 2020 tax return as “married filing

13 separately” (see Memo in Opp. at 12-13) is equally unhelpful, but it does help

14 illustrate the patent unfairness and unequal treatment accorded Plaintiff by the

15 CARES Act. Plaintiff’s 2019 income tax return provides a helpful illustration. If

16 Plaintiff had filed her 2019 income tax return as “married filing separately” instead of

17 “married filing jointly” her federal income tax would have increased by over 100

18 percent. See Affidavit of Harold Katz, CPA, attached hereto and incorporated herein

19 as Exhibit D, to Boxer Decl. Taxpayers who file MFS instead of MFJ almost always

20 owe more in tax. Id. Defendants cannot seriously contend that in order to receive

21 equal treatment under the CARES Act, Plaintiff should self-select a more onerous tax

22 treatment. Regardless of the availability of some future possible avenue to the

23 CARES Act credit, Plaintiff has already been denied her emergency Advance

24 Payment to the detriment of her health, safety, and welfare as a result of the

25 discriminatory actions, and absent judicial intervention she will succumb to the very

26 harm the CARES Act intended to prevent. Accordingly, there is no adequate remedy

27 at law.

28

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1

2 III. Plaintiff’s Constitutional Claims are Cogently Well-Pleaded, and She is

3

Likely to Succeed on the Merits.

4

Plaintiff is likely to succeed on the merits of her underlying claims that the

5 Exclusion Provision of the CARES Act is unconstitutional.

6

A. Plaintiff’s Claims are Subject to Strict Scrutiny Review

7

Statutory classifications will be strictly scrutinized when they include an

8 impingement on a fundamental right and/or a “suspect class,” including

9 classifications based on race, Loving v. Virginia, 388 U.S. 1 (1967), alienage,

10 Graham v. Richardson, 403 U.S. 365 (1971), ancestry or nationality, Oyama v.

11 California, 323 U.S. 633 (1948), and sex, Frontiero v. Richardson, 411 U.S. 677

12 (1973). Plaintiff will be denied the Advance Payment she would otherwise qualify

13 for, but for the constitutionally protected association with a person who does not have

14 an SSN. Oyama, supra, at 640 (applying strict scrutiny: “there is absent the

15 compelling justification which would be needed to sustain discrimination of that

16 nature”). This deprivation is subject to strict scrutiny, and even if it wasn’t, there is no

17 rational basis for denying Plaintiff and the Putative Class the Advance Payment.

18

Both the fundamental right of U.S. Citizens and the invidious classification

19 based on the alienage status of their spouse leaves no doubt that the Exclusion

20 Provision is subject to strict scrutiny and thus is unconstitutional on its face and as

21 applied. Id.

22

None of the cases cited by Defendants relating to alleged unconstitutional

23 classifications in the I.R.C. based solely on marital status govern here. Statutes that

24 interfere with the right to marry are subject to “rigorous scrutiny,” but where

25 Congress has imposed a higher rate of tax on all married individuals, the different

26 treatment is permissible. Drucker v. Comm’r, 697 F.2d 46 (2d Cir. 1982). Similarly, a

27 higher rate of tax imposed on all married couples survives review. Mapes v. United

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 24 of 34 Page ID #:219

1 States, 576 F.2d 896 (Ct. Cl. 1978). A federal food stamp provision that distinguished

2 between permanent resident aliens whose spouse met the work eligibility requirement

3 in a marriage ending in divorce and those ending in death also survives, even if it is

4 not a “model of legislative logic….” Aleman v. Glickman, 217 F.3d 1191, 1201 (9th

5 Cir. 2000). Unlike the instant case, there was no distinction drawn based strictly on

6 alienage. Finally, because bankruptcy is not a fundamental right, limiting married

7 debtors to a single exemption is permissible. In re Talmadge, 832 F.2d 1120, 1126 &

8 n.3 (9th Cir. 1987). The key distinction between these cases and the instant one is

9 this: citizens are denied the Advance Payment because of whom they married, not

10 because of the mere fact that they are married. Thus, the Exclusion Provision both

11 punishes citizens for having exercised a fundamental right and unjustly deprives them

12 of critical economic aid based solely on a suspect classification of their spouses.

13

Schinasi v. Commissioner, 53 T.C. 382 (1969), cited at Memo in Opp. at 16

14 and 18 bears further discussion. The taxpayer in Schinasi argued he should be

15 permitted to file a joint income tax return with his spouse, but was prohibited from

16 doing so based on her nonresident status. Schinasi, 53 T.C. at 383. The Tax Court

17 rightly pointed to the vastly different taxation scheme non-resident aliens adhere to in

18 rejecting a challenge to the different tax treatment afforded the petitioner in that case.

19 Id. at 383. United States persons are taxed on worldwide income. I.R.C. § 61.

20 Nonresident aliens, conversely, are generally taxed on United States income. I.R.C. §

21 871. Nonresident aliens do not file IRS Form 1040, U.S. Individual Income Tax

22 return, they file IRS Form 1040NR. Treas. Reg. § 1.6012-1(b)(1); see also Abdel–

23 Fattah v. Commissioner, 134 T.C. 190, 192 n.3 (2010) (noting that because

24 nonresident aliens are ineligible for certain credits available on Form 1040, they are

25 required to file Form 1040NR). It is neither surprising nor relevant to this case that

26 the Tax Court rejected a challenge to the petitioner’s inability to file married filing

27 jointly with a nonresident alien spouse. However, the Schinasi court itself forecasted

28

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1 the problem directly at issue here: “[i]t seems clear that the different tax treatment of

2 nonresident aliens would raise problems if one of them filed a joint return with a

3 citizen or resident.” Schinasi, 53 T.C. at 383.

4

B. The Exclusion Provision Disproportionately Impacts Plaintiff Based

5

on Whom She Chose to Marry.

6

Section 6428(g)(1) disproportionately impacts a taxpayer who chooses to

7 marry someone who does not have an SSN. In United States v. Windsor, the Supreme

8 Court held that the Defense of Marriage Act (“DOMA”), which denied same sex

9 couples the right to marry, “violated the basic due process and equal protection

10 principles applicable to the Federal Government” under the Fifth Amendment. 570

11 U.S. 744, 769-70 (2013). Windsor was a tax case in which a widow was ineligible for

12 the same benefit that would have been afforded her if she were married to a man

13 instead of a woman. Id. at 749. The Supreme Court held that she established standing

14 and jurisdiction to challenge her unequal treatment under the tax code and the

15 DOMA. 9 Id. The right to marry confers “a dignity and status of immense import.”

16 Id. at 768. Marriage is “more than a routine classification for purposes of certain

17 statutory benefits,” and is “subject to constitutional guarantees.” Id. The Court held

18 that DOMA’s “principle effect is to identify a subset of state-sanctioned marriages

19 and make them unequal. The principal purpose is to impose inequality[.]” Id. at 772.

20 The same is true of the Exclusion Provision, which identifies a subset of state-

21 sanctioned marriages and makes them unequal by – as in Windsor – “den[ying] or

22 reduces benefits allowed to families.” Id. at 773. Here, as in Windsor, this Court can

23 only conclude that while “Congress has great authority to design laws to fit its own

24 conception of sound national policy, it cannot deny the liberty protected by […] Fifth

25 Amendment.” Id. at 774. The right to marry is directly implicated by Section

26

27

9 The plaintiff in Windsor, which dealt with estate tax, did not have the benefit of a tax credit allowing her to get into court without paying the tax in full and filing a claim for refund, and so she followed the procedures under I.R.C. §

28 7422. 570 U.S. at 753.

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1 6428(g)(1), and the principal effect of that Section, just like DOMA, is to identify a

2 subset of state-sanctioned marriages and make them unequal. See also Zablocki v.

3 Redhail, 434 U.S. 374 (1978) (“When a statutory classification significantly

4 interferes with the exercise of a fundamental right [like the right to marriage] it

5 cannot be upheld unless it is supported by sufficiently important […] interests and is

6 closely tailored to effectuate only those interests.”).

7

Importantly, in addition to the higher marginal tax rate described above, MFJ

8 and MFS filing status can have a significant effect on persons who have recently

9 immigrated to the U.S. through marriage to a U.S. citizen or permanent resident.

10 Individuals who are in the U.S. and applying to adjust their status to a permanent

11 resident through their U.S. citizen spouse (and for those arriving to the U.S. as a K-1

12 fiancé or spouse) must submit evidence proving the existence of a bona fide marriage

13 when filing Form I-485. Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). In Wen

14 Yuan Chan v. Lynch, the Court of Appeals for the First Circuit held that the petitioner

15 “lacked proof” of intention to make a life together, when she only filed jointly with

16 her husband for one of the several years prior to the petition. Wen Yuan Chan v.

17 Lynch, 843 F.3d 539, 546 (1st Cir. 2016); see also Agyeman v. INS, 296 F.3d 871,

18 882–83 (9th Cir.2002) (“Evidence of the marriage’s bona fides may include: jointly-

19 filed tax return […]”); Brown v. Napolitano, 391 Fed. Appx. 346, 347 (5th Cir. 2010)

20 (holding United States Citizenship and Immigration Services (“USCIS”) correctly

21 considered taxes in denying immigration status) (unpublished opinion). The

22 regulations expressly provide that joint tax returns are evidence of bona-fide

23 marriage. 8 C.F.R. § 204.2(a)(1)(3)(iii)(B). USCIS has a long history of carefully

24 reviewing tax returns for all relevant years to confirm that they were filed jointly. See

25 Instructions for Form I-130, Petition for Alien Relative, and Form I-130A,

26 Supplemental Information for Spouse Beneficiary at 6-7, Section 5, attached hereto

27 and incorporated herein as Exhibit E, to Boxer Decl.; see also Dkt. 11 at Exhibit C.

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 27 of 34 Page ID #:222

1 Filing separate returns (or failure to file) raises the presumption that the marriage may

2 not be legitimate, resulting in extensive delay and difficulties in the adjudication of

3 the application, creating instability and hardship. Id.

4

Many applications for permanent residency (submitted by couples married for

5 less than two years at the time they are granted) are granted conditionally for a period

6 of two years. After two years, an alien must file Form I-751, Petition to Remove

7 Conditions on Residence, attached hereto and incorporated herein as Exhibit F, to

8 Boxer Decl. Again, applicants must establish bona fide marriage with their spouse.

9 Jointly filed returns are essential to be included with the I-751 petition. 8 USCS §

10 1186a(b).

11

Permanent residents who obtained their status through marriage to a U.S.

12 citizen are eligible to apply for naturalization three years after obtaining permanent

13 residency (as opposed to five years). In order to take advantage of this shortened

14 period of eligibility, one must prove that they have been living in marital union with

15 the U.S. citizen spouse for the entire three-year period. This proof again entails the

16 filing of joint tax returns in order to meet USCIS requirements. See Form N-400,

17 Application for Naturalization attached hereto and incorporated herein as Exhibit G,

18 to Boxer Decl.; see also Agyeman v. INS, 296 F.3d 871, 882-83 (9th Cir. 2002).

19

The injury to Plaintiff is not just the unlawful denial of the Advance Payment,

20 but the harm to the legal immigration process. Defendants’ encouragement of

21 Plaintiff and those similarly situated to file tax returns separately, which can then

22 detrimentally affect lawful immigration pathways for immigrant spouses, is nothing

23 short of an appalling assault on legal immigration and the constitutional rights of U.S.

24 citizens to marry whom they love, regardless of immigration status. See Dkt. 11 at 22.

25

Moreover, the Exclusion Provision violates Equal Protection. Defendants

26 argue that eligibility for an Advance Payment is based on whether an individual has

27 an SSN, and not on alienage. See Memo in Opp. at 17-18. This is simply untrue. In

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 28 of 34 Page ID #:223

1 fact, no individuals who lack an SSN have received an Advance Payment, nor could

2 they. CARES Act, § 2101(a). Despite this fact, Defendants have denied and continue

3 to deny Plaintiff the right to receive an Advance Payment based upon whether her

4 spouse - not Plaintiff - possesses an SSN. Id.

5

Further, Defendants’ reliance on Arizona v. United States, 567 U.S. 387

6 (2012), cited in Memo in Opp. at 19, is misplaced, as this Exclusion Provision

7 discriminates based on the alienage of Plaintiff’s spouse, not Plaintiff herself.

8 Moreover, the Court in that case, which concerned federal preemption of state anti-

9 immigrant laws, was based on Congress’ broad authority “to ‘establish an uniform

10 Rule of Naturalization’” and “its inherent power as sovereign to control and conduct

11 relations with foreign nations.” Id. at 394. The Court did not address whether strict

12 scrutiny or the rational basis test applied. Defendants’ likewise miss the mark in their

13 citation to Mathews v. Diaz, 426 U.S. 67, 82 (1976). Mathews concerned “eligibility

14 for participation in a federal medical insurance program [conditioned] on continuous

15 residence in the United States for a five-year period and admission for permanent

16 residence.” Id. at 69. While the Court declined to question Congress’ choice of

17 providing certain benefits to certain aliens and not others, the Court was not asked to

18 consider a law akin to the Exclusion Provision which discriminates against U.S.

19 citizens based on the alienage of her or his chosen spouse.

20

C. The Exclusion Provision Directly Infringes on Plaintiff’s First

21

Amendment Right.

22

The Exclusion Provision of the CARES Act directly violates the First

23 Amendment of the United States Constitution. In Griswold v. Connecticut, the Court

24 stressed the sanctity of marriage lying within the zone of privacy created by several

25 fundamental constitutional guarantees. Griswold v. Connecticut, 381 U.S. 479, 485

26 (1965). The Exclusion Provision discriminates against Plaintiff on the basis of the

27 protected sanctity of marriage--a fundamental right. As a result of the disparate

28

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 29 of 34 Page ID #:224

1 treatment, Plaintiff is denied an Advance Payment. I.R.C. § 6428(g)(1)(B) also

2 infringes on Plaintiff’s right to enjoy all the benefits of marriage afforded to other

3 married persons. See Dkt. 1 ¶ 89.

4

The Constitution undoubtedly imposes constraints on the State’s power to

5 control the selection of one’s spouse. Roberts v. United States Jaycees, 468 U.S. 609,

6 620 (1984). The Exclusion Provision does just that. The fundamental right to

7 marriage is the freedom of intimate association and must be secured against undue

8 intrusion by the State. Id at 618. In this respect, freedom of association receives

9 protection as a fundamental element of personal liberty. Id. Accordingly, denying a

10 privilege to Plaintiff based solely on her selection of spouse unduly intrudes on the

11 intimate association of marriage and should be struck down as unconstitutional.

12 IV. Plaintiff Will Suffer Irreparable Injury Absent a Preliminary Injunction.

13

Plaintiff will suffer irreparable injury in the absence of a preliminary injunction

14 in two ways. First, she will be unable to meet her family’s financial obligations for

15 the minimum necessities of life, including the ability to put food on her family’s

16 table, and pay her rent, insurance, and health insurance deductibles. See Dkt. 11 at

17 Exhibit A ¶¶ 7-8. Second, the CARES Act has an irreparable harmful effect on the

18 lawful immigration process, because families seeking a path to obtaining lawful

19 citizenship for their spouses are encouraged during the desperation of the pandemic to

20 use the filing status of Married Filing Separately and are, as a result, denied the equal

21 treatment, as all other married individuals.

22

Congress expressed the immediacy of the need for the payment stating it

23 should be made “as rapidly as possible.” I.R.C. § 6428(f)(3). Plaintiff’s injury is

24 irreparable because the harm the CARES Act seeks to remedy will befall her if she

25 continues to be denied the relief that the emergency Advance Payment seeks to avoid.

26 If Plaintiff and the Putative Class are denied immediate injunctive relief, their

27 families will continue to struggle to meet their financial obligations for the basic

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 30 of 34 Page ID #:225

1 necessities of human life, including but not limited to avoiding starvation for them

2 and their children, homelessness, and other dire consequences affecting their liberty

3 and safety, all of which the CARES Act was designed to address for qualifying

4 Americans as a result of the Pandemic. See Dkt. No. 11 at 20, Exhibit A, and Exhibit

5 B (emphasis added). Defendants completely ignore these injuries. Instead, they repeat

6 that if the Plaintiff is eventually successful, she will receive a credit (which will never

7 occur with the law as written). See Memo in Opp. at 21. Even if that were true, by

8 that time Plaintiff will have succumbed to dire consequences affecting her liberty and

9 safety, the very consequences the CARES Act was designed to avoid. See,

10 Optinrealbig.com, LLC v. Ironport Systems, Inc., 323 F.Supp.2d 1037, 1050 (N.D.

11 Cal. 2004) (citing Public Util. Comm'n v. FERC, 814 F.2d 560, 562 (9th Cir.

12 1987) (“An irreparable harm is one that cannot be redressed by a legal or equitable

13 remedy following trial.”). Surely Defendants do not contend that starvation,

14 homelessness, and adverse impacts on liberty and safety do not constitute irreparable

15 harm.

16

Finally, as described above, while “income tax forms” are but one

17 consideration in evaluating whether a marriage is valid for immigration purposes, the

18 failure to file a joint return with your immigrant spouse is a reason often used to deny

19 immigrant spouses citizenship. In Matter of Laureano, 19 I & N. Dec. 1, 1 (B.I.A.

20 Dec. 12, 1983). See Dkt. No. 11 at Exhibit C ¶ 6(d-f). The intentional carve out of the

21 Putative Class in the CARES Act is effectively a bar to a U.S. Citizen’s path to 22 obtaining lawful citizenship for their spouse, as envisioned in the Immigration and 23 Nationality Act. See 66 Stat. 163 at Sec. 319(a). Accordingly, Plaintiff and the 24 Putative Class will be irreparably harmed if interim relief is not granted. For all these 25 reasons Plaintiff and the Putative Class have no adequate remedy at law. 26

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 31 of 34 Page ID #:226

1 V. The Balance of the Hardships and Public Interest Favor Granting

2

Injunctive Relief.

3 As established above, Plaintiff has met the threshold eligibility for an injunction.

4 The balance of the hardships and public interest factors tip sharply in favor of

5 Plaintiff. The harms the Exclusion Provision inflicts are immediate and severe and

6 the public interest is clearly served by this Court acting to order recognition of U.S.

7 Citizens and their children consistent with the manner in which the Federal

8 Government treats similarly situated U.S. Citizens, without regard to their marital

9 statuses. Only prompt action by ordering declaratory and injunctive relief will serve

10 the public interest. Heckler v. Mathews, 465 U.S. 728, 738-40 (1984) (internal

11 citations omitted).

12

Due to her marriage to a non-US citizen, Plaintiff is being stigmatized and

13 treated as inferior under the CARES Act and an injunction mandating equal treatment

14 would provide redress. Finally, Defendants argument that they will be harmed by the

15 orderly administration of the tax laws unless Plaintiff waits until 2021 to claim a

16 CARES Act credit is non-sensical for all the reasons stated above. See Memo in Opp.

17 at 23

18

Accordingly, there is no doubt the balance of hardships and public interest

19 favor granting injunctive relief.

20 VI. Class Certification Should Be Granted Now.

21

Defendants argue that it is premature to grant class certification. See Memo in

22 Opp. at 24. Importantly, Defendants cite no authority for this conclusion, nor do they

23 contemplate Plaintiff’s alternative request for conditional class certification. Federal

24 Rule of Civil Procedure 23(b)(2) “does not restrict class certification to instances

25 when final injunctive relief issues” and permits certification of a conditional class for

26 the purpose of granting preliminary injunctive relief. Meyer v. Portfolio Recovery

27 Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); see also Howe v. Varity Corp,

28

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Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 32 of 34 Page ID #:227

1 896 F.2d 1107, 1112 (8th Cir. 1990) (affirming grant of a preliminary injunction to a

2 conditional class); See also J.L. v. Cissna, 341 F. Supp. 3d 1048, 1070 (N.D. Cal.

3 2018); Chhoeun v. Marin, 306 F. Supp. 3d 1147, 1164 (C.D. Cal. 2018) (granting a

4 classwide injunction before certification when “an injunction is necessary to forestall

5 harm to putative class members that is likely to transpire before the parties can

6 litigate a motion for class certification.” Doe v. Trump, 418 F. Supp. 3d 573, 603 (D.

7 Or. 2019).

8

If it were not for the Exclusion Provision, Plaintiff would qualify for the

9 Advance Payment. See Exhibit D. The government itself is in possession of the

10 information Defendants claim to need discovery to gather – filing status, adjusted

11 gross income, etc. The Treasury Department relied on historical data to issue over

12 one hundred million Advance Payments to Americans, and can do the same for

13 Plaintiff and the Putative Class so long as this Court finds the Exclusion Provision

14 unconstitutional. The Putative Class is well defined in the Complaint, easily

15 discernable, and desperate for this Court’s relief.

16

Accordingly, Class Certification should be granted or, in the alternative,

17 conditionally granted for purposes of the Emergency Motion.

18 19 DATED: June 2, 2020

Respectfully submitted,

20

JANE DOE, individually and on behalf of

21

others similarly situated.

22 By: /s/ Heather L. Blaise

23

HEATHER L. BLAISE, ESQ. (SBN 261619)

24

123 N. Wacker Drive, Suite 250

25

Chicago, IL 60606

Telephone: 312-448-6602

26

Email: hblaise@blaisenitschkelaw.com

27

Attorney for Plaintiff

28

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 33 of 34 Page ID #:228

1

2

BLAISE & NITSCHKE, P.C.

Lana B. Nassar (IL Bar No. 6319396) *

3

Thomas J. Nitschke (IL Bar No. 6225740) *

4

Elisabeth A. Gavin (IL Bar No. 6297740) *

5

123 N. Wacker Drive, Suite 250

6

Chicago, IL 60606 T: (312) 448-6602

7

F: (312) 803-1940

8

lnassar@blaisenitschkelaw.com

9

10

MATERN LAW GROUP, PC

11

12

13

By: /s/ Joshua D. Boxer

14

MATTHEW J. MATERN, ESQ. (SBN

15

159798)

16

JOSHUA D. BOXER, ESQ, (SBN 226712)

1230 Rosecrans Avenue, Suite 200

17

Manhattan Beach, CA 90266

18

Telephone: 310-531-1900

19

Email: mmatern@maternlawgroup.com

Email: jdboxer@maternlawgroup.com

20

21

COREY B. BENNETT, ESQ. (SBN 267816)

22

1330 Broadway, Suite 428

Oakland, CA 94612

23

Telephone: 510-227-3998

24

Email: cbennett@maternlawgroup.com

25

26

Attorney for Plaintiff

27

28

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Case 8:20-cv-00858-SVW-JEM Document 26 Filed 06/02/20 Page 34 of 34 Page ID #:229

1

MOORE TAX LAW GROUP LLC

2

Guinevere M. Moore (IL Bar No. 6297231)*

150 N. Wacker Drive, Suite 1250

3

Chicago, Illinois 60606

4

T: (312) 549-9992

5

F: (312) 549-9991

6

guinevere.moore@mooretaxlawgroup.com

7

KHALAF & ABUZIR, LLC

8

Vivian Khalaf (IL Bar No. 6210668) *

9

Omar Abuzir (IL Bar No. 6257708) *

20 N. Clark, Suite 720

10

Chicago, IL 60602

11

T: (708) 233-1122

12

F: (708) 233-1161

vkhalaf@immigrationjd.com

13

14

* Application for admission pro hac vice

15

forthcoming

16

17

18

19

20

21

22

23

24

25

26

27

28

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-1 Filed 06/02/20 Page 1 of 5 Page ID #:230

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiff, JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8 [Additional counsel listed on the next page] 9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

SOUTHERN DIVISION

13

14

JANE DOE, individually and on behalf of others similarly situated,

15

Plaintiff,

16 v.

17 DONALD J. TRUMP, in his individual

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

Senator and Sponsor of S. 3548 CARES

20 Act; and STEVEN MNUCHIN, in his

21

individual and official capacity as the Acting Secretary of the U.S. Department

22

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

23

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

24 the U.S. INTERNAL REVENUE SERVICE; and the UNITED STATES OF
25 AMERICA,

Defendants. 26

CASE NO: 8:20-cv-00858-SVW-JEM Assigned to the Hon. Stephen V. Wilson DECLARATION OF JOSHUA D. BOXER IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AS TO CARES ACT
Action Filed: May 6, 2020

27

28

- i BOXER DECLARATION IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING

ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-1 Filed 06/02/20 Page 2 of 5 Page ID #:231

1 BLAISE & NITSCHKE, P.C.

2 Lana B. Nassar (IL Bar No. 6319396) * Thomas J. Nitschke (IL Bar No. 6225740) *
3 Elisabeth A. Gavin (IL Bar No. 6297740) *

4 123 N. Wacker Drive, Suite 250

5 Chicago, IL 60606

6

T: (312) 448-6602 F: (312) 803-1940

7 lnassar@blaisenitschkelaw.com

8
9 MATERN LAW GROUP, PC MATTHEW J. MATERN, ESQ. (SBN 159798)
10 JOSHUA D. BOXER, ESQ, (SBN 226712)
11 1230 Rosecrans Avenue, Suite 200
12 Manhattan Beach, CA 90266 Telephone: 310-531-1900
13 Email: mmatern@maternlawgroup.com 14 Email: jdboxer@maternlawgroup.com

15 16 COREY B. BENNETT, ESQ. (SBN 267816)
1330 Broadway, Suite 428 17 Oakland, CA 94612
18 Telephone: 510-227-3998
19 Email: cbennett@maternlawgroup.com

20 MOORE TAX LAW GROUP LLC 21 Guinevere M. Moore (IL Bar No. 6297231)*
22 150 N. Wacker Drive, Suite 1250 Chicago, Illinois 60606
23 T: (312) 549-9992 24 F: (312) 549-9991
25 guinevere.moore@mooretaxlawgroup.com

26 [Additional counsel listed on the next page] 27

28

- ii BOXER DECLARATION IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING

ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-1 Filed 06/02/20 Page 3 of 5 Page ID #:232

1 KHALAF & ABUZIR, LLC

2 Vivian Khalaf (IL Bar No. 6210668) * Omar Abuzir (IL Bar No. 6257708) *
3 20 N. Clark, Suite 720

4 Chicago, IL 60602

5 T: (708) 233-1122

6

F: (708) 233-1161 vkhalaf@immigrationjd.com

7

8 * Application for admission pro hac vice forthcoming

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- iii BOXER DECLARATION IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING

ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-1 Filed 06/02/20 Page 4 of 5 Page ID #:233

1

I, JOSHUA D. BOXER, declare as follows:

2

1. I am an attorney at law duly licensed to practice in the State of

3 California and am admitted to practice before this Court. I am a senior associate at

4 the Matern Law Group (“MLG”), counsel of record for Plaintiffs in the above-

5 entitled action. I make this declaration on the basis of personal knowledge unless

6 another source of information or belief clearly appears from the context, and as to all

7 such matters I believe them to be true. If called as a witness, I could and would

8 readily and competently testify to all matters stated within.

9

2. I make this declaration in support of Plaintiffs’ Reply in Support of Ex

10 Parte Application for Temporary Restraining Order.

11

3. Attached hereto as EXHIBIT A is a true and correct copy of Plaintiff’s

12 proposed First Amended Complaint.

13

4. Attached hereto as EXHIBIT B is a true and correct copy of IR-2020-

14 101, May 22, 2020.

15

5. Attached hereto as EXHIBIT C is a true and correct copy of IR 2020-

16 61, March 30, 2020.

17

6. Attached hereto as EXHIBIT D is a true and correct copy of the

18 Affidavit of Harold Katz, CPA

19

7. Attached hereto as EXHIBIT E is a true and correct copy of the

20 Instructions for Form I-130, Petition for Alien Relative, and Form I-130A,

21 Supplemental Information for Spouse Beneficiary.

22

8. Attached hereto as EXHIBIT F is a true and correct copy of Form I-

23 751, Petition to Remove Conditions on Residence.

24

9. Attached hereto as EXHIBIT G is a true and correct copy of Form N-

25 400, Application for Naturalization.

26 \\

27

28

- iv BOXER DECLARATION IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING

ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-1 Filed 06/02/20 Page 5 of 5 Page ID #:234

1

I declare under penalty of perjury under the laws of the United States that the

2 foregoing is true and correct.

3

Executed on June 2, 2020 at Redondo Beach, California.

4

5

/s/ Joshua D. Boxer

6

Joshua D. Boxer

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- v BOXER DECLARATION IN SUPPORT OF PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING

ORDER

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 1 of 22 Page ID #:235

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5 Attorneys for Plaintiff,
6 JANE DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

9

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE, and JOHN DOE, individually CASE NO: 8:20-cv-00858-SVW-JEM
12 and on behalf of others similarly situated, Assigned to the Hon. Stephen V. Wilson

13

Plaintiff,

FIRST AMENDED CLASS ACTION

14

v.

COMPLAINT

15 DONALD J. TRUMP, in his individual

16

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

17

his individual and official capacity as a Senator and Sponsor of S. 3548 CARES

18

Act; and STEVEN MNUCHIN, in his individual and official capacity as the

19 Acting Secretary of the U.S. Department of Treasury; CHARLES RETTIG, in his

20 individual and official capacity as U.S. Commissioner of Internal Revenue; U.S.

21 DEPARTMENT OF THE TREASURY;

the U.S. INTERNAL REVENUE

22 SERVICE; and the UNITED STATES OF

23 AMERICA,

Defendants.

Action Filed: May 6, 2020

24

NOW COMES Plaintiffs JANE DOE (hereinafter “Jane Doe”) and JOHN DOE

25 (hereinafter “John Doe,” collectively “Plaintiffs”)), individually and on behalf of the

26 proposed class, by and through their attorneys, Blaise & Nitschke, P.C., and Matern

27 Law Group, P.C., and submits their first amended class action complaint against

28

- 1 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 2 of 22 Page ID #:236

1 DONALD J. TRUMP, in his individual and official capacity as President of the

2 United States; MITCH MCCONNELL, in his individual and official capacity as

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

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

5 Department of Treasury, CHARLES RETTIG, in his individual and official capacity

6 as U.S. Commissioner of Internal Revenue; U.S. DEPARTMENT OF TREASURY;

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

8 AMERICA, (hereinafter collectively referred to as “Defendants”). In furtherance

9 whereof, Plaintiffs states as follows:

10

NATURE OF THE CASE

11

This is a class action based upon Defendants’ unconstitutional deprivation of

12 the rights, privileges, benefits and/or protections provided to United States citizens,

13 via the enactment and subsequent enforcement of the Coronavirus Aid, Relief, and

14 Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (hereinafter the

15 “CARES Act”).

16

PARTIES

17

1. Plaintiff JANE DOE is a U.S. citizen who at all times mentioned in this

18 Complaint resided in the Central District of California.

19

2. Plaintiff JOHN DOE is a U.S. citizen who at all times mentioned in this

20 Complaint resided in the Central District of California.

21

3. “Jane Doe” and “John Doe” are not Plaintiffs’ actual names, but rather

22 fictitious names for actual persons as herein described, in order to protect their actual

23 identities.

24

4. Defendant DONALD J. TRUMP, in his individual and official capacity

25 as President of the United States, is the President of the United States who signed into

26 law the CARES Act on March 27, 2020.

27

28

- 2 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 3 of 22 Page ID #:237

1

5. Defendant MITCH MCCONNELL, in his individual and official

2 capacity as United States Senator, is the Sponsor of the CARES Act, introduced in

3 the Senate as S. 3548 on March 19, 2020, and signed into law on March 27, 2020.

4

6. Defendant STEVEN MNUCHIN, in his individual and official capacity,

5 is the Acting Secretary of the U.S. Department of Treasury. In that capacity, among

6 other things, he oversees the collection of revenue, the preparation of plans for the

7 improvement and management of the revenue and the preparation and report of

8 estimates of the public revenue and public expenditures. As Secretary, Defendant

9 Mnuchin exercises full authority to administer and enforce the internal revenue laws

10 and has the power to create an agency to enforce these laws. As part of his duties,

11 Defendant Mnuchin oversees the issuance of recovery payments to eligible

12 individuals under the CARES Act.

13

7. Defendant CHARLES RETTIG, in his individual and official capacity is

14 the United States Commissioner of Internal Revenue Service. In that capacity,

15 Defendant Rettig administers the application of the internal revenue laws and tax

16 conventions to which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig

17 reports to the Secretary of the Treasury Defendant Mnuchin. As part of his duties,

18 Defendant Rettig oversees the issuance of recovery payments to eligible individuals

19 under the CARES Act.

20

8. Defendant U.S. DEPARTMENT OF THE TREASURY is an agency of

21 the U.S. government. The Department of the Treasury operates and maintains

22 systems that are critical to the nation's financial infrastructure, such as the production

23 of coin and currency, the disbursement of payments to the American public, revenue

24 collection, and the borrowing of funds necessary to run the federal government.

25

9. Defendant U.S. INTERNAL REVENUE SERVICE is a bureau of the

26 U.S. Department of the Treasury organized to carry out the responsibilities of the

27 Secretary of the Treasury under 26 U.S.C. § 7801. The Internal Revenue Service was

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 4 of 22 Page ID #:238

1 created based on the legislative grant of authority to the Secretary of the Treasury to

2 enforce the internal revenue laws. The IRS calculates and sends recovery payments to

3 those eligible under the CARES Act.

4

10. Defendant UNITED STATES OF AMERICA acted in respect to this

5 matter through its agencies, U.S. DEPARTMENT OF THE TREASURY and U.S.

6 INTERNAL REVENUE SERVICE.

7

11. That Defendants are each sued in their individual and official capacities

8 and are the persons and/or offices most responsible for the conduct alleged herein.

9

12. Each of the Defendants had actual and/or constructive knowledge of the

10 acts of the other Defendants as described herein, and ratified, approved, joined in,

11 acquiesced in, and/or authorized the acts of the other, and/or retained the benefits of

12 the said acts.

13

JURISDICTION AND VENUE

14

12. This Court has Federal Question Jurisdiction pursuant to 28 U.S.C. §

15 1331 because the case arises under the Constitution, laws, or treaties of the United

16 States.

17

13. Venue is appropriate in the United States District Court for the Central

18 District of California pursuant to 28 U.S.C. §1391(b) because a substantial part of the

19 events giving rise to the claims alleged herein occurred in this judicial district.

20

14. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1367,

21 which gives the district court supplemental jurisdiction over state law claims.

22

STATEMENT OF FACTS

23

15. This civil rights action challenges the CARES Act on constitutional

24 grounds. The CARES Act denies tax-paying U.S. citizens their rights, privileges,

25 benefits and/or protections embodied in section 2201 of the legislation, captioned

26 “2020 Recovery Rebates for Individuals.”

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 5 of 22 Page ID #:239

1

16. The CARES Act was introduced in the United States Senate (the

2 “Senate”) on March 19, 2020, as S. 3548, by Mitch McConnell (for himself,

3 Mr. Alexander, Mr. Crapo, Mr. Grassley, Mr. Rubio, Mr. Shelby, and Mr. Wicker).

4 166 Cong. Rec. S1828 (daily ed. Mar. 19, 2020).

5

17. The CARES Act was signed into law by President Donald J. Trump on

6 March 27, 2020. Statement by the President, WHITEHOUSE.GOV (March 27, 2020)

7 https://www.whitehouse.gov/briefings-statements/statement-by-the-president-38/

8 (last visited April 24, 2020).

9

18. Among other goals, the CARES Act seeks to provide “direct financial

10 help for the American people” affected by the 2020 coronavirus pandemic (“COVID-

11 19”). 166 Cong. Rec. S1828 (daily ed. Mar. 19, 2020).

12

19. The CARES Act payments are being distributed “automatically” and

13 there is “no action required for most people” to receive the Advance Payment. See IR

14 2020-61, March 30, 2020, attached hereto and incorporated herein as Exhibit A.

15

20. Section 2201 of the CARES Act aims to deliver on this goal by directing

16 the Internal Revenue Service to disburse so-called 2020 recovery rebates (hereinafter

17 “the Advance Payments”), with eligibility for and amounts of those Advance

18 Payments determined based on recipients’ immigration status, filing status for

19 Federal income tax purposes, and Federal income tax liability. The CARES Act’s

20 sponsor, Mitch McConnell, spelled out the objective of sending out the Advance

21 Payments: “to put cash in the hands of the American people” in an effort to “beat

22 back this virus.” 166 Cong. Rec. S1818 (daily ed. Mar. 19, 2020).

23

21. To allow for the issuance of the Advance Payments, the CARES Act

24 adds to the Internal Revenue Code of 1986 (“Code”) new section 6428, which

25 provides for a refundable tax credit in the applicable amount of the Advance Payment

26 against the given eligible individual’s 2020 Federal income tax liability. CARES Act,

27 sec. 2201(a).

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 6 of 22 Page ID #:240

1

22. Ordinarily, a refundable tax credit in the Code would generate a payment

2 to the taxpayer, if at all, only upon filing and processing of the return for the

3 applicable year. That would, however, defer the issuance of the Advance Payments

4 until 2021, at the earliest, and defeat the legislative intent for authorizing their

5 issuance in the first place—immediate financial relief. Therefore, Code section

6 6428(f) provides for the credit to be refunded even before the end of the 2020 tax

7 year. In form, then, the Advance Payments constitute early payment of the section

8 6428 refundable tax credit, which otherwise would have become available only in

9 2021 or later.

10

23. Code section 6428(f)(3) urges the Internal Revenue Service to issue the

11 Advance Payments “as rapidly as possible.”

12

24. Accordingly, Code section 6428(f)(1) authorizes the Internal Revenue

13 Service to, in effect, determine eligibility for and applicable amount of the Advance

14 Payment for an individual based on that individual’s immigration status, filing status,

15 and tax liability for tax year 2019.

16

25. Moreover, for individuals who have not filed 2019 tax returns at the time

17 the Internal Revenue Service makes determinations with respect to their Advance

18 Payments, Code section 6428(f)(5) authorizes the agency to base that determination

19 on those individuals’ immigration status, filing status, and tax liabilities for tax year

20 2018.

21

26. An “eligible individual;” i.e., one entitled to receive the Advance

22 Payment, is any individual other than someone who is a nonresident alien or someone

23 who can be claimed as a dependent on another individual’s return. Code sec. 6428(d).

24

27. Code section 6428(a) sets the maximum amount of the Advance

25 Payment equal to the sum of: (1) $1,200 for each eligible individual ($2,400 for two

26 eligible individuals who together file a joint return); and (2) $500 multiplied by the

27 number of dependents under the age of 17 claimed on the eligible individual’s return.

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 7 of 22 Page ID #:241

1

28. That maximum amount is to be reduced by 5 percent of the amount by

2 which the given eligible individual’s adjusted gross income exceeds a prespecified

3 threshold, determined by that individual’s filing status. That threshold is: $150,000 if

4 the individual files a joint return; $112,500 if the individual files as head of

5 household; and $75,000 if the individual files as a single or is not required to file.

6 Code sec. 6428(c).

7

29. Notwithstanding the preceding eligibility criteria and amount

8 determinants for Advance Payments, Code section 6428(g) contains an exclusion

9 provision. It excludes issuance of Advance Payments to any otherwise eligible

10 individual without a “valid” Social Security number; i.e., one valid for employment

11 purposes. It similarly excludes Advance Payments on account of dependents lacking

12 valid Social Security numbers claimed on an eligible individual’s return. For a joint

13 return, the provision requires valid Social Security numbers for both spouses. The

14 only exception is a joint return where at least one spouse was a member of the U.S.

15 Armed Forces during “the taxable year,” in which case only one spouse need have a

16 valid Social Security number. Code sec. 6428(g)(3).

17

30. Even though the CARES Act structures the issuance of an Advance

18 Payment as early payment of a 2020 refundable tax credit, it is evident from the

19 legislative history as well as the text, context, and structure of the statute that

20 Congress intended the Advance Payment itself, rather than the credit, as the

21 substantive relief being provided to taxpayers “to beat back the virus.” 166 Cong.

22 Rec. S1818 (daily ed. Mar. 19, 2020).

23

31. First, as noted above, the CARES Act’s sponsor, Mitch McConnell,

24 underscored the importance of “put[ting] cash in the hands of the American people.”

25

32. Second, and also as mentioned earlier, the statutory text charges the

26 Internal Revenue Service with sending out the Advance Payments “as rapidly as

27 possible,” authorizing the agency to determine eligibility and amounts payable based

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 8 of 22 Page ID #:242

1 on immigration status and tax filing information from, alternatively, tax years 2019

2 and 2018. See Code sec. 6428(f)(1), (3), (5).

3

33. Third, the U.S. Department of Treasury stresses, “The CARES Act

4 Works for All Americans.” U.S. Department of Treasury, The CARES Act Works for

5 All Americans, TREASURY.GOV, https://home.treasury.gov/policy-issues/cares (last

6 visited June 2, 2020).

7

34. Finally, Code section 6428(e) provides that if for a given individual,

8 immigration status and tax filing information for tax year 2020 yield a higher amount

9 payable than the Advance Payment actually paid out in the calendar year 2020, then

10 the excess will continue to be available as a refundable credit to be applied against

11 the individual’s tax liability for tax year 2020. More importantly, however, the

12 converse does not apply. Therefore, if the Advance Payment actually paid out in

13 calendar year 2020 exceeds the amount payable as determined by immigration status

14 and tax filing information for tax year 2020, then the individual is entitled to retain

15 the entirety of the Advance Payment and is not required to return any portion of the

16 Advance Credit received. See Code sec. 6428(e)(2). In other words, a given

17 individual’s Advance Payment amount represents the floor of the congressionally

18 intended relief directed toward that individual.

19

35. The Internal Revenue Service’s determination of an individual’s

20 eligibility for an Advance Payment and the amount of that Advance Payment

21 constitutes “final agency action” within the meaning of the Administrative Procedure

22 Act (APA), 5 U.S.C.A. § 704.

23

36. Congress has appropriated approximately $300 billion for the payment

24 of the Advance Payments. CARES Act, sec. 2201(f).

25

37. The Advance Payment has already been issued to one hundred million

26 Americans.

27

28

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EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 9 of 22 Page ID #:243

1

38. There are 1.2 million Americans married to immigrants who do not hold

2 Social Security numbers. Profile of the Unauthorized Population: United States,

3 MIGRATION POLICY INSTITUTE, https://www.migrationpolicy.org/data/unauthorized-

4 immigrant-population/state/US (last visited May 29, 2020).

5

39. Of these 1.2 million Americans, those who file joint tax returns and are

6 not in the military are ineligible for an Advance Payment and deprived of the right(s),

7 benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise

8 qualify.

9

40. Plaintiff Jane Doe is a U.S. citizen who earns less than $75,000 in

10 adjusted gross income, whose children, if any, are also U.S. citizens, and is excluded

11 from the government’s $300 billion coronavirus financial relief package because she

12 files her taxes jointly with her spouse, an immigrant who does not have a Social

13 Security number.

14

41. Plaintiff Jane Doe is married to an immigrant who pays taxes and files

15 tax returns with an Individual Taxpayer Identification Number. The couple file joint

16 tax returns and neither is in the military.

17

42. Had Plaintiff Jane Doe not been married to an immigrant with an

18 Individual Taxpayer Identification Number, Plaintiff and her children would have

19 qualified for an Advance Payment.

20

43. Plaintiff John Doe is a U.S. citizen who earns less than $75,000 in

21 adjusted gross income, whose children, if any, are also U.S. citizens, and is excluded

22 from the government’s $300 billion coronavirus financial relief package because he

23 files his taxes jointly with his spouse, an immigrant who does not have a Social

24 Security number.

25

44. Plaintiff John Doe is married to an immigrant who pays taxes and files

26 tax returns with an Individual Taxpayer Identification Number. The couple file joint

27 tax returns and neither is in the military.

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 10 of 22 Page ID #:244

1

45. Had Plaintiff John Doe not been married to an immigrant with an

2 Individual Taxpayer Identification Number, Plaintiff and his children would have

3 qualified for an Advance Payment.

4

CLASS ACTION ALLEGATIONS

5

46. Plaintiffs bring this claim individually and on behalf of the following

6 putative classes:

7

All United States Citizens married to immigrants that file

8

joint taxes wherein the immigrant-spouses file tax returns using an Individual Taxpayer Identification Number who

9

would have otherwise qualified for the Advance Payment.

10

47. The Class (“Class”) is so numerous that joinder of all individual

11 members (individually, “Class Member” or collectively, “Class Members”) in one

12 action would be impracticable, given the expected Class size and modest value of

13 individual claims.

14

48. There are more than 1.2 million Americans that are married to

15 immigrants who lack Social Security numbers.

16

49. Of the 1.2 million Americans, those who file joint tax returns and are not

17 in the military would meet the above-referenced Class definition.

18

50. Class Members can be identified through Defendants’ records.

19

51. Plaintiffs’ claims are typical of the claims of the Class Members, as they

20 are based on the same legal theory and arise from the same unlawful conduct.

21

52. There are common questions of law and fact affecting Class Members,

22 which common questions predominate over questions that may affect individual

23 members. These common questions include, but are not limited to:

24

a. Whether and to what extent Defendants have deprived Class

25

Members of their First Amendment Rights; Equal Protection and Due

26

Process under the Law;

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 11 of 22 Page ID #:245

1

b. Whether and to what extent Defendants have deprived Class

2

Members of their property interest;

3

c. Whether and to what extent Defendants have deprived Class

4

Members of their rights, privileges, and immunities secured by the

5

Constitution of the United States;

6

d. Whether Class members are entitled to actual damages, statutory

7

damages, and/or punitive damages as a result of Defendants’

8

wrongful conduct;

9

e. Whether Class Members are entitled to injunctive relief to redress the

10

imminent and currently ongoing harm faced as a result of their

11

exclusion from the CARES Act; and

12

f. Whether or not Class Members are entitled to Declaratory Judgment

13

relating to their classification and exclusion, among others, under the

14

CARES Act.

15

53. Plaintiffs will fairly and adequately represent the Class Members.

16 Plaintiffs have no interests that conflict with the interests of Class Members.

17 Plaintiffs have retained counsel experienced in handling civil rights cases, class

18 actions, and tax litigation Neither Plaintiffs nor their counsel have any interests that

19 might cause them not to pursue these claims vigorously.

20

54. This action should be maintained as a class action because the

21 prosecution of separate actions by individual Class Members would create a risk of

22 inconsistent or varying adjudications with respect to individual members that would

23 establish incompatible standards of conduct for the parties opposing the Class.

24

COUNT I

25

Violation(s) of United States Constitution (On Behalf of Plaintiffs and the Class)

26

27

55. Plaintiffs re-allege and incorporate paragraphs 1-54 of this Complaint as

28 though fully set forth herein.
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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 12 of 22 Page ID #:246

1

56. The Defendants, in their individual and official capacities as President of

2 the United States, Senator and Sponsor of the CARES Act in the United States, and

3 Acting Secretary of the U.S. Department of Treasury, violated Plaintiffs’ procedural

4 and substantive due process rights and deprived Plaintiffs of their rights, privileges,

5 and immunities secured by the Constitution of the United States.

6

57. The Defendants have engaged and continue to engage in behavior that

7 violates Plaintiffs’ constitutional property interest rights individually and as taxpayers

8 in the United States and have thereby irreparably injured Plaintiffs.

9

58. Defendants, acting under color of law, have violated rights secured to

10 Plaintiffs by the First, Fifth, and Fourteenth Amendments to the United States

11 Constitution including the right of association, the right to due process of law, the

12 right to equal protection under the law, and the penumbra of privacy rights created by

13 the First, Third, Fourth, and Fifth Amendments that creates a fundamental right to

14 marriage. Specifically, Defendants have failed, as applied to Plaintiffs, to treat them

15 as equal to their fellow United States citizens based solely on whom they chose to

16 marry.

17

59. Plaintiffs have lawfully filed taxes in the United States, yet they are

18 being denied the rights and privileges under the CARES Act.

19

60. Similarly situated U.S. citizens who are not married to immigrants and

20 who filed joint tax returns have not been denied such rights and privileges under the

21 “CARES” Act.

22

61. Plaintiffs bring this action against Defendants in their individual and

23 official capacities for purposes of seeking declaratory and injunctive relief and

24 challenges the practices and policies of discrimination both facially and as applied to

25 them, individually, and as the putative Class Plaintiffs.

26

62. The Fifth Amendment to the United States Constitution provides that no

27 person shall be “deprived of life, liberty or property without due process of law.” U.S.

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 13 of 22 Page ID #:247

1 Const. amend. V.

2

63. The Fourteenth Amendment to the United States Constitution,

3 enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any

4 person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

5 XIV, § 1. In addition, the Privileges and Immunities Clause of the Fourteenth

6 Amendment states that “the citizens of each state shall be entitled to all privileges and

7 immunities of citizens in the several states.” U.S. Const. amend. XIV, § 1 Clause 2.

8 Although the Fourteenth Amendment expressly applies to the State, it has been

9 construed to apply to the Federal Government through the Reverse Incorporation

10 Doctrine under Bolling v. Sharpe, 347 U.S. 497 (1954) and its progeny. See Brown v.

11 Board of Education of Topeka, 347 U.S. 483 (1954); Adarand Constructors, Inc. v.

12 Peña 515 U.S. 200 (1995) (applying strict scrutiny to the federal government based

13 on equal protection grounds).

14

Marriage as a Fundamental Right Emanating From

15

Our First, Fifth, and Fourteenth Amendments

16

64. The Supreme Court has reiterated in numerous contexts that the right to

17 marry is a fundamental right under the Due Process Clause. See, e.g., M. L. B. v. S. L.

18 J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996); Cleveland Bd. of

19 Ed. v. LaFleur, 414 U.S. 632, 639-640, 94 S. Ct. 791, 39 L. Ed. 2d 52

20 (1974); Griswold, supra, at 486, 85 S. Ct. 1678, 14 L. Ed. 2d

21 510; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86

22 L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed.

23 1042 (1923).

24

65. Discrimination based on the fundamental right to marry is presumptively

25 unconstitutional and subject to strict scrutiny.

26

66. The First Amendment to the U.S. Constitution states: “Congress shall

27 make no law respecting an establishment of religion, or prohibiting the free exercise

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 14 of 22 Page ID #:248

1 thereof; or abridging the freedom of speech, or of the press; or the right of the people

2 peaceably to assemble, and to petition the Government for a redress of grievances.”

3 U.S. Const. amend. I.

4

67. Specific guarantees in the Bill of Rights have penumbras, formed by

5 emanations from those guarantees that help give them life and substance. Various

6 guarantees create zones of privacy. The right of association contained in the

7 penumbra of the First Amendment is one of those fundamentally protected zones of

8 privacy. Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965).

9

68. The right of privacy was first recognized as protected by the Constitution

10 in Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965),

11 wherein the Griswold Court began by noting that “specific guarantees in the Bill of

12 Rights have penumbras, formed by emanations from those guarantees that help give

13 them life and substance.” 381 U.S. at 484.

14

69. The Griswold opinion stressed the sanctity of marriage lying within the

15 zone of privacy created by several fundamental constitutional guarantees. Griswold v.

16 Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682 (1965)

17

70. Defendants discriminate against Plaintiffs on the basis of their

18 fundamental rights of marriage.

19

71. The CARES Act provision at issue, on its face and as applied, or

20 threatened to be applied, violates the First Amendment of the United States

21 Constitution; Due Process Clause of the Fifth Amendment; Equal Protection and

22 Privileges and Immunities afforded under the Fourteenth Amendment under Reverse

23 Incorporation Doctrine; and the well-established fundamental right to marry.

24

72. The First, Fifth, and Fourteenth Amendments all amount to well-

25 established constitutional rights of which a reasonable person would have known was

26 violated personally and officially by the Defendants.

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 15 of 22 Page ID #:249

1

73. Defendants have no compelling interest justifying their policies of

2 discrimination based on marriage, and they cannot show that these classifications are

3 necessary to serve any legitimate governmental interest.

4

74. The Defendants treat Plaintiffs differently than U.S. Citizens who file

5 jointly with other U.S. Citizens, who are similarly situated.

6

75. The CARES Act singles out law-abiding and tax-paying U.S. Citizens

7 by excluding them from a benefit they and their children would otherwise be entitled

8 to with no compelling interest justifying the law and without serving any legitimate

9 governmental interest.

10

76. Sec. 6428 is not narrowly tailored to advance a compelling government

11 interest, nor is it rationally related to any legitimate government interest.

12

77. Accordingly, the CARES Act provision at issue violates the First

13 Amendment to the United States Constitution; Due Process Clause of the Fifth

14 Amendment to the United States Constitution; Equal Protection and Privileges and

15 Immunities under the Fourteenth Amendment under the Reverse Incorporation

16 Doctrine; and the well-established fundamental right to marry.

17

Alienage as a Suspect Class

18

78. “[Classifications] based on alienage, like those based on nationality or

19 race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are

20 a prime example of a ‘discrete and insular’ minority . . . for whom such heightened

21 judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372

22 (1971) (footnotes and citations omitted).

23

79. Discrimination based on the alienage of a U.S. citizen’s spouse is

24 presumptively unconstitutional and subject to strict scrutiny.

25

80. Defendants discriminate against Plaintiffs on the basis of the alienage of

26 their spouses.

27

28

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EXHIBIT A

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 16 of 22 Page ID #:250

1

81. The CARES Act provision at issue, on its face and as applied, or

2 threatened to be applied, violates the First Amendment to the United States

3 Constitution; Due Process Clause of the Fifth Amendment; Equal Protection and

4 Privileges and Immunities under the Fourteenth Amendment under the Reverse

5 Incorporation Doctrine; and the well-established fundamental right to marry.

6

82. Defendants have no compelling interest justifying their policies of

7 discrimination based on the marriage to a non-U.S. Citizen, and they cannot show

8 that this suspect class is necessary to serve any legitimate governmental interest.

9

83. The Defendants treat Plaintiffs differently than U.S. Citizens who marry

10 other U.S. Citizens, who are similarly situated.

11

84. Sec. 6428 is not narrowly tailored to advance a compelling government

12 interest, nor is it rationally related to any legitimate government interest.

13

85. Accordingly, the CARES Act provision at issue violates the First

14 Amendment of the United States Constitution; Due Process Clause of the Fifth

15 Amendment to the United States Constitution; Equal Protection and Privileges and

16 Immunities under the Fourteenth Amendment under the Reverse Incorporation

17 Doctrine; and the well-established fundamental right to marry.

18

COUNT II

19

Action for Temporary Restraining Order (“TRO”); Preliminary and Permanent Injunction;

20

and Declaratory Relief Against All Defendants

21

(On Behalf of Plaintiffs and the Class)

22

86. Plaintiffs re-allege and incorporate paragraphs 1-85 of this Complaint as

23 though fully set forth herein.

24

87. Plaintiffs seek the entry of a temporary restraining order, preliminary

25 and permanent injunction, and Declaratory Relief, including but not limited to the

26 following:

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 17 of 22 Page ID #:251

1

a. Issue a temporary, preliminary and permanent injunction against the

2

Defendants and all those acting in concert prohibiting enforcement of

3

the laws, as applied, at issue in this action; and

4

b. Issue a declaratory judgment that the CARES Act provision at issue

5

in this case, as applied to Plaintiffs and the putative class, violates the

6

constitutional and statutory rights of Plaintiffs and denies Plaintiffs

7

the privileges and immunities to which they would otherwise be

8

entitled.

9

88. Plaintiffs have no adequate remedy at law and are suffering irreparable

10 harm. There is no harm to the Defendants by this Court granting an injunction

11 prohibiting enforcement of the challenged CARES Act provision. Meanwhile, the

12 harm to Plaintiffs is severe. The public interest is clearly served by this Court acting

13 to order recognition of U.S. Citizens and their children consistent with the manner in

14 which the Federal Government treats similarly situated U.S. Citizens, without regard

15 to their marital status. Only prompt action by this federal Court ordering declaratory

16 and injunctive relief will serve the public interest.

17

89. Injunctive relief is appropriate under the circumstances because

18 Defendants have intentionally excluded otherwise eligible U.S. Citizens from

19 receiving the Advance Payment and more damaging, excluding them from a benefit

20 conferred upon all other U.S. Citizens simply because of whom they chose to marry,

21 which is facially discriminatory and retributive.

22

90. Plaintiffs have suffered, and will continue to suffer, immediate and

23 irreparable harm by reason of the conduct described above. Such immediate and

24 irreparable harm includes, but is not limited to, meeting the basic necessities of life,

25 including the ability to put food on the table, paying rent, insurance, health insurance,

26 and loss of privacy, reputation in the community, and dignity.

27

28

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Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 18 of 22 Page ID #:252

1

91. Plaintiffs do not have an adequate remedy at law to protect and re-

2 establish the rights which currently have been, and continue to be, violated by

3 Defendants’ actions. Plaintiffs’ rights cannot be obtained except through injunctive

4 relief.

5

92. Entering the injunctive relief that Plaintiffs are seeking will cause the

6 Defendants no harm.

7

93. Defendants will suffer no loss, if compelled to act in accordance with the

8 law, by refraining from discriminating against U.S. Citizens based upon their marital

9 status to immigrants.

10

94. There is a reasonable likelihood that the Plaintiffs will succeed on the

11 merits of her claims.

12

PRAYER FOR RELIEF

13

WHEREFORE, Plaintiffs JANE DOE and JOHN DOE, individually and on

14 behalf of the proposed Class, by and through their attorneys, pray for relief as

15 follows:

16

a. For an Order certifying this action as a class action and appointing Plaintiffs

17

and their Counsel to represent the Class;

18

b. An Order granting Blaise & Nitschke, P.C., Matern Law Group, P.C.,

19

*Khalaf & Abuzir, LLC, and *Moore Tax Law Group, LLC as class

20

counsel;

21

c. A temporary, preliminary and/or permanent injunction against the

22

Defendants, and all those acting in concert, prohibiting enforcement of the

23

laws as written and instead applying the provision as follows;

24

i. Issuing a Temporary Restraining Order to CARES Act Section 2101

25

to be applied as follows:

26

27

28

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EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 19 of 22 Page ID #:253

1

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

2

Internal Revenue Code of 1986 is amended by inserting after section

3

6427 the following new section:

4

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

5

[. . .]

6

“(h) Identification Number Requirement.—

7

“(1) IN GENERAL.—No credit shall be allowed under

8

subsection (a) to an eligible individual who does not include on

9

the return of tax for the taxable year—

10

“(A) such individual’s valid identification number,

11

“(B) in the case of a joint return, the valid identification

12

number of such individual’s spouse for at least one of the filing

13

spouses, and

14

“(C) in the case of any qualifying child taken into account

15

under subsection (b)(1)(B), the valid identification number of

16

such qualifying child.

17

“(2) VALID IDENTIFICATION NUMBER.—

18

“(A) IN GENERAL.—For purposes of paragraph (1), the term

19

‘valid identification number’ means a social security number

20

(as such term is defined in section 24(h)(7)).

21

ii. Issuing a Preliminary and Permanent Injunction amending the

22

CARES Act as identified above and enjoining Defendants from

23

affixing any new terms to the CARES Act, or any future legislation

24

designed to provide economic stimulus to United States citizens that

25

excludes mixed immigration status families.

26

d. A determination that the Exclusion Provision is unconstitutional and should

27

not be enforced;

28

- 19 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 20 of 22 Page ID #:254

1

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

2

case is subject to strict scrutiny;

3

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

4

case, as applied to the Plaintiffs, violates the constitutional and statutory

5

rights of Plaintiffs;

6

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

7

that are violative of the protections afforded to Plaintiffs and those similarly

8

situated under the United States Constitution, federal statutes, and those

9

cases interpreting the same under which this Court is bound under the

10

principles of stare decisis;

11

h. Enter an Order requiring the Defendants treat Plaintiffs and the Putative

12

Class equally in extending disbursement of the Advance Payment equally to

13

Plaintiffs and the Putative Class; Heckler v. Matthews 465 U.S. 728, 740

14

(1984); (quoting Iowa-Des Moines Nat'l Bank v. Bennett, 284 U.S. 239, 247

15

(1931);

16

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

17

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

18

JURY DEMAND

19

Plaintiffs respectfully demand a trial by jury of all matters so triable.

20

DOCUMENT PRESERVATION DEMAND

21

Plaintiffs hereby demand that Defendants take affirmative steps to preserve all

22 recordings, data, documents, and all other tangible things that relate to Plaintiffs and

23 the putative class and the events described herein. These materials are likely very

24 relevant to the litigation of this claim. If Defendants are aware of any third party that

25 has possession, custody, or control of any such materials, Plaintiffs demand that

26 Defendants request that such third party also take steps to preserve the materials. This

27

28

- 20 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 21 of 22 Page ID #:255

1 demand shall not narrow the scope of any independent document preservation duties

2 of the Defendants.

3

NOTICE OF LIEN AND ASSIGNMENT

4

All rights relating to attorneys’ fees have been assigned to counsel.

5 DATED: June 2, 2020

Respectfully submitted,

6

JANE DOE, individually and on behalf of

7

others similarly situated.

8

9

By: /s/ Heather L. Blaise

HEATHER L. BLAISE, ESQ. (SBN 261619)

10

123 N. Wacker Drive, Suite 250

11

Chicago, IL 60606

12

Telephone: 312-448-6602

Email: hblaise@blaisenitschkelaw.com

13

Attorney for Plaintiff

14

15

BLAISE & NITSCHKE, P.C.

Lana B. Nassar (IL Bar No. 6319396) *

16

Thomas J. Nitschke (IL Bar No. 6225740) *

17

Elisabeth A. Gavin (IL Bar No. 6297740) *

18

123 N. Wacker Drive, Suite 250

19

Chicago, IL 60606

T: (312) 448-6602

20

F: (312) 803-1940

21

lnassar@blaisenitschkelaw.com

22

MATERN LAW GROUP, PC

23

Matthew J. Matern (SBN 159798)

24

Joshua D. Boxer (SBN 226712)

25

1230 Rosecrans Avenue, Suite 200

26

Manhattan Beach, California 90266

27

Telephone: (310) 531-1900

Facsimile: (310) 531-1901

28

- 21 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-2 Filed 06/02/20 Page 22 of 22 Page ID #:256

1

mmatern@maternlawgroup.com

2

jboxer@maternlawgroup.com

3

Corey B. Bennett (SBN 267816)

4

1330 Broadway, Suite 428

5

Oakland, California 94612

6

Telephone: (510) 227-3998 Facsimile: (310) 531-1901

7

cbennett@maternlawgroup.com

8

9

MOORE TAX LAW GROUP LLC

Guinevere M. Moore (IL Bar No. 6297231)*

10

150 N. Wacker Drive, Suite 1250

11

Chicago, Illinois 60606

12

T: (312) 549-9992

F: (312) 549-9991

13

guinevere.moore@mooretaxlawgroup.com

14

15

KHALAF & ABUZIR, LLC

16

Vivian Khalaf (IL Bar No. 6210668) *

Omar Abuzir (IL Bar No. 6257708) *

17

20 N. Clark, Suite 720

18

Chicago, IL 60602

19

T: (708)-233-1122

F: (708)-233-1161

20

vkhalaf@immigrationjd.com

21

22

* Application for admission pro hac vice

forthcoming 23

24

25

26

27

28

- 22 -

EXHIBIT A

FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 26-3 Filed 06/02/20 Page 1 of 3 Page ID #:257

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

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

Economic Impact Payments, totals by State.

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

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

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

page 1

EXHIBIT B

Case 8:20-cv-00858-SVW-JEM Document 26-3 Filed 06/02/20 Page 2 of 3 Page ID #:258

Illinois

IL

Indiana

IN

Kansas

KS

Kentucky

KY

Louisiana

LA

Maine

ME

Maryland

MD

Massachusetts

MA

Michigan

MI

Minnesota

MN

Mississippi

MS

Missouri

MO

Montana

MT

Nebraska

NE

Nevada

NV

New Hampshire

NH

New Jersey

NJ

New Mexico

NM

New York

NY

North Carolina

NC

North Dakota

ND

Ohio

OH

Oklahoma

OK

Oregon

OR

Pennsylvania

PA

Rhode Island

RI

South Carolina

SC

South Dakota

SD

Tennessee

TN

Texas

TX

Utah

UT

Vermont

VT

Virginia

VA

Washington

WA

West Virginia

WV

Wisconsin

WI

Wyoming

WY

Foreign Addresses

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

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

Case 8:20-cv-00858-SVW-JEM Document 26-3 Filed 06/02/20 Page 3 of 3 Page ID #:259
Economic Impact Payment help available on IRS.gov IRS.gov has a variety of tools and resources available to help individuals and businesses navigate Economic Impact Payments and get the information they need about EIP and other CARES Act provisions. Economic Impact Payment FAQs: The IRS is seeing a variety of questions about Economic Impact Payments, ranging from eligibility to timing. These FAQs provide an overview and are updated frequently. Taxpayers should check the FAQs often for the latest additions; many common questions are answered on IRS.gov already, and more are being developed.
-30-
page 3

Case 8:20-cv-00858-SVW-JEM Document 26-4 Filed 06/02/20 Page 1 of 2 Page ID #:260
Economic impact payments: What you need to know
Updated with new information for seniors, retirees on April 1, 2020. Also see Treasury news release.
Check IRS.gov for the latest information: No action needed by most people at this time
IR-2020-61, March 30, 2020 WASHINGTON — The Treasury Department and the Internal Revenue Service today announced that distribution of economic impact payments will begin in the next three weeks and will be distributed automatically, with no action required for most people. However, some taxpayers who typically do not file returns will need to submit a simple tax return to receive the economic impact payment.
Who is eligible for the economic impact payment?
Tax filers with adjusted gross income up to $75,000 for individuals and up to $150,000 for married couples filing joint returns will receive the full payment. For filers with income above those amounts, the payment amount is reduced by $5 for each $100 above the $75,000/$150,000 thresholds. Single filers with income exceeding $99,000 and $198,000 for joint filers with no children are not eligible. Social Security recipients and railroad retirees who are otherwise not required to file a tax return are also eligible and will not be required to file a return. Eligible taxpayers who filed tax returns for either 2019 or 2018 will automatically receive an economic impact payment of up to $1,200 for individuals or $2,400 for married couples and up to $500 for each qualifying child.
How will the IRS know where to send my payment?
The vast majority of people do not need to take any action. The IRS will calculate and automatically send the economic impact payment to those eligible. For people who have already filed their 2019 tax returns, the IRS will use this information to calculate the payment amount. For those who have not yet filed their return for 2019, the IRS will use information from their 2018 tax filing to calculate the payment. The economic impact payment will be deposited directly into the same banking account reflected on the return filed.
The IRS does not have my direct deposit information. What can I do?
In the coming weeks, Treasury plans to develop a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately as opposed to checks in the mail.
I am not typically required to file a tax return. Can I still receive my payment?
EXHIBIT C

Case 8:20-cv-00858-SVW-JEM Document 26-4 Filed 06/02/20 Page 2 of 2 Page ID #:261
Yes. The IRS will use the information on the Form SSA-1099 or Form RRB-1099 to generate Economic Impact Payments to recipients of benefits reflected in the Form SSA-1099 or Form RRB-1099 who are not required to file a tax return and did not file a return for 2018 or 2019. This includes senior citizens, Social Security recipients and railroad retirees who are not otherwise required to file a tax return. Since the IRS would not have information regarding any dependents for these people, each person would receive $1,200 per person, without the additional amount for any dependents at this time.
I have a tax filing obligation but have not filed my tax return for 2018 or 2019. Can I still receive an economic impact payment?
Yes. The IRS urges anyone with a tax filing obligation who has not yet filed a tax return for 2018 or 2019 to file as soon as they can to receive an economic impact payment. Taxpayers should include direct deposit banking information on the return.
I need to file a tax return. How long are the economic impact payments available?
For those concerned about visiting a tax professional or local community organization in person to get help with a tax return, these economic impact payments will be available throughout the rest of 2020.
Where can I get more information?
The IRS will post all key information on IRS.gov/coronavirus as soon as it becomes available. The IRS has a reduced staff in many of its offices but remains committed to helping eligible individuals receive their payments expeditiously. Check for updated information on IRS.gov/coronavirus rather than calling IRS assistors who are helping process 2019 returns.
Page Last Reviewed or Updated: 16-Apr-2020

Case 8:20-cv-00858-SVW-JEM Document 26-5 Filed 06/02/20 Page 1 of 3 Page ID #:262
EXHIBIT D

Case 8:20-cv-00858-SVW-JEM Document 26-5 Filed 06/02/20 Page 2 of 3 Page ID #:263

Case 8:20-cv-00858-SVW-JEM Document 26-5 Filed 06/02/20 Page 3 of 3 Page ID #:264

Case 8:20-cv-00858-SVW-JEM Document 26-6 Filed 06/02/20 Page 1 of 12 Page ID #:265

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

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

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

Who May File Form I-130?

1. If you are a U.S. citizen, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for: A. Your spouse; B. Your unmarried children under 21 years of age; C. Your unmarried sons or daughters 21 years of age or older; D. Your married sons or daughters of any age; E. Your brothers or sisters (you must be 21 years of age or older); and F. Your mother or father (you must be 21 years of age or older).
2. If you are a lawful permanent resident of the United States, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for: A. Your spouse; B. Your unmarried child under 21 years of age; and C. Your unmarried son or daughter 21 years of age or older.

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

Form I-130 Instructions 02/13/19

Page 1 of 12

Case 8:20-cv-00858-SVW-JEM Document 26-6 Filed 06/02/20 Page 2 of 12 Page ID #:266
5. If you are the lawful permanent resident petitioner and the beneficiary qualifies under Items 2.A., 2.B., or 2.C. above, you are not required to file separate petitions for the beneficiary’s unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition.
6. The derivative beneficiaries described in Items 4. and 5. above may apply for an immigrant visa along with the beneficiary.
Who May Not File Form I-130?
You may NOT file Form I-130 for a person in the following categories:
1. An adoptive parent or adopted child, if the adoption took place after the child turned 16 years of age, or if the child has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition;
2. A natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special immigrant juvenile;
3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;
4. A spouse, if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was consummated;
5. A spouse, if you gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful permanent resident, unless: A. You are now a naturalized U.S. citizen; B. You have been a lawful permanent resident for at least five years; C. You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you gained your lawful permanent resident status) in order to evade any U.S. immigration law; or D. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse;
6. A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the bona fide marriage exemption under INA section 245(e)(3) if: A. You request in writing a bona fide marriage exemption and prove by clear and convincing evidence that the marriage is legally valid where it took place and that you and your spouse married in good faith and not for the purpose of obtaining lawful permanent resident status for your spouse and that no fee or any other consideration (other than appropriate attorney fees) was given to you for your filing of this petition. The request must be submitted with Form I-130; or B. Your spouse has lived outside the United States, after the marriage, for a period of at least two years;
7. Any person, if USCIS determines that he or she entered into or attempted or conspired to enter into a marriage in order to evade U.S. immigration laws; and
8. A grandparent, grandchild, nephew, niece, uncle, aunt, cousin, or parent-in-law.

Form I-130 Instructions 02/13/19 

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Case 8:20-cv-00858-SVW-JEM Document 26-6 Filed 06/02/20 Page 3 of 12 Page ID #:267

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

Form I-130 Instructions 02/13/19 

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Case 8:20-cv-00858-SVW-JEM Document 26-6 Filed 06/02/20 Page 4 of 12 Page ID #:268
2. If you need extra space to complete any item within this petition, use the space provided in Part 9. Additional Information or attach a separate sheet of paper; type or print your name and A-Number (if any) at the top of each sheet; indicate the Page Number, Part Number, and Item Number to which your answer refers; and sign and date each sheet.
3. Answer all questions fully and accurately. If a question does not apply to you (for example, if you have never been married and the question asks, “Provide the name of your current spouse”), type or print “N/A,” unless otherwise directed. If your answer to a question which requires a numeric response is zero or none (for example, “How many children do you have” or “How many times have you departed the United States”), type or print “None,” unless otherwise directed.
4. Enter dates in mm/dd/yyyy format. If you cannot provide an exact date, provide an approximate date in the same format and include an explanation in Part 9. Additional Information.
5. USCIS Online Account Number (if any). If you have previously filed an application, petition, or request using the USCIS online filing system (previously called USCIS Electronic Immigration System (USCIS ELIS)), provide the USCIS Online Account Number you were issued by the system. You can find your USCIS Online Account Number by logging in to your account and going to the profile page. If you previously filed certain applications, petitions, or requests on a paper form via a USCIS Lockbox facility, you may have received a USCIS Online Account Access Notice issuing you a USCIS Online Account Number. If you received such a notice, your USCIS Online Account Number can be found at the top of the notice. If you were issued a USCIS Online Account Number, enter it in the space provided at Part 2., Item Number 2. The USCIS Online Account Number is not the same as an A-Number.
6. Part 3. Biographic Information. Provide the biographic information requested in Part 3., Item Numbers 1. - 6. Providing this information as part of your petition may reduce the time you spend at your USCIS ASC appointment as described in the Biometric Services Appointment section of these Instructions.
A. Ethnicity and Race. Select the boxes that best describe your ethnicity and race.
Categories and Definitions for Ethnicity and Race
(1) Hispanic or Latino. A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. (NOTE: This category is only included under Ethnicity in Part 3., Item Number 1.)
(2) White. A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
(3) Asian. A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
(4) Black or African American. A person having origins in any of the black racial groups of Africa.
(5) American Indian or Alaska Native. A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.
(6) Native Hawaiian or Other Pacific Islander. A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
B. Height. Select the values that best match your height in feet and inches. For example, if you are five feet and nine inches, select “5” for feet and “09” for inches. Do not enter your height in meters or centimeters.
C. Weight. Enter your weight in pounds. If you do not know your weight, or need to enter a weight under 30 pounds or over 699 pounds, enter “000.” Do not enter your weight in kilograms.
D. Eye Color. Select the box that best describes the color of your eyes.
E. Hair Color. Select the box that best describes the color of your hair.

Form I-130 Instructions 02/13/19 

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

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

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

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

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

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

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

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

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

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 Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 1 of 22 Page ID #:314

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5 Attorneys for Plaintiffs,
6 JANE DOE and JOHN DOE, INDIVIDUALLY AND

7 ON BEHALF OF OTHERS SIMILARLY SITUATED

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

JANE DOE and JOHN DOE, individually and on behalf of others similarly situated,

12

Plaintiffs,

13

v.

14

DONALD J. TRUMP, in his individual

15 and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18

individual and official capacity as the Acting Secretary of the U.S. Department

19

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

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

21 the U.S. INTERNAL REVENUE

SERVICE; and the UNITED STATES OF

22 AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858-SVW-JEM Assigned to the Hon. Stephen V. Wilson FIRST AMENDED CLASS ACTION COMPLAINT
Action Filed: May 6, 2020

24

NOW COME Plaintiffs, JANE DOE and JOHN DOE (hereinafter collectively

25 referred to as “Plaintiffs”), individually and on behalf of the proposed class, by and

26 through their attorneys, Blaise & Nitschke, P.C. and Matern Law Group, P.C., and

27 submit their first amended class action complaint against DONALD J. TRUMP, in

28 his individual and official capacity as President of the United States; MITCH
- 1 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 2 of 22 Page ID #:315

1 MCCONNELL, in his individual and official capacity as United States Senator and

2 the Sponsor of S. 3548 CARES Act; STEVEN MNUCHIN, in his individual and

3 official capacity as the Acting Secretary of the U.S. Department of Treasury,

4 CHARLES RETTIG, in his individual and official capacity as U.S. Commissioner of

5 Internal Revenue; U.S. DEPARTMENT OF TREASURY; the U.S. INTERNAL

6 REVENUE SERVICE; and the UNITED STATES OF AMERICA, (hereinafter

7 collectively referred to as “Defendants”). In furtherance whereof, Plaintiffs state as

8 follows:

9

NATURE OF THE CASE

10

This is a class action based upon Defendants’ unconstitutional deprivation of

11 the rights, privileges, benefits and/or protections provided to United States citizens,

12 via the enactment and subsequent enforcement of the Coronavirus Aid, Relief, and

13 Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (hereinafter the

14 “CARES Act”).

15

PARTIES

16

1. Plaintiff, JANE DOE, is a U.S. citizen who at all times mentioned in this

17 Complaint resided in the Central District of California.

18

2. Plaintiff, JOHN DOE, is a U.S. citizen who at all times mentioned in this

19 Complaint resided in the Central District of California.

20

3. “Jane Doe” and “John Doe” are not Plaintiffs’ actual names, but rather

21 fictitious names for actual persons as herein described, in order to protect their actual

22 identities.

23

4. Defendant, DONALD J. TRUMP, in his individual and official capacity

24 as President of the United States, is the President of the United States who signed into

25 law the CARES Act on March 27, 2020.

26

27

28
- 2 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 3 of 22 Page ID #:316

1

5. Defendant, MITCH MCCONNELL, in his individual and official

2 capacity as United States Senator, is the Sponsor of the CARES Act, introduced in

3 the Senate as S. 3548 on March 19, 2020, and signed into law on March 27, 2020.

4

6. Defendant, STEVEN MNUCHIN, in his individual and official capacity,

5 is the Acting Secretary of the U.S. Department of Treasury. In that capacity, among

6 other things, he oversees the collection of revenue, the preparation of plans for the

7 improvement and management of the revenue and the preparation and report of

8 estimates of the public revenue and public expenditures. As Secretary, Defendant

9 Mnuchin exercises full authority to administer and enforce the internal revenue laws

10 and has the power to create an agency to enforce these laws. As part of his duties,

11 Defendant Mnuchin oversees the issuance of recovery payments to eligible

12 individuals under the CARES Act.

13

7. Defendant, CHARLES RETTIG, in his individual and official capacity

14 is the United States Commissioner of Internal Revenue Service. In that capacity,

15 Defendant Rettig administers the application of the internal revenue laws and tax

16 conventions to which the United States is a party. 26 U.S.C. § 7803. Defendant Rettig

17 reports to the Secretary of the Treasury Defendant Mnuchin. As part of his duties,

18 Defendant Rettig oversees the issuance of recovery payments to eligible individuals

19 under the CARES Act.

20

8. Defendant, U.S. DEPARTMENT OF THE TREASURY, is an agency of

21 the U.S. government. The Department of the Treasury operates and maintains

22 systems that are critical to the nation's financial infrastructure, such as the production

23 of coin and currency, the disbursement of payments to the American public, revenue

24 collection, and the borrowing of funds necessary to run the federal government.

25

9. Defendant, U.S. INTERNAL REVENUE SERVICE, is a bureau of the

26 U.S. Department of the Treasury organized to carry out the responsibilities of the

27 Secretary of the Treasury under 26 U.S.C. § 7801. The Internal Revenue Service was

28
- 3 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 4 of 22 Page ID #:317

1 created based on the legislative grant of authority to the Secretary of the Treasury to

2 enforce the internal revenue laws. The IRS calculates and sends recovery payments to

3 those eligible under the CARES Act.

4

10. Defendant, UNITED STATES OF AMERICA, acted in respect to this

5 matter through its agencies, U.S. DEPARTMENT OF THE TREASURY and U.S.

6 INTERNAL REVENUE SERVICE.

7

11. That Defendants are each sued in their individual and official capacities

8 and are the persons and/or offices most responsible for the conduct alleged herein.

9

12. Each of the Defendants had actual and/or constructive knowledge of the

10 acts of the other Defendants as described herein, and ratified, approved, joined in,

11 acquiesced in, and/or authorized the acts of the other, and/or retained the benefits of

12 the said acts.

13

JURISDICTION AND VENUE

14

12. This Court has Federal Question Jurisdiction pursuant to 28 U.S.C. §

15 1331 because the case arises under the Constitution, laws, or treaties of the United

16 States.

17

13. Venue is appropriate in the United States District Court for the Central

18 District of California pursuant to 28 U.S.C. §1391(b) because a substantial part of the

19 events giving rise to the claims alleged herein occurred in this judicial district.

20

14. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1367,

21 which gives the district court supplemental jurisdiction over state law claims.

22

STATEMENT OF FACTS

23

15. This civil rights action challenges the CARES Act on constitutional

24 grounds. The CARES Act denies tax-paying U.S. citizens their rights, privileges,

25 benefits and/or protections embodied in section 2201 of the legislation, captioned

26 “2020 Recovery Rebates for Individuals.”

27

28
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1

16. The CARES Act was introduced in the United States Senate (the

2 “Senate”) on March 19, 2020, as S. 3548, by Mitch McConnell (for himself,

3 Mr. Alexander, Mr. Crapo, Mr. Grassley, Mr. Rubio, Mr. Shelby, and Mr. Wicker).

4 166 Cong. Rec. S1828 (daily ed. Mar. 19, 2020).

5

17. The CARES Act was signed into law by President Donald J. Trump on

6 March 27, 2020. Statement by the President, WHITEHOUSE.GOV (March 27, 2020)

7 https://www.whitehouse.gov/briefings-statements/statement-by-the-president-38/

8 (last visited April 24, 2020).

9

18. Among other goals, the CARES Act seeks to provide “direct financial

10 help for the American people” affected by the 2020 coronavirus pandemic (“COVID-

11 19”). 166 Cong. Rec. S1828 (daily ed. Mar. 19, 2020).

12

19. The CARES Act payments are being distributed “automatically” and

13 there is “no action required for most people” to receive the Advance Payment. See IR

14 2020-61, March 30, 2020, attached hereto and incorporated herein as Exhibit A.

15

20. Section 2201 of the CARES Act aims to deliver on this goal by directing

16 the Internal Revenue Service to disburse so-called 2020 recovery rebates (hereinafter

17 “the Advance Payments”), with eligibility for and amounts of those Advance

18 Payments determined based on recipients’ immigration status, filing status for

19 Federal income tax purposes, and Federal income tax liability. The CARES Act’s

20 sponsor, Mitch McConnell, spelled out the objective of sending out the Advance

21 Payments: “to put cash in the hands of the American people” in an effort to “beat

22 back this virus.” 166 Cong. Rec. S1818 (daily ed. Mar. 19, 2020).

23

21. To allow for the issuance of the Advance Payments, the CARES Act

24 adds to the Internal Revenue Code of 1986 (“Code”) new section 6428, which

25 provides for a refundable tax credit in the applicable amount of the Advance Payment

26 against the given eligible individual’s 2020 Federal income tax liability. CARES Act,

27 sec. 2201(a).

28
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1

22. Ordinarily, a refundable tax credit in the Code would generate a payment

2 to the taxpayer, if at all, only upon filing and processing of the return for the

3 applicable year. That would, however, defer the issuance of the Advance Payments

4 until 2021, at the earliest, and defeat the legislative intent for authorizing their

5 issuance in the first place—immediate financial relief. Therefore, Code section

6 6428(f) provides for the credit to be refunded even before the end of the 2020 tax

7 year. In form, then, the Advance Payments constitute early payment of the section

8 6428 refundable tax credit, which otherwise would have become available only in

9 2021 or later.

10

23. Code section 6428(f)(3) urges the Internal Revenue Service to issue the

11 Advance Payments “as rapidly as possible.”

12

24. Accordingly, Code section 6428(f)(1) authorizes the Internal Revenue

13 Service to, in effect, determine eligibility for and applicable amount of the Advance

14 Payment for an individual based on that individual’s immigration status, filing status,

15 and tax liability for tax year 2019.

16

25. Moreover, for individuals who have not filed 2019 tax returns at the time

17 the Internal Revenue Service makes determinations with respect to their Advance

18 Payments, Code section 6428(f)(5) authorizes the agency to base that determination

19 on those individuals’ immigration status, filing status, and tax liabilities for tax year

20 2018.

21

26. An “eligible individual;” i.e., one entitled to receive the Advance

22 Payment, is any individual other than someone who is a nonresident alien or someone

23 who can be claimed as a dependent on another individual’s return. Code sec. 6428(d).

24

27. Code section 6428(a) sets the maximum amount of the Advance

25 Payment equal to the sum of: (1) $1,200 for each eligible individual ($2,400 for two

26 eligible individuals who together file a joint return); and (2) $500 multiplied by the

27 number of dependents under the age of 17 claimed on the eligible individual’s return.

28
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1

28. That maximum amount is to be reduced by 5 percent of the amount by

2 which the given eligible individual’s adjusted gross income exceeds a prespecified

3 threshold, determined by that individual’s filing status. That threshold is: $150,000 if

4 the individual files a joint return; $112,500 if the individual files as head of

5 household; and $75,000 if the individual files as a single or is not required to file.

6 Code sec. 6428(c).

7

29. Notwithstanding the preceding eligibility criteria and amount

8 determinants for Advance Payments, Code section 6428(g) contains an exclusion

9 provision. It excludes issuance of Advance Payments to any otherwise eligible

10 individual without a “valid” Social Security number; i.e., one valid for employment

11 purposes. It similarly excludes Advance Payments on account of dependents lacking

12 valid Social Security numbers claimed on an eligible individual’s return. For a joint

13 return, the provision requires valid Social Security numbers for both spouses. The

14 only exception is a joint return where at least one spouse was a member of the U.S.

15 Armed Forces during “the taxable year,” in which case only one spouse need have a

16 valid Social Security number. Code sec. 6428(g)(3).

17

30. Even though the CARES Act structures the issuance of an Advance

18 Payment as early payment of a 2020 refundable tax credit, it is evident from the

19 legislative history as well as the text, context, and structure of the statute that

20 Congress intended the Advance Payment itself, rather than the credit, as the

21 substantive relief being provided to taxpayers “to beat back the virus.” 166 Cong.

22 Rec. S1818 (daily ed. Mar. 19, 2020).

23

31. First, as noted above, the CARES Act’s sponsor, Mitch McConnell,

24 underscored the importance of “put[ting] cash in the hands of the American people.”

25

32. Second, and also as mentioned earlier, the statutory text charges the

26 Internal Revenue Service with sending out the Advance Payments “as rapidly as

27 possible,” authorizing the agency to determine eligibility and amounts payable based

28
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1 on immigration status and tax filing information from, alternatively, tax years 2019

2 and 2018. See Code sec. 6428(f)(1), (3), (5).

3

33. Third, the U.S. Department of Treasury stresses, “The CARES Act

4 Works for All Americans.” U.S. Department of Treasury, The CARES Act Works for

5 All Americans, TREASURY.GOV, https://home.treasury.gov/policy-issues/cares (last

6 visited June 2, 2020).

7

34. Finally, Code section 6428(e) provides that if for a given individual,

8 immigration status and tax filing information for tax year 2020 yield a higher amount

9 payable than the Advance Payment actually paid out in the calendar year 2020, then

10 the excess will continue to be available as a refundable credit to be applied against

11 the individual’s tax liability for tax year 2020. More importantly, however, the

12 converse does not apply. Therefore, if the Advance Payment actually paid out in

13 calendar year 2020 exceeds the amount payable as determined by immigration status

14 and tax filing information for tax year 2020, then the individual is entitled to retain

15 the entirety of the Advance Payment and is not required to return any portion of the

16 Advance Credit received. See Code sec. 6428(e)(2). In other words, a given

17 individual’s Advance Payment amount represents the floor of the congressionally

18 intended relief directed toward that individual.

19

35. The Internal Revenue Service’s determination of an individual’s

20 eligibility for an Advance Payment and the amount of that Advance Payment

21 constitutes “final agency action” within the meaning of the Administrative Procedure

22 Act (APA), 5 U.S.C.A. § 704.

23

36. Congress has appropriated approximately $300 billion for the payment

24 of the Advance Payments. CARES Act, sec. 2201(f).

25

37. The Advance Payment has already been issued to one hundred million

26 Americans.

27

28
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1

38. There are 1.2 million Americans married to immigrants who do not hold

2 Social Security numbers. Profile of the Unauthorized Population: United States,

3 MIGRATION POLICY INSTITUTE, https://www.migrationpolicy.org/data/unauthorized-

4 immigrant-population/state/US (last visited May 29, 2020).

5

39. Of these 1.2 million Americans, those who file joint tax returns and are

6 not in the military are ineligible for an Advance Payment and deprived of the right(s),

7 benefit(s) and/or privilege(s) conferred upon all other U.S. citizens who otherwise

8 qualify.

9

40. Plaintiff Jane Doe is a U.S. citizen who earns less than $75,000 in

10 adjusted gross income, whose children are also U.S. citizens, and is excluded from

11 the government’s $300 billion coronavirus financial relief package because she files

12 her taxes jointly with her spouse, an immigrant who does not have a Social Security

13 number.

14

41. Plaintiff Jane Doe is married to an immigrant who pays taxes and files

15 tax returns with an Individual Taxpayer Identification Number. The couple file joint

16 tax returns and neither is in the military.

17

42. Had Plaintiff Jane Doe not been married to an immigrant with an

18 Individual Taxpayer Identification Number, Plaintiff and her children would have

19 qualified for an Advance Payment.

20

43. Plaintiff John Doe is a U.S. citizen who earns less than $75,000 in

21 adjusted gross income, whose children are also U.S. citizens, and is excluded from

22 the government’s $300 billion coronavirus financial relief package because he files

23 her taxes jointly with his spouse, an immigrant who does not have a Social Security

24 number.

25

44. Plaintiff John Doe is married to an immigrant who pays taxes and files

26 tax returns with an Individual Taxpayer Identification Number. The couple file joint

27 tax returns and neither is in the military.

28
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1

45. Had Plaintiff John Doe not been married to an immigrant with an

2 Individual Taxpayer Identification Number, Plaintiff and his children would have

3 qualified for an Advance Payment.

4

CLASS ACTION ALLEGATIONS

5

46. Plaintiffs bring this claim individually and on behalf of the following

6 putative classes:

7

All United States Citizens married to immigrants that file

8

joint taxes wherein the immigrant-spouses file tax returns using an Individual Taxpayer Identification Number who

9

would have otherwise qualified for the Advance Payment.

10

47. The Class (“Class”) is so numerous that joinder of all individual

11 members (individually, “Class Member” or collectively, “Class Members”) in one

12 action would be impracticable, given the expected Class size and modest value of

13 individual claims.

14

48. There are more than 1.2 million Americans that are married to

15 immigrants who lack Social Security numbers.

16

49. Of the 1.2 million Americans, those who file joint tax returns and are not

17 in the military would meet the above-referenced Class definition.

18

50. Class Members can be identified through Defendants’ records.

19

51. Plaintiffs’ claims are typical of the claims of the Class Members, as they

20 are based on the same legal theory and arise from the same unlawful conduct.

21

52. There are common questions of law and fact affecting Class Members,

22 which common questions predominate over questions that may affect individual

23 members. These common questions include, but are not limited to:

24

a. Whether and to what extent Defendants have deprived Class

25

Members of their First Amendment Rights; Equal Protection and Due

26

Process under the Law;

27

28
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1

b. Whether and to what extent Defendants have deprived Class

2

Members of their property interest;

3

c. Whether and to what extent Defendants have deprived Class

4

Members of their rights, privileges, and immunities secured by the

5

Constitution of the United States;

6

d. Whether Class members are entitled to actual damages, statutory

7

damages, and/or punitive damages as a result of Defendants’

8

wrongful conduct;

9

e. Whether Class Members are entitled to injunctive relief to redress the

10

imminent and currently ongoing harm faced as a result of their

11

exclusion from the CARES Act; and

12

f. Whether or not Class Members are entitled to Declaratory Judgment

13

relating to their classification and exclusion, among others, under the

14

CARES Act.

15

53. Plaintiffs will fairly and adequately represent the Class Members.

16 Plaintiffs have no interests that conflict with the interests of Class Members.

17 Plaintiffs have retained counsel experienced in handling civil rights cases, class

18 actions, and tax litigation. Neither Plaintiffs nor their counsel have any interests that

19 might cause them not to pursue these claims vigorously.

20

54. This action should be maintained as a class action because the

21 prosecution of separate actions by individual Class Members would create a risk of

22 inconsistent or varying adjudications with respect to individual members that would

23 establish incompatible standards of conduct for the parties opposing the Class.

24

COUNT I

25

Violation(s) of United States Constitution

(On Behalf of Plaintiffs and the Class)

26

27

55. Plaintiffs re-allege and incorporate paragraphs 1-54 of this Complaint as

28 though fully set forth herein.
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1

56. The Defendants, in their individual and official capacities as President of

2 the United States, Senator and Sponsor of the CARES Act in the United States, and

3 Acting Secretary of the U.S. Department of Treasury, violated Plaintiffs’ procedural

4 and substantive due process rights and deprived Plaintiffs of their rights, privileges,

5 and immunities secured by the Constitution of the United States.

6

57. The Defendants have engaged and continue to engage in behavior that

7 violates Plaintiffs’ constitutional property interest rights individually and as taxpayers

8 in the United States and have thereby irreparably injured Plaintiffs.

9

58. Defendants, acting under color of law, have violated rights secured to

10 Plaintiffs by the First, Fifth, and Fourteenth Amendments to the United States

11 Constitution including the right of association, the right to due process of law, the

12 right to equal protection under the law, and the penumbra of privacy rights created by

13 the First, Third, Fourth, and Fifth Amendments that creates a fundamental right to

14 marriage. Specifically, Defendants have failed, as applied to Plaintiffs, to treat them

15 as equal to their fellow United States citizens based solely on whom they chose to

16 marry.

17

59. Plaintiffs have lawfully filed taxes in the United States, yet they are

18 being denied the rights and privileges under the CARES Act.

19

60. Similarly situated U.S. citizens who are not married to immigrants and

20 who filed joint tax returns have not been denied such rights and privileges under the

21 “CARES” Act.

22

61. Plaintiffs bring this action against Defendants in their individual and

23 official capacities for purposes of seeking declaratory and injunctive relief and

24 challenges the practices and policies of discrimination both facially and as applied to

25 them, individually, and as the putative Class Plaintiffs.

26

62. The Fifth Amendment to the United States Constitution provides that no

27 person shall be “deprived of life, liberty or property without due process of law.” U.S.

28
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1 Const. amend. V.

2

63. The Fourteenth Amendment to the United States Constitution,

3 enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any

4 person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

5 XIV, § 1. In addition, the Privileges and Immunities Clause of the Fourteenth

6 Amendment states that “the citizens of each state shall be entitled to all privileges and

7 immunities of citizens in the several states.” U.S. Const. amend. XIV, § 1 Clause 2.

8 Although the Fourteenth Amendment expressly applies to the State, it has been

9 construed to apply to the Federal Government through the Reverse Incorporation

10 Doctrine under Bolling v. Sharpe, 347 U.S. 497 (1954) and its progeny. See Brown v.

11 Board of Education of Topeka, 347 U.S. 483 (1954); Adarand Constructors, Inc. v.

12 Peña 515 U.S. 200 (1995) (applying strict scrutiny to the federal government based

13 on equal protection grounds).

14

Marriage as a Fundamental Right Emanating From

15

Our First, Fifth, and Fourteenth Amendments

16

64. The Supreme Court has reiterated in numerous contexts that the right to

17 marry is a fundamental right under the Due Process Clause. See, e.g., M. L. B. v. S. L.

18 J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996); Cleveland Bd. of

19 Ed. v. LaFleur, 414 U.S. 632, 639-640, 94 S. Ct. 791, 39 L. Ed. 2d 52

20 (1974); Griswold, supra, at 486, 85 S. Ct. 1678, 14 L. Ed. 2d

21 510; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86

22 L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed.

23 1042 (1923).

24

65. Discrimination based on the fundamental right to marry is presumptively

25 unconstitutional and subject to strict scrutiny.

26

66. The First Amendment to the U.S. Constitution states: “Congress shall

27 make no law respecting an establishment of religion, or prohibiting the free exercise

28 thereof; or abridging the freedom of speech, or of the press; or the right of the people
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1 peaceably to assemble, and to petition the Government for a redress of grievances.”

2 U.S. Const. amend. I.

3

67. Specific guarantees in the Bill of Rights have penumbras, formed by

4 emanations from those guarantees that help give them life and substance. Various

5 guarantees create zones of privacy. The right of association contained in the

6 penumbra of the First Amendment is one of those fundamentally protected zones of

7 privacy. Griswold v. Connecticut, 381 U.S. 479, 480, 85 S. Ct. 1678, 1679 (1965).

8

68. The right of privacy was first recognized as protected by the Constitution

9 in Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965),

10 wherein the Griswold Court began by noting that “specific guarantees in the Bill of

11 Rights have penumbras, formed by emanations from those guarantees that help give

12 them life and substance.” 381 U.S. at 484.

13

69. The Griswold opinion stressed the sanctity of marriage lying within the

14 zone of privacy created by several fundamental constitutional guarantees. Griswold v.

15 Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682 (1965)

16

70. Defendants discriminate against Plaintiffs on the basis of their

17 fundamental rights of marriage.

18

71. The CARES Act provision at issue, on its face and as applied, or

19 threatened to be applied, violates the First Amendment of the United States

20 Constitution; Due Process Clause of the Fifth Amendment; Equal Protection and

21 Privileges and Immunities afforded under the Fourteenth Amendment under Reverse

22 Incorporation Doctrine; and the well-established fundamental right to marry.

23

72. The First, Fifth, and Fourteenth Amendments all amount to well-

24 established constitutional rights of which a reasonable person would have known was

25 violated personally and officially by the Defendants.

26

27

28
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1

73. Defendants have no compelling interest justifying their policies of

2 discrimination based on marriage, and they cannot show that these classifications are

3 necessary to serve any legitimate governmental interest.

4

74. The Defendants treat Plaintiffs differently than U.S. Citizens who file

5 jointly with other U.S. Citizens, who are similarly situated.

6

75. The CARES Act singles out law-abiding and tax-paying U.S. Citizens

7 by excluding them from a benefit they and their children would otherwise be entitled

8 to with no compelling interest justifying the law and without serving any legitimate

9 governmental interest.

10

76. Sec. 6428 is not narrowly tailored to advance a compelling government

11 interest, nor is it rationally related to any legitimate government interest.

12

77. Accordingly, the CARES Act provision at issue violates the First

13 Amendment to the United States Constitution; Due Process Clause of the Fifth

14 Amendment to the United States Constitution; Equal Protection and Privileges and

15 Immunities under the Fourteenth Amendment under the Reverse Incorporation

16 Doctrine; and the well-established fundamental right to marry.

17

Alienage as a Suspect Class

18

78. “[Classifications] based on alienage, like those based on nationality or

19 race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are

20 a prime example of a ‘discrete and insular’ minority . . . for whom such heightened

21 judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372

22 (1971) (footnotes and citations omitted).

23

79. Discrimination based on the alienage of a U.S. citizen’s spouse is

24 presumptively unconstitutional and subject to strict scrutiny.

25

80. Defendants discriminate against Plaintiffs on the basis of the alienage of

26 their spouses.

27

28
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1

81. The CARES Act provision at issue, on its face and as applied, or

2 threatened to be applied, violates the First Amendment to the United States

3 Constitution; Due Process Clause of the Fifth Amendment; Equal Protection and

4 Privileges and Immunities under the Fourteenth Amendment under the Reverse

5 Incorporation Doctrine; and the well-established fundamental right to marry.

6

82. Defendants have no compelling interest justifying their policies of

7 discrimination based on the marriage to a non-U.S. Citizen, and they cannot show

8 that this suspect class is necessary to serve any legitimate governmental interest.

9

83. The Defendants treat Plaintiffs differently than U.S. Citizens who marry

10 other U.S. Citizens, who are similarly situated.

11

84. Sec. 6428 is not narrowly tailored to advance a compelling government

12 interest, nor is it rationally related to any legitimate government interest.

13

85. Accordingly, the CARES Act provision at issue violates the First

14 Amendment of the United States Constitution; Due Process Clause of the Fifth

15 Amendment to the United States Constitution; Equal Protection and Privileges and

16 Immunities under the Fourteenth Amendment under the Reverse Incorporation

17 Doctrine; and the well-established fundamental right to marry.

18

COUNT II

19

Action for Temporary Restraining Order (“TRO”);

Preliminary and Permanent Injunction;

20

and Declaratory Relief Against All Defendants

21

(On Behalf of Plaintiffs and the Class)

22

86. Plaintiffs re-allege and incorporate paragraphs 1-85 of this Complaint as

23 though fully set forth herein.

24

87. Plaintiffs seek the entry of a temporary restraining order, preliminary

25 and permanent injunction, and Declaratory Relief, including but not limited to the

26 following:

27

28
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1

a. Issue a temporary, preliminary and permanent injunction against the

2

Defendants and all those acting in concert prohibiting enforcement of

3

the laws, as applied, at issue in this action; and

4

b. Issue a declaratory judgment that the CARES Act provision at issue

5

in this case, as applied to Plaintiffs and the putative class, violates the

6

constitutional and statutory rights of Plaintiffs and denies Plaintiffs

7

the privileges and immunities to which they would otherwise be

8

entitled.

9

88. Plaintiffs have no adequate remedy at law and is suffering irreparable

10 harm. There is no harm to the Defendants by this Court granting an injunction

11 prohibiting enforcement of the challenged CARES Act provision. Meanwhile, the

12 harm to Plaintiffs is severe. The public interest is clearly served by this Court acting

13 to order recognition of U.S. Citizens and their children consistent with the manner in

14 which the Federal Government treats similarly situated U.S. Citizens, without regard

15 to their marital status. Only prompt action by this federal Court ordering declaratory

16 and injunctive relief will serve the public interest.

17

89. Injunctive relief is appropriate under the circumstances because

18 Defendants have intentionally excluded otherwise eligible U.S. Citizens from

19 receiving the Advance Payment and more damaging, excluding them from a benefit

20 conferred upon all other U.S. Citizens simply because of whom they chose to marry,

21 which is facially discriminatory and retributive.

22

90. Plaintiffs have suffered, and will continue to suffer, immediate and

23 irreparable harm by reason of the conduct described above. Such immediate and

24 irreparable harm includes, but is not limited to, meeting the basic necessities of life,

25 including the ability to put food on the table, paying rent, insurance, health insurance,

26 and loss of privacy, reputation in the community, and dignity.

27

28
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1

91. Plaintiffs do not have an adequate remedy at law to protect and re-

2 establish the rights which currently have been, and continue to be, violated by

3 Defendants’ actions. Plaintiffs’ rights cannot be obtained except through injunctive

4 relief.

5

92. Entering the injunctive relief that Plaintiffs are seeking will cause the

6 Defendants no harm.

7

93. Defendants will suffer no loss, if compelled to act in accordance with the

8 law, by refraining from discriminating against U.S. Citizens based upon their marital

9 status to immigrants.

10

94. There is a reasonable likelihood that the Plaintiffs will succeed on the

11 merits of their claims.

12

PRAYER FOR RELIEF

13

WHEREFORE, Plaintiffs JANE DOE and JOHN DOE, individually and on

14 behalf of the proposed Class, by and through their attorneys, pray for relief as

15 follows:

16

a. For an Order certifying this action as a class action and appointing Plaintiffs

17

and their Counsel to represent the Class;

18

b. An Order granting Blaise & Nitschke, P.C., Matern Law Group, P.C.,

19

*Khalaf & Abuzir, LLC, and *Moore Tax Law Group, LLC as class

20

counsel;

21

c. A temporary, preliminary and/or permanent injunction against the

22

Defendants, and all those acting in concert, prohibiting enforcement of the

23

laws as written and instead applying the provision as follows;

24

i. Issuing a Temporary Restraining Order to CARES Act Section 2101

25

to be applied as follows:

26

27

28
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1

“(a) In General.—Subchapter B of chapter 65 of subtitle F of the

2

Internal Revenue Code of 1986 is amended by inserting after section

3

6427 the following new section:

4

SEC. 6428. 2020 RECOVERY REBATES FOR INDIVIDUALS

5

[. . .]

6

“(h) Identification Number Requirement.—

7

“(1) IN GENERAL.—No credit shall be allowed under

8

subsection (a) to an eligible individual who does not include on

9

the return of tax for the taxable year—

10

“(A) such individual’s valid identification number,

11

“(B) in the case of a joint return, the valid identification

12

number of such individual’s spouse for at least one of the filing

13

spouses, and

14

“(C) in the case of any qualifying child taken into account

15

under subsection (b)(1)(B), the valid identification number of

16

such qualifying child.

17

“(2) VALID IDENTIFICATION NUMBER.—

18

“(A) IN GENERAL.—For purposes of paragraph (1), the term

19

‘valid identification number’ means a social security number

20

(as such term is defined in section 24(h)(7)).

21

ii. Issuing a Preliminary and Permanent Injunction amending the

22

CARES Act as identified above and enjoining Defendants from

23

affixing any new terms to the CARES Act, or any future legislation

24

designed to provide economic stimulus to United States citizens that

25

excludes mixed immigration status families.

26

d. A determination that the Exclusion Provision is unconstitutional and should

27

not be enforced;

28
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1

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

2

case is subject to strict scrutiny;

3

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

4

case, as applied to the Plaintiffs, violates the constitutional and statutory

5

rights of Plaintiffs;

6

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

7

that are violative of the protections afforded to Plaintiff and those similarly

8

situated under the United States Constitution, federal statutes, and those

9

cases interpreting the same under which this Court is bound under the

10

principles of stare decisis;

11

h. Enter an Order requiring the Defendants treat Plaintiffs and the Putative

12

Class equally in extending disbursement of the Advance Payment equally to

13

Plaintiffs and the Putative Class; Heckler v. Matthews 465 U.S. 728, 740

14

(1984); (quoting Iowa-Des Moines Nat'l Bank v. Bennett, 284 U.S. 239, 247

15

(1931);

16

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

17

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

18

JURY DEMAND

19

Plaintiffs respectfully demand a trial by jury of all matters so triable.

20

DOCUMENT PRESERVATION DEMAND

21

Plaintiffs hereby demand that Defendants take affirmative steps to preserve all

22 recordings, data, documents, and all other tangible things that relate to Plaintiffs and

23 the putative class and the events described herein. These materials are likely very

24 relevant to the litigation of this claim. If Defendants are aware of any third party that

25 has possession, custody, or control of any such materials, Plaintiffs demand that

26 Defendants request that such third party also take steps to preserve the materials. This

27

28
- 20 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 21 of 22 Page ID #:334

1 demand shall not narrow the scope of any independent document preservation duties

2 of the Defendants.

3

NOTICE OF LIEN AND ASSIGNMENT

4

All rights relating to attorneys’ fees have been assigned to counsel.

5 DATED: June 3, 2020

Respectfully submitted,

6

JANE DOE and JOHN DOE, individually and

7

on behalf of others similarly situated.

8

9

By: /s/ Heather L. Blaise

HEATHER L. BLAISE, ESQ. (SBN 261619)

10

123 N. Wacker Drive, Suite 250

11

Chicago, IL 60606

12

Telephone: 312-448-6602

Email: hblaise@blaisenitschkelaw.com

13

Attorney for Plaintiffs

14

15

BLAISE & NITSCHKE, P.C.

16

Lana B. Nassar (IL Bar No. 6319396) * Thomas J. Nitschke (IL Bar No. 6225740) *

17

Elisabeth A. Gavin (IL Bar No. 6297740) *

18

123 N. Wacker Drive, Suite 250

19

Chicago, IL 60606

T: (312) 448-6602

20

F: (312) 803-1940

21

lnassar@blaisenitschkelaw.com

22

MATERN LAW GROUP

23

Matthew J. Matern (SBN 159798)

24

Joshua D. Boxer (SBN 226712)

25

1230 Rosecrans Avenue, Suite 200

26

Manhattan Beach, CA 90266

T: (310) 531-1900

27

F: (310) 531-1901

28

mmatern@maternlawgroup.com

- 21 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28 Filed 06/03/20 Page 22 of 22 Page ID #:335

1

jboxer@maternlawgroup.com

2

MOORE TAX LAW GROUP LLC

3

Guinevere M. Moore (IL Bar No. 6297231)*

4

150 N. Wacker Drive, Suite 1250

5

Chicago, Illinois 60606

6

T: (312) 549-9992 F: (312) 549-9991

7

guinevere.moore@mooretaxlawgroup.com

8

9

KHALAF & ABUZIR, LLC

Vivian Khalaf (IL Bar No. 6210668) *

10

Omar Abuzir (IL Bar No. 6257708) *

11

20 N. Clark, Suite 720

12

Chicago, IL 60602

T: (708)-233-1122

13

F: (708)-233-1161

14

vkhalaf@immigrationjd.com

15

16

* Application for admission pro hac vice

forthcoming

17

18

19

20

21

22

23

24

25

26

27

28
- 22 FIRST AMENDED CLASS ACTION COMPLAINT

Case 8:20-cv-00858-SVW-JEM Document 28-1 Filed 06/03/20 Page 1 of 2 Page ID #:336
Economic impact payments: What you need to know
Updated with new information for seniors, retirees on April 1, 2020. Also see Treasury news release.
Check IRS.gov for the latest information: No action needed by most people at this time
IR-2020-61, March 30, 2020 WASHINGTON — The Treasury Department and the Internal Revenue Service today announced that distribution of economic impact payments will begin in the next three weeks and will be distributed automatically, with no action required for most people. However, some taxpayers who typically do not file returns will need to submit a simple tax return to receive the economic impact payment.
Who is eligible for the economic impact payment?
Tax filers with adjusted gross income up to $75,000 for individuals and up to $150,000 for married couples filing joint returns will receive the full payment. For filers with income above those amounts, the payment amount is reduced by $5 for each $100 above the $75,000/$150,000 thresholds. Single filers with income exceeding $99,000 and $198,000 for joint filers with no children are not eligible. Social Security recipients and railroad retirees who are otherwise not required to file a tax return are also eligible and will not be required to file a return. Eligible taxpayers who filed tax returns for either 2019 or 2018 will automatically receive an economic impact payment of up to $1,200 for individuals or $2,400 for married couples and up to $500 for each qualifying child.
How will the IRS know where to send my payment?
The vast majority of people do not need to take any action. The IRS will calculate and automatically send the economic impact payment to those eligible. For people who have already filed their 2019 tax returns, the IRS will use this information to calculate the payment amount. For those who have not yet filed their return for 2019, the IRS will use information from their 2018 tax filing to calculate the payment. The economic impact payment will be deposited directly into the same banking account reflected on the return filed.
The IRS does not have my direct deposit information. What can I do?
In the coming weeks, Treasury plans to develop a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately as opposed to checks in the mail.
I am not typically required to file a tax return. Can I still receive my payment?
EXHIBIT A

Case 8:20-cv-00858-SVW-JEM Document 28-1 Filed 06/03/20 Page 2 of 2 Page ID #:337
Yes. The IRS will use the information on the Form SSA-1099 or Form RRB-1099 to generate Economic Impact Payments to recipients of benefits reflected in the Form SSA-1099 or Form RRB-1099 who are not required to file a tax return and did not file a return for 2018 or 2019. This includes senior citizens, Social Security recipients and railroad retirees who are not otherwise required to file a tax return. Since the IRS would not have information regarding any dependents for these people, each person would receive $1,200 per person, without the additional amount for any dependents at this time.
I have a tax filing obligation but have not filed my tax return for 2018 or 2019. Can I still receive an economic impact payment?
Yes. The IRS urges anyone with a tax filing obligation who has not yet filed a tax return for 2018 or 2019 to file as soon as they can to receive an economic impact payment. Taxpayers should include direct deposit banking information on the return.
I need to file a tax return. How long are the economic impact payments available?
For those concerned about visiting a tax professional or local community organization in person to get help with a tax return, these economic impact payments will be available throughout the rest of 2020.
Where can I get more information?
The IRS will post all key information on IRS.gov/coronavirus as soon as it becomes available. The IRS has a reduced staff in many of its offices but remains committed to helping eligible individuals receive their payments expeditiously. Check for updated information on IRS.gov/coronavirus rather than calling IRS assistors who are helping process 2019 returns.
Page Last Reviewed or Updated: 16-Apr-2020

 
 Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 1 of 30 Page ID #:339

1 NICOLA T. HANNA

United States Attorney

2 THOMAS D. COKER

Assistant United States Attorney

3 Chief, Tax Division

MELISSA BRIGGS (Cal. Bar No. 320697)

4 JOHN D. ELLIS (Cal. Bar No. 322922)

Assistant United States Attorneys

5

Federal Building, Suite 7211

300 North Los Angeles Street

6

Los Angeles, California 90012

Telephone: (213) 894-6165

7

(213) 894-2740

Facsimile: (213) 894-0115

8

E-mail: melissa.briggs2@usdoj.gov

john.ellis3@usdoj.gov

9

Attorneys for the

10 United States of America

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

Motion to Dismiss; Memorandum of Points

16 v.

and Authorities; Proposed Order

17

Hearing Date: July 13, 2020

DONALD J. TRUMP, et al.,

Time:

1:30 p.m.

18

Courtroom: 10A

Defendants.

Location:

350 W. 1st Street

19

Los Angeles, CA 90012

20

Hon. Stephen V. Wilson

21

22

PLEASE TAKE NOTICE that on the above date, or as soon thereafter as counsel

23 can be heard, the United States of America1 (United States) will move to dismiss this

24 action pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). This motion is

25

26

1 The first amended complaint (amended complaint, ECF 28) names as defendants

27

various government officials and agencies. The only proper party defendant is the United States of America. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.

28 1985).

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 2 of 30 Page ID #:340

1 based upon this notice, the attached memorandum, and such further evidence and

2 argument as the Court may permit. The conference of counsel pursuant to Local Rule 7-

3 3 took place on June 1, 2020.

4

5 Dated: June 15, 2020

Respectfully submitted,

6

NICOLA T. HANNA

United States Attorney

7

THOMAS D. COKER

Assistant United States Attorney

8

Chief, Tax Division

9

/s/ John D. Ellis

MELISSA BRIGGS

10

JOHN D. ELLIS

Assistant United States Attorneys

11

Attorneys for the

12

United States of America

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 3 of 30 Page ID #:341

1

TABLE OF CONTENTS

2

3 I. INTRODUCTION ................................................................................................... 1

4 II. THE CARES ACT...................................................................................................2

5 III. PLAINTIFFS’ AMENDED COMPLAINT ............................................................ 4

6 IV. ARGUMENT...........................................................................................................5

7

A. This action should be dismissed for lack of jurisdiction............................... 5

8

1. 26 U.S.C. § 7422 provides plaintiffs’ remedy .................................... 6

9

2. Plaintiffs lack standing and their claims are not yet ripe.................... 8

10

3. Plaintiffs cannot rely on the APA as the basis of this Court’s

jurisdiction ........................................................................................ 11

11 4. Plaintiffs cannot avoid the bar of sovereign immunity by naming

12

individual government officials ........................................................ 14

13

B. This action should be dismissed for failure to state a claim ....................... 14

14 15 16 17 18
V. 19

1. Section 6428(g) does not violate due process or equal protection principles by implicating the right to marry ..................................... 15
2. Section 6428(g) does not make distinctions based on alienage, and even assuming arguendo it does, federal distinctions based on alienage are subject to rational-basis review ............................... 18
3. Plaintiffs have not pleaded a cognizable legal theory ...................... 20 CONCLUSION...................................................................................................... 22

20

21

22

23

24

25

26

27

28 i

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 4 of 30 Page ID #:342

1

TABLE OF AUTHORITIES

2 CASES

3 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .................................................... 9

4 Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984) ............................................................... 19

5 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) ..................................... 16, 18, 20-21

6 Apache Bend Apts., Ltd. v. United States, 987 F.2d 1174 (5th Cir. 1993) ....................... 6

7 Arizona v. United States, 567 U.S. 387 (2012)................................................................ 20

8 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ........................................ 8

9 Armstrong & Armstrong, Inc. v. United States, 356 F. Supp. 514 (E.D. Wash. 1973) .. 12

10 Barr v. Commissioner, 51 T.C. 693 (1969) .................................................................... 20

11 Barter v. United States, 550 F.2d 1239 (7th Cir. 1977) .................................................. 17

12 Bennett v. Spear, 520 U.S. 154 (1997) ........................................................................... 13

13 Bowen v. Massachusetts, 487 U.S. 879 (1988) .......................................................... 12-13

14 Brushaber v. Union P.R. Co., 240 U.S. 1 (1916) ............................................................ 21

15 Califano v. Jobst, 434 U.S. 47 (1977) ....................................................................... 16-17

16 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) .........................................12-13

17 Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ..................................... 14

18 Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate,

19

596 F.3d 1036 (9th Cir. 2010) ................................................................................. 1

20 Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995) ...................................................... 8

21 Druker v. Commissioner, 697 F.2d 46 (2d Cir. 1982) ............................................... 16-17

22 Dunn & Black P.S. v. United States, 492 F.3d 1084 (9th Cir. 2007) ................................ 6

23 FCC v. Beach Communications, 508 U.S. 307 (1993) .................................................... 21

24 Fournier v. Sebelius, 718 F.3d 1110 (9th Cir. 2013) ...................................................... 21

25 Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................................................ 11

26 Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014) ..................... 6

27 Gaylor v. Mnuchin, 919 F.3d 420 (7th Cir. 2019) ............................................................ 8

28 ii

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 5 of 30 Page ID #:343
1 Graham v. Richardson, 403 U.S. 365 (1971) ................................................................. 20 2 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) ........................... 12 3 Hansen v. Dep’t of Treasury, 528 F.3d 598 (9th Cir. 2007) .......................................... 19 4 Heller v. Doe, 509 U.S. 312 (1993) ........................................................................... 20-21 5 Hinck v. United States, 550 U.S. 501 (2007) ................................................................... 12 6 Hofstetter v. Commissioner, 98 T.C. 695 (1992) ............................................................ 20 7 Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983) ............................................................. 6 8 Hooper v. California, 155 U.S. 648 (1895) ..................................................................... 14 9 Hutchinson v. United States, 677 F.2d 1322 (9th Cir. 1982) .......................................... 14 10 INS v. Chadha, 462 U.S. 919 (1983) .............................................................................. 14 11 Lane v. Pena, 518 U.S. 187 (1996) ................................................................................... 6 12 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ........................ 14 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................... 8 14 Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978) ..................................................... 17 15 Mathews v. Diaz, 426 U.S. 67 (1976) .............................................................................. 20 16 McGuire v. United States, 550 F.3d 903 (9th Cir. 2008) ............................................... 5-6 17 Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972) ............................................... 8-9 18 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................... 14, 21 19 Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) .......................... 9 20 Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144 (9th Cir. 2017) ......................... 11 21 Oatman v. Dep’t of Treasury, 34 F.3d 787 (9th Cir. 1994) .............................................. 7 22 Pareto v. FDIC, 139 F.3d 696 (9th Cir. 1998) ................................................................ 14 23 Preiser v. Newkirk, 422 U.S. 395 (1975) ........................................................................... 8 24 Quarty v. United States, 170 F.3d 961 (9th Cir. 1999) .............................................. 6, 8-9 25 Rand v. United States, 249 U.S. 503 (1918) ..................................................................... 8 26 Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) .............. 14 27 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) .................................................... 9 28
iii

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 6 of 30 Page ID #:344

1 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ................................ 14-15

2 Sarmiento v. United States, 678 F.3d 147 (2d Cir. 2012) ................................................. 7

3 Schinasi v. Commissioner, 53 T.C. 382 (1969) ........................................................ 17, 20

4 Sorenson v. Sec’y of Treasury, 752 F.2d 1433 (9th Cir. 1985) ........................................ 7

5 Sorenson v. Sec’y of Treasury, 475 U.S. 851 (1986) ........................................................ 7

6 In re Talmadge, 832 F.2d 1120 (9th Cir. 1987) ........................................................ 16, 18

7 Toll v. Moreno, 458 U.S. 1 (1982) .................................................................................. 20

8 Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ................................................. 10

9 U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) .............. 11, 13-14

10 United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008) ...................... 6-7, 13

11 United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269 (1931) ....................................... 8

12 United States v. Kim, 806 F.3d 1161 (9th Cir. 2015) ........................................................ 5

13 United States v. Md. Savings-Share Ins. Corp., 400 U.S. 4 (1970) ................................ 15

14 Vermont Agency of Natural Res. v. United States, 529 U.S. 765 (2000) ......................... 8

15 Warnke v. United States, 641 F. Supp. 1083 (E.D. Ky. 1986) ......................................... 9

16 Wash. Toxics Coal. v. EPA, 413 F.3d 1024 (9th Cir. 2005) ........................................... 11

17 Zablocki v. Redhail, 434 U.S. 374 (1978) ................................................................. 16-17

18 PUBLIC LAWS

19 Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. 116-136

20

(March 27, 2020) .................................................................................................... 2

21 The Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613

22

(Feb. 13, 2008) ...................................................................................................... 18

23

24 STATUTES

25

Internal Revenue Code, 26 U.S.C.

26

§ 1 .......................................................................................................... 17-18

27

§ 24 ..................................................................................................... 2, 7, 18

28 iv

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 7 of 30 Page ID #:345

1

§ 32 ......................................................................................................... 7, 18

2

§ 107 ......................................................................................................... 8, 9

3

§ 152 ............................................................................................................. 2

4

§ 1402 ............................................................................................................ 8

5

§ 6013 ......................................................................................................... 17

6

§ 6401 ........................................................................................................... 7

7

§ 6428 .................................................................................................. passim

8

§ 6511 ........................................................................................................... 7

9

§ 6532 ........................................................................................................... 7

10

§ 7422 .................................................................................................. 6-8, 12

11

Other Statutes

12

5 U.S.C. § 701 .............................................................................................. 1

13

5 U.S.C. § 702 ............................................................................................ 11

14

5 U.S.C. § 704 ....................................................................................... 11-13

15

28 U.S.C. § 1331 ............................................................................................ 6

16

28 U.S.C. § 1346 ....................................................................................... 6-8

17

28 U.S.C. § 1491 ....................................................................................... 7-8

18

31 U.S.C. § 3727 ............................................................................................ 5

19

42 U.S.C. § 405 ........................................................................................... 18

20

21 IRS PUBLICATIONS AND WEBSITES

22 Economic Impact Payment Information Center, available at

23 https://www.irs.gov/coronavirus/economic-impact-payment-information-center

24 ........................................................................................................................ 2-4, 10, 13

25 IRS Publication 519, available at https://www.irs.gov/pub/irs-pdf/p519.pdf ................ 19

26

27

28 v

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 8 of 30 Page ID #:346

1 OTHER AUTHORITIES

2 20 C.F.R. § 422.104 ........................................................................................................ 18

3 26 C.F.R. § 301.6109-1.................................................................................................... 19

4 Congressional Research Service, Report R43840, “Federal Income Taxes and

5

Noncitizens: Frequently Asked Questions” .......................................................... 19

6 Congressional Research Service, Report R46339, “Unauthorized Immigrants’ Eligibility

7

for COVID-19 Relief Benefits: In Brief” ............................................................. 19

8 Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act,

9

H.R. 6800, 116th Cong. (2020) .............................................................................. 10

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 vi

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 9 of 30 Page ID #:347

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Plaintiffs Jane Doe and John Doe, proceeding pseudonymously,2 contend that the

4 Internal Revenue Service (IRS) failed to issue each of them an advance refund of a 2020

5 tax credit because they are each married to and have filed joint federal income tax

6 returns with individuals without social security numbers (SSNs). Assuming the

7 allegations in the amended complaint are true, each plaintiff could qualify for the credit

8 by selecting the “married filing separately” status when filing a 2020 income tax return.

9 Plaintiffs, however, request injunctive and declaratory relief, including a declaration that

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

11

This action should be dismissed for lack of jurisdiction and for failure to state a

12 claim upon which relief can be granted. Plaintiffs lack standing, and their claims are not

13 yet ripe for review. Congress did not create a justiciable right to an advance refund, and

14 plaintiffs’ eligibilities for a tax credit cannot be determined until the 2020 tax year ends

15 and each selects a filing status when filing a 2020 tax return. Plaintiffs cannot rely on

16 the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., as the jurisdictional

17 basis for their claims because Congress has provided them a specific remedy under the

18 tax refund provisions. In addition, plaintiffs fail to state a cognizable constitutional

19 claim. Accordingly, plaintiffs’ action should be dismissed.

20

21

22

23

2 Plaintiffs filed this case using pseudonyms. To determine whether to allow a

24

party to proceed anonymously, the district court must balance (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; (3) the

25

anonymous party’s vulnerability to [] retaliation; (4) the prejudice to the opposing party; and (5) the public interest. See Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate,

26

596 F.3d 1036, 1042 (9th Cir. 2010). Plaintiffs have not sought this Court’s permission to proceed pseudonymously or alleged any circumstances that would allow them to do

27

so. Moreover, not knowing plaintiffs’ identities prevents the United States from evaluating plaintiffs’ contentions that each of them would have received an advance

28 refund if his or her spouse had an SSN. (See ECF 28 ¶¶ 42, 45.)

1

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 10 of 30 Page ID #:348

1 II. THE CARES ACT

2

On March 27, 2020, the President of the United States of America signed into law

3 the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. 116-136.

4 The CARES Act added section 6428 to the Internal Revenue Code. Pub. L. 116-136,

5 sec. 2201(a). Section 6428 authorizes an eligible individual to claim a tax credit

6 (CARES Act credit) for the 2020 tax year. The amount of the credit is based on the

7 individual’s filing status, her adjusted gross income, and the number of qualifying

8 children (within the meaning of 26 U.S.C. § 24(c)) claimed on her return. See 26 U.S.C.

9 § 6428(a) and (c). Nonresident aliens, dependents (as defined in 26 U.S.C. § 152), and

10 estates and trusts are ineligible for the credit. 26 U.S.C. § 6428(d).

11

As relevant to the amended complaint, no CARES Act credit will be allowed to an

12 individual who fails to provide a valid identification number for herself, any qualifying

13 children, or her spouse, if filing a joint return.3 26 U.S.C. § 6428(g)(1). A valid

14 identification number means an SSN valid for employment (see 26 U.S.C. § 24(h)(7)) or

15 in the case of a qualifying child who is legally adopted or placed for adoption, the

16 adoption taxpayer identification number of such child. 26 U.S.C. § 6428(g)(2).

17

If a married individual may not claim a CARES Act credit on a joint return

18 because her spouse lacks an SSN valid for employment, she may claim the credit for

19 herself and any qualifying children (assuming that they also have valid identification

20 numbers) by using the married filing separately filing status. See Economic Impact

21 Payment Information Center, https://www.irs.gov/coronavirus/economic-impact-

22 payment-information-center Q&A 26 (“when spouses file jointly, both spouses must

23 have valid SSNs to receive a Payment with one exception . . . If spouses file separately,

24

25

26

3 A married couple may provide only one spouse’s SSN to claim a CARES Act

credit on a joint return if at least one of the spouses was a member of the Armed Forces

27 of the United States at any time during the taxable year. 26 U.S.C. § 6428(g)(3).

28 2

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 11 of 30 Page ID #:349

1 the spouse who has an SSN may qualify for a Payment; the other spouse without a valid

2 SSN will not qualify.”) (last accessed June 12, 2020).4

3

In accordance with section 6428(f), the IRS has begun issuing advance refunds of

4 the CARES Act credit. See generally https://www.irs.gov/coronavirus/economic-

5 impact-payment-information-center (last visited June 10, 2020). The advance refunds

6 are computed based on the information available to the IRS. The IRS will first use

7 information from an individual’s 2019 tax return. 26 U.S.C. § 6428(f)(1). If no 2019

8 tax return was filed, the IRS may use information from the individual’s 2018 tax return.

9 26 U.S.C. § 6428(f)(5). If no 2018 or 2019 tax return was filed, the IRS may use

10 information provided to it on a 2019 Form SSA-1099, Social Security Benefit Statement,

11 or Form RRB-1099, Social Security Equivalent Benefit Statement. Id. By statute, the

12 IRS is directed to “refund or credit any overpayment attributable to [] section [6428] as

13 rapidly as possible,” but the IRS is authorized to issue advance refunds through

14 December 31, 2020. 26 U.S.C. § 6428(f)(3)(A).

15

Section 6428 does not confer upon an eligible individual any justiciable right to an

16 advance refund. Nor does it confer any right to receive an advance refund at a particular

17 time or in a particular manner. Section 6428(a) provides that an individual’s CARES

18 Act credit “shall be allowed as a credit against the tax imposed by subtitle A for the first

19 taxable year beginning in 2020.” There is no corresponding mandate that the IRS

20 immediately issue a CARES Act credit in the form of an advance refund. If the IRS

21 does not issue an advance refund to an individual who will eventually qualify for a

22 CARES Act credit, there is no mechanism in section 6428 by which the individual can

23 compel it to do so. Instead, the statute contemplates that any advance refund an

24 individual receives will be reconciled with the CARES Act credit reported on her 2020

25 tax return. See 26 U.S.C. § 6428(e) (providing that the amount of any CARES Act credit

26

27

4 A printout of this webpage as of June 12, 2020, with the questions and answers

28 referenced in this motion is attached for the Court’s convenience.

3

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1 will be reduced (but not below zero) by the aggregate amount of any advance refunds

2 and credits made or allowed) and 26 U.S.C. § 6428(f)(3)(A) (providing that any advance

3 refunds and credits will be made by December 31, 2020). Thus, an eligible individual

4 who qualifies for a tax benefit under section 6428 will receive it in one of three ways: (1)

5 as an advance refund in 2020, (2) as a CARES Act credit upon filing her 2020 tax return,

6 or (3) as an advance refund and a CARES Act credit.5

7

Some individuals who believe they will be eligible for a CARES Act credit have

8 received a smaller advance refund than they expected or no advance refund at all. These

9 individuals will have to wait until the 2021 filing season to claim and receive the

10 CARES Act credit on their 2020 tax return. See Economic Impact Payment Information

11 Center, https://www.irs.gov/coronavirus/economic-impact-payment-information-center

12 Q&A 32 (“If you did not receive the full amount to which you believe you are entitled,

13 you will be able to claim the additional amount when you file your 2020 tax return.”)

14 (last accessed June 12, 2020).

15 III. PLAINTIFFS’ AMENDED COMPLAINT

16

Plaintiffs’ amended complaint, filed June 3, 2020, alleges that plaintiffs are

17 excluded from receiving advance refunds of the CARES Act credit because they have

18 each filed tax returns for prior tax years using the married filing jointly status with their

19 respective spouses, who have individual taxpayer identification numbers (ITINs) rather

20 than SSNs. (ECF 28 ¶¶ 40, 41, 43, 44.) Plaintiffs contend that they cannot and will not

21 receive an advance refund of the CARES Act credit and that the IRS’s determination of

22 an individual’s eligibility for such a refund is “final agency action” within the meaning

23 of 5 U.S.C. § 704. (Id. ¶¶ 22, 35, 36.)

24

In Count I of the amended complaint, plaintiffs allege that the CARES Act

25 violates the United States Constitution. (ECF 28 ¶¶ 55-85.) Their constitutional

26

27

5 The third scenario would occur when the IRS issues an individual an advance

28 refund that is less than the CARES Act credit reported on her return.

4

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 13 of 30 Page ID #:351

1 arguments are twofold. First, they allege discrimination based on the fundamental right

2 to marry arising under the First Amendment, the Due Process Clause of the Fifth

3 Amendment, and the Equal Protection and Privileges and Immunities clauses of the

4 Fourteenth Amendment. (Id. ¶¶ 64-77.) They specifically contend that section 6428(g)

5 unconstitutionally discriminates based on whom they have chosen to marry and should

6 be stricken because it is “not narrowly tailored to advance a compelling government

7 interest, nor is it rationally related to any legitimate government interest.” (Id. ¶ 76.)

8 Second, plaintiffs allege that they have been discriminated against based on the alienage

9 of their spouses and that such discrimination is “presumptively unconstitutional and

10 subject to strict scrutiny.” (Id. ¶¶ 78-85.)

11

In Count II of the amended complaint, plaintiffs seek a “temporary, preliminary

12 and permanent injunction” and a declaratory judgment that section 6428(g) violates their

13 constitutional and statutory rights and “denies plaintiffs the privileges and immunities to

14 which they would otherwise be entitled.”6 (ECF 28 ¶ 87.) Plaintiffs allege that not

15 receiving an advance refund has caused harm, “including the ability to put food on the

16 table, paying rent, insurance, health insurance, and loss of privacy, reputation in the

17 community, and dignity.” (Id. ¶ 90.) Although the amended complaint does not

18 explicitly demand payment of the advance refunds, it requests an order compelling

19 defendants to “treat Plaintiffs and the Putative Class equally in extending disbursement

20 of the Advance [Refunds]” to them. (Id. at 20, ¶ h.)

21 IV. ARGUMENT

22

A. This action should be dismissed for lack of jurisdiction

23

It is fundamental that the United States cannot be sued without an “unequivocally

24 expressed waiver of sovereign immunity by Congress.” McGuire v. United States, 550

25

26

6 The amended complaint (ECF 28 at 21) asserts that “[a]ll rights relating to attorneys’ fees have been assigned to counsel.” However, the Anti-Assignment Act, 31

27

U.S.C. § 3727, prohibits assignment of such claims against the United States without the consent of the United States. See United States v. Kim, 806 F.3d 1161, 1169-70 (9th Cir.

28 2015).

5

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1 F.3d 903, 910 (9th Cir. 2008) (quoting Dunn & Black P.S. v. United States, 492 F.3d

2 1084, 1088 (9th Cir. 2007)). “A waiver of the Federal Government’s sovereign

3 immunity must be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S.

4 187, 192 (1996). Indeed, without “clarity of expression” of consent to the waiver of

5 immunity in the text of a statute, this Court lacks jurisdiction, and the claim must be

6 dismissed. Id. Thus, unless plaintiffs identify a waiver of sovereign immunity on which

7 their claims are based, this Court must dismiss the action for lack of jurisdiction. See id.

8

In the tax context, Congress has expressly limited the circumstances under which

9 suits can be brought against the government through a carefully articulated scheme. As

10 the Supreme Court has repeatedly emphasized, a refund suit is the only way a taxpayer

11 can litigate her taxes in district court, and such a suit can be brought only if certain

12 jurisdictional prerequisites have been satisfied. United States v. Clintwood Elkhorn

13 Mining Co., 553 U.S. 1, 5-8 (2008). This limitation applies to constitutional challenges

14 to the Internal Revenue Code like the challenge before this Court. See id. at 9 (Code’s

15 administrative exhaustion requirements apply to constitutional claims); Quarty v. United

16 States, 170 F.3d 961, 973 (9th Cir. 1999) (same); see also Freedom from Religion

17 Found., Inc. v. Lew, 773 F.3d 815, 825 (7th Cir. 2014); Apache Bend Apts., Ltd. v.

18 United States, 987 F.2d 1174, 1177-79 & n.4 (5th Cir. 1993) (en banc).

19

1. 26 U.S.C. § 7422 provides plaintiffs’ remedy

20

Plaintiffs seek declaratory and injunctive relief which, if granted, would require

21 the United States to issue tax refunds. Plaintiffs contend that this Court can assume

22 jurisdiction over their claims pursuant to 28 U.S.C. § 1331. (ECF 28 ¶ 12.) However,

23 section 1331 is a general jurisdictional statute which cannot by itself be construed as a

24 waiver of sovereign immunity. See, e.g., Holloman v. Watt, 708 F.2d 1399, 1401 (9th

25 Cir. 1983). The district courts’ jurisdiction (concurrent with the United States Court of

26 Federal Claims) over tax refund suits is set forth in 28 U.S.C. § 1346(a)(1). The specific

27 waiver of sovereign immunity that would allow the refund of a tax credit, including the

28 6

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1 credit that is the subject of this case, is contained in 26 U.S.C. § 7422(a). Clintwood,

2 553 U.S. at 5-8; see also Sarmiento v. United States, 678 F.3d 147, 151 (2d Cir. 2012)

3 (addressing the taxpayers’ claim for a payment of a tax refund under former section

4 6428, another advance refund “stimulus check” program, after the taxpayers “filed an

5 administrative claim with the IRS under 26 U.S.C. § 7422 seeking to recover the

6 withheld” refund payments).

7

Refundable tax credits such as the Earned Income Credit (EIC), 26 U.S.C. § 32,

8 the Additional Child Tax Credit (CTC), 26 U.S.C. § 24(d), and the CARES Act credit,

9 26 U.S.C. § 6428, create a legal fiction that the recipient has overpaid her taxes, thereby

10 entitling her to a tax refund as a mechanism for achieving policy goals. See Sorenson v.

11 Sec’y of Treasury, 475 U.S. 851, 864 (1986) (discussing the EIC). If an individual’s

12 refundable credits exceed her tax liability (after first reducing that liability by other

13 credits), the excess amount “shall be considered an overpayment,” and she is eligible for

14 a refund in an amount corresponding to that constructive overpayment. See 26 U.S.C. §

15 6401(b)(1). An individual can seek such a credit by submitting to the IRS an

16 administrative refund claim pursuant to section 7422. See Sorenson v. Sec’y of Treasury,

17 752 F.2d 1433, 1439 (9th Cir. 1985). Assuming the claim is timely, see 26 U.S.C. §

18 6511(a), and the IRS denies the claim or fails to act upon it within six months, see 26

19 U.S.C. § 6532(a)(1), the individual may then sue for a refund of the credit pursuant to

20 section 7422(a). See 28 U.S.C. §§ 1346(a)(1), 1491; see also Sorenson, 752 F.2d at

21 1439; Oatman v. Dep’t of Treasury, 34 F.3d 787, 789 (9th Cir. 1994).

22

There is no exception set forth in section 6428 to these basic jurisdictional

23 requirements. Thus, to challenge the constitutionality of section 6428(g), plaintiffs must

24 each file a joint income tax return for 2020 after the filing season begins in 2021, then

25 each file a timely administrative refund claim with the IRS requesting a CARES Act

26 credit because section 6428(g) is unconstitutional. Until their administrative refund

27 claims are denied or six months pass, plaintiffs cannot maintain a refund suit. See 28

28 7

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1 U.S.C. §§ 1346(a)(1), 1491; Quarty, 170 F.3d at 973 (dismissing constitutional claim for

2 lack of jurisdiction because plaintiff was required to comply with requirements of

3 section 7422 to raise constitutional claim despite “possible futility”) (citing United States

4 v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 273 (1931)); Rand v. United States, 249 U.S.

5 503, 510 (1918).

6

2. Plaintiffs lack standing and their claims are not yet ripe

7

Article III standing requires that a plaintiff establish (1) a concrete and

8 particularized injury that is actual and imminent, as opposed to conjectural or

9 hypothetical, (2) a fairly traceable causal connection between the injury and the alleged

10 conduct, and (3) a substantial likelihood that the injury will be redressed by a favorable

11 decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Vermont Agency

12 of Natural Res. v. United States, 529 U.S. 765, 771 (2000). The elements of standing

13 “are not mere pleading requirements but rather an indispensable part of the plaintiff’s

14 case,” and the plaintiff bears the burden of proof with respect to each element. Lujan,

15 504 U.S. at 561. If at any point an element of standing is not met, the case should be

16 dismissed. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)

17 (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

18

In order to have standing to challenge a tax benefit as unconstitutional, a plaintiff

19 must (among other requirements) actually seek the tax benefit herself. See Droz v.

20 Commissioner, 48 F.3d 1120, 1122 & n.1 (9th Cir. 1995) (recognizing that taxpayer had

21 standing to raise an Establishment Clause challenge to a religious exemption from the

22 self-employment tax under 26 U.S.C. § 1402(g) for sects opposed to certain insurance,

23 where he claimed, and was denied, the exemption); see also Gaylor v. Mnuchin, 919

24 F.3d 420, 425-26 (7th Cir. 2019) (taxpayers had standing to challenge 26 U.S.C. § 107

25 because the IRS took longer than six months to act on their refund requests claiming

26 exemptions under that section); Moritz v. Commissioner, 469 F.2d 466, 467 (10th Cir.

27 1972) (addressing an Equal Protection challenge brought by a single male who claimed a

28 8

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1 dependent-care expense deduction that the statute limited to married or widowed men,

2 but allowed to women regardless of marital status); Warnke v. United States, 641 F.

3 Supp. 1083, 1089 (E.D. Ky. 1986) (addressing an Establishment Clause challenge to

4 regulations under 26 U.S.C. § 107 by a taxpayer who claimed, and was denied, the

5 exclusion). In these cases, the individuals actually sought the tax benefit from the taxing

6 authority and then litigated their own tax liability, either by way of a deficiency

7 proceeding in Tax Court (as in Droz and Moritz) or by filing a refund suit (as in Gaylor

8 and Warnke).

9

To have standing to challenge the constitutionality of section 6428(g), plaintiffs

10 must have first sought and been denied a CARES Act credit. Thus, as we have

11 previously explained, each plaintiff must file a joint tax return for 2020, submit an

12 administrative claim for refund, and wait until the IRS denies (or does not act upon

13 within six months) that claim. These requirements apply even if plaintiffs believe that

14 performing them would be an exercise in futility. See Quarty, 170 F.3d at 973. Until

15 plaintiffs have followed the administrative procedures for claiming a credit, their injuries

16 are merely hypothetical, and they lack standing to bring their claims.

17

Finally, plaintiffs’ challenge to section 6428(g) fails as a jurisdictional matter

18 under the ripeness doctrine. The ripeness doctrine is intended to avoid “premature

19 adjudication” over “abstract disagreements” and to postpone judicial review until “an

20 administrative decision has been formalized and its effects felt in a concrete way by the

21 challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967).

22 Where agency action offers a benefit or establishes criteria for dispensing benefits,

23 courts generally have concluded that the plaintiff’s application for benefits must be

24 denied before a claim is ripe for review. See Nat’l Park Hospitality Ass’n v. Dep’t of

25 Interior, 538 U.S. 803, 809 (2003); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57-

26 59 (1993). Courts have been particularly reluctant to find a specific pre-enforcement

27 challenge ripe where (as in the tax refund context) a statutory scheme creates a separate

28 9

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1 process for review. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-209

2 (1994).

3

As explained above, section 6428 does not guarantee any individual an advance

4 refund. Rather, the statutory scheme that Congress selected provides that the IRS will

5 issue a CARES Act credit to an eligible individual in one of three ways: (1) as an

6 advance refund in 2020; (2) as a refundable tax credit upon the filing of her 2020 tax

7 return; or (3) as a combination of the two. Individuals like plaintiffs who have not

8 received an advance refund must therefore claim a CARES Act credit on their 2020 tax

9 return in order to obtain it. But the amount (if any) of the CARES Act credit to which

10 plaintiffs will be entitled cannot yet be determined. The amount of the credit will be

11 determined by factors set forth in section 6428, including plaintiffs’ respective filing

12 statuses, adjusted gross incomes, and number of qualifying children, if any, they will

13 claim on their 2020 tax returns. See 26 U.S.C. §§ 6428(a), (c). These factors cannot be

14 determined because the 2020 tax year will not end until December 31, 2020. Indeed,

15 even under plaintiffs’ incorrect view that the statute entitles them to an advance refund,

16 the harm has not yet occurred because section 6428 authorizes the IRS to make advance

17 refunds through December 31, 2020. 26 U.S.C. § 6428(f)(3)(A); See Economic Impact

18 Payment Information Center, https://www.irs.gov/coronavirus/economic-impact-

19 payment-information-center Q&A 21 (“Payments will be made throughout the rest of

20 2020.”) (last accessed June 12, 2020).

21

Although plaintiffs believe they will not qualify for a CARES Act credit or

22 advance refund, their circumstances may change. For instance, there are legislative

23 efforts to amend section 6428(g) which, if enacted, may result in plaintiffs receiving an

24 advance refund or CARES Act credit even if they elect to file joint returns. See Health

25 and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R. 6800,

26 116th Cong. (2020) § 20102. Additionally, plaintiffs may elect to file their 2020 tax

27 returns using the married filing separately filing status and thus be eligible for the

28 10

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1 CARES Act credit under the current version of section 6428(g). Or their respective

2 spouses may qualify for SSNs or join the military before the year ends. See 26 U.S.C.

3 §§ 6428(g)(1) and (3). Lastly, plaintiffs’ financial circumstances may improve,

4 completely eliminating their eligibility for the credit based on their respective adjusted

5 gross incomes. See 26 U.S.C. § 6428(c). In short, plaintiffs’ eligibility for CARES Act

6 credits and the amounts of the credits will be uncertain until the end of the year.

7

3. Plaintiffs cannot rely on the APA as the basis of this Court’s

8

jurisdiction

9

Plaintiffs’ amended complaint relies on the APA, specifically 5 U.S.C. § 702,

10 implying that it provides the required waiver of sovereign immunity for their claims.

11 (ECF 28 ¶ 35.) Although section 702 contains a broad waiver of sovereign immunity,

12 section 704 contains express limits on this Court’s jurisdiction for claims brought under

13 the APA. See Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1171 (9th Cir.

14 2017).

15

Section 704 provides that: “[a]gency action made reviewable by statute and final

16 agency action for which there is no other adequate remedy in a court are subject to

17 judicial review.” Thus, determining whether jurisdiction exists under section 704

18 requires inquiries into whether the agency’s action is “final,” see Franklin v.

19 Massachusetts, 505 U.S. 788, 796-97 (1992), and whether other provisions could

20 provide plaintiffs with a remedy. See U.S. Army Corps of Engineers v. Hawkes Co., 136

21 S. Ct. 1807, 1815 (2016) (“[A]gency action is reviewable under the APA only if there

22 are no adequate alternatives to APA review in court.”). If an agency’s action is not final

23 or another avenue of relief exists, there is no jurisdiction under section 704, and the APA

24 claims must be dismissed. See id. at 1813-14; Wash. Toxics Coal. v. EPA, 413 F.3d

25 1024, 1034 (9th Cir. 2005) (“Because this substantive statute independently authorizes a

26 private right of action, the APA does not govern the plaintiffs’ claims.”).

27

28 11

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1

Here, there is no jurisdiction pursuant to section 704 because, as we have

2 discussed, Congress has designated section 7422 as the exclusive vehicle to recover tax

3 credits, including the CARES Act credit that is the subject of this case. “It is a ‘well-

4 established principle that, in most contexts, a precisely drawn, detailed statute pre-empts

5 more general remedies.’” City of Oakland v. Lynch, 798 F.3d 1159, 1165 (9th Cir. 2015)

6 (quoting Hinck v. United States, 550 U.S. 501, 506 (2007)). This is particularly true

7 with respect to the “general grant of review in the APA,” which “Congress did not intend

8 . . . to duplicate existing procedures for review of agency actions.” Bowen v.

9 Massachusetts, 487 U.S. 879, 903 (1988); see also City of Oakland, 798 F.3d at 1165

10 (quoting Bowen). Thus, the specific remedy set forth in section 7422 forecloses the

11 availability of general relief under section 704. See City of Oakland, 798 F.3d at 1165

12 (“Permitting parties to file under the APA and circumvent the short deadlines Congress

13 established . . . would make mush of the law.”); see also Hinck, 550 U.S. at 506 (holding

14 a “precisely drawn, detailed statute” in the Internal Revenue Code provided the

15 taxpayer’s “exclusive” and “specific” remedy); Armstrong & Armstrong, Inc. v. United

16 States, 356 F. Supp. 514, 521 (E.D. Wash. 1973) (where “relief is at least available . . .

17 judicial review may not be predicated on the [APA]”), aff’d, 514 F.2d 402 (9th Cir.

18 1975).

19

As we have explained, Congress has created a statutory scheme in section 7422

20 that allows plaintiffs, like all other taxpayers who seek tax credits, to obtain relief.

21 Plaintiffs cannot escape this conclusion through artful pleading. Although plaintiffs’

22 amended complaint purports to seek declaratory and injunctive relief, plaintiffs’ alleged

23 injury is the denial of a tax credit, and the relief they seek is issuance of the credit. This

24 Court is not required to accept plaintiffs’ characterization of the relief sought, see Great-

25 West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002), and should not do

26 so here. Because plaintiffs have an adequate remedy to seek the credit and challenge the

27 constitutionality of section 6428 via section 7422, section 704 precludes jurisdiction

28 12

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1 under the APA. See Bowen, 487 U.S. at 903; Clintwood, 553 U.S. at 8-12; City of

2 Oakland, 798 F.3d at 1165.

3

In addition, plaintiffs are mistaken that the IRS’s determination of an individual’s

4 eligibility for an advance refund and the amount of the advance refund “constitutes ‘final

5 agency action’” within the meaning of section 704. (See ECF 28 ¶ 35.) “[T]wo

6 conditions [must] generally [] be satisfied for agency action to be ‘final’ under the APA.

7 ‘First, the action must mark the consummation of the agency’s decisionmaking process--

8 it must not be of a merely tentative or interlocutory nature. And second, the action must

9 be one by which rights or obligations have been determined, or from which legal

10 consequences will flow.’” U.S. Army Corps of Engineers, 136 S. Ct. at 1813 (quoting

11 Bennett v. Spear, 520 U.S. 154, 177-178 (1997)).

12

As we have explained, the CARES Act created a tax credit that can be issued as an

13 advance refund, as a refundable tax credit, or as an advance refund and a refundable tax

14 credit. If the IRS issues an otherwise eligible individual an advance refund that is

15 smaller than the credit for which she eventually qualifies, the individual may claim the

16 additional amount as a refundable credit on her 2020 tax return.7 See 26 U.S.C. §

17 6428(e)(1). The issuance of an advance refund, then, is more accurately characterized as

18 an approximation (based on 2018 or 2019 tax information) of the CARES Act credit an

19 individual might receive. But the final amount of the credit cannot be determined until

20

21

7 There are a number of scenarios that would produce this outcome. Assume, for

22

instance, that an otherwise eligible individual gives birth to or adopts a child in 2020. The child would not appear on the individual’s 2019 and 2018 tax returns, and the

23

individual would therefore receive no advance refund relating to that child. If she claims the child as a qualifying child on her 2020 tax return, however, she would qualify for an

24

additional CARES Act credit. 26 U.S.C. § 6428(a)(2); see Economic Impact Payment Information Center, https://www.irs.gov/coronavirus/economic-impact-payment-

25

information-center Q&A 28 (last accessed June 12, 2020). Alternatively, the IRS may be unable to compute an advance refund for an individual who will qualify for a CARES

26

Act credit in 2020 because it does not have any of the information set forth in section 6428 for that individual. The individual, assuming she otherwise qualifies, could claim

27

and receive a CARES Act credit upon the filing of her 2020 tax return. Lastly, an individual might be eligible for a CARES Act credit based on her 2020 adjusted gross

28 income but no advance refund based on her 2019 or 2018 adjusted gross income.

13

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1 the tax year ends and the IRS receives and reviews the individual’s 2020 tax return. As

2 such, the IRS’s issuance--or non-issuance--of an advance refund is not the action from

3 which the right to a CARES Act credit flows and thus is not a “final agency action” in

4 any sense. See U.S. Army Corps of Engineers, 136 S. Ct. at 1813.

5

4. Plaintiffs cannot avoid the bar of sovereign immunity by naming

6

individual government officials

7

Finally, it is well-settled that plaintiffs’ naming of individual government officials

8 as defendants does not allow them to avoid the jurisdictional bar of sovereign immunity.

9 See, e.g., Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982); Larson v.

10 Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949).

11

B. This action should be dismissed for failure to state a claim

12

The amended complaint fails to state a claim upon which relief can be granted. As

13 such, this action should be dismissed. A district court properly dismisses an action for

14 failure to state a claim “if there is a lack of a cognizable legal theory or the absence of

15 sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar,

16 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotations omitted). In considering a

17 12(b)(6) motion, the district court must accept as true all material allegations of fact in

18 the complaint, as well as all reasonable inferences to be drawn from them. Pareto v.

19 FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

20

Acts of Congress, including the CARES Act, are presumed to be

21 constitutional. See INS v. Chadha, 462 U.S. 919, 944 (1983); Nat’l Fed’n of Indep. Bus.

22 v. Sebelius, 567 U.S. 519, 563 (2012) (“[E]very reasonable construction must be resorted

23 to, in order to save a statute from unconstitutionality.”) (quoting Hooper v. California,

24 155 U.S. 648, 657 (1895)). “Legislatures have especially broad latitude in creating

25 classifications and distinctions in tax statutes.” Regan v. Taxation With Representation

26 of Washington, 461 U.S. 540, 547 (1983) (rejecting an equal protection challenge to a

27 federal tax classification). Indeed, “[n]o scheme of taxation, whether the tax is imposed

28 14

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1 on property, income, or purchases of goods and services, has yet been devised which is

2 free of all discriminatory impact.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

3 1, 41 (1973). Thus, “[i]n such a complex arena in which no perfect alternatives exist,”

4 courts cannot “impose too rigorous a standard of scrutiny lest all [] fiscal schemes

5 become subjects of criticism under the Equal Protection Clause.” Id. Rather, “within the

6 limits of rationality, the legislature’s efforts to tackle problems should be entitled to

7 respect.” Id. at 42 (internal quotations omitted); see United States v. Md. Savings-Share

8 Ins. Corp., 400 U.S. 4, 6 (1970) (tax classifications are generally presumed to be

9 constitutional if a rational basis is demonstrated to or perceived by a court).

10

1. Section 6428(g) does not violate due process or equal protection

11

principles by implicating the right to marry

12

Plaintiffs assert that section 6428(g) violates their fundamental right to marry by

13 denying them an advance refund because they are married to individuals without SSNs.8

14 (ECF 28 ¶¶ 64-77.) They contend that the section is “not narrowly tailored to advance a

15 compelling government interest” or “related to any legitimate governmental interest” and

16 should therefore be deemed unconstitutional. (Id. ¶ 76.)

17

However, even if the factual allegations in the amended complaint are accepted as

18 true, section 6428(g) does not implicate plaintiffs’ fundamental right to marry. Plaintiffs

19 allege that they are each married and thus cannot contend that the CARES Act prevented

20 them from marrying an individual of their choosing. Nor can they deny that they could

21 each qualify for a CARES Act credit by electing to file a married filing separately tax

22 return for the 2020 tax year. Plaintiffs’ claim, then, is that section 6428(g)

23 impermissibly distinguishes between groups of married people, specifically, between

24 couples in which only one spouse has an SSN and couples in which both spouses have

25 SSNs. Such a distinction does not warrant any sort of heightened scrutiny: the Supreme

26

27

8 Plaintiffs describe the fundamental right to marry as arising under the First Amendment, the Due Process Clause of the Fifth Amendment, and the Equal Protection

28 and Privileges and Immunities Clauses of the Fourteenth Amendment. (ECF 28 ¶ 71.)

15

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1 Court has long distinguished between statutes that implicate the fundamental right to

2 marry and statutes that differentiate between groups of married people. Thus, the

3 Supreme Court has held that laws which “interfere directly and substantially with the

4 right to marry” are constitutionally infirm, but “reasonable regulations that do not

5 significantly interfere with decisions to enter into the marital relationship may be

6 legitimately imposed.” Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978). As such,

7 distinctions based on marital status are subject only to rational-basis review. Id.; see

8 also Califano v. Jobst, 434 U.S. 47, 53-54 (1977).

9

In Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000), for example, the

10 Ninth Circuit determined that a federal food stamps provision that distinguished between

11 noncitizen spouses of citizens whose marriages ended in divorce and noncitizen spouses

12 of citizens whose marriages ended in death did not interfere directly and substantially

13 with the right to marry and was therefore subject to rational-basis review. Likewise, in

14 In re Talmadge, 832 F.2d 1120, 1126 & n.3 (9th Cir. 1987) the Ninth Circuit upheld a

15 California statute that limited married debtors to one exemption in bankruptcy where, if

16 the debtors were not married, they would have been entitled to two. The court

17 determined that the distinction did not implicate a fundamental right, was subject only to

18 rational-basis review, and was permissible because the California legislature may have

19 had a reasonable explanation for making it. Id. at 1125-26.

20

Talmadge cited the Second Circuit’s decision in Druker v. Commissioner, 697

21 F.2d 46, 50 (2d Cir. 1982). There, the Second Circuit considered a challenge under the

22 Fourteenth Amendment’s Equal Protection clause to the so-called “marriage penalty”,

23 which causes certain married individuals to pay more taxes than they would if they were

24 unmarried. The court held that the mere fact that tax rates have differently affected

25 particular groups did not make tax rate structure set forth in the Internal Revenue Code

26 unconstitutional. Id. The court acknowledged that the “marriage penalty” has “some

27 adverse effect on marriage.” Id. Nevertheless, the “adverse effect of the ‘marriage

28 16

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1 penalty’ . . . is merely ‘indirect’; while it may to some extent weight the choice whether

2 to marry, it leaves the ultimate decision to the individual.” Id. (citation omitted).

3 Because the Second Circuit determined that the tax rate structure set forth in the Internal

4 Revenue Code places “no direct legal obstacle in the path of persons desiring to get

5 married,” and “the ‘marriage penalty’ is most certainly not ‘an attempt to interfere with

6 the individual’s freedom [to marry],’” it concluded that Congress was entitled to enact a

7 policy that penalizes some dual-income couples and that such a choice would even

8 survive strict scrutiny were it to apply. Id. (quoting Zablocki, 434 U.S. at 387 n.12 &

9 Jobst, 434 U.S. at 54).

10

Numerous tax benefits and obligations distinguish based on marital status. For

11 example, the Internal Revenue Code permits several filing statuses, each subject to

12 different tax rates and other provisions, based on marital status. See 26 U.S.C. §§ 1(a)

13 (married individuals filing joint returns and surviving spouses); 1(b) (heads of

14 household); 1(c) (unmarried individuals); 1(d) (married individuals filing separate

15 returns). Federal courts have consistently rejected constitutional claims where, for

16 federal tax purposes, married couples are treated differently than unmarried couples or

17 certain married couples are treated differently than other married couples. See Druker,

18 697 F.2d at 50; Mapes v. United States, 576 F.2d 896, 900 (Ct. Cl. 1978) (applying

19 rational-basis review and holding that differential tax effect between married couples

20 was constitutionally permissible); Schinasi v. Commissioner, 53 T.C. 382, 384 (1969)

21 (holding that 26 U.S.C. § 6013(a)(1) was reasonable and did not violate the Constitution

22 in precluding individuals married to individuals who were nonresident aliens for any part

23 of the taxable year from filing joint federal tax returns); see also Barter v. United States,

24 550 F.2d 1239, 1240 (7th Cir. 1977) (“We agree with the district court that the inequities

25 asserted to inhere in the ‘marriage penalty,’ whatever may be their persuasiveness as

26 arguments for legislative change, do not rise to the level of constitutional violations of

27 appellants’ rights.”) (footnote omitted).

28 17

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1

Assuming they otherwise qualify, there is no dispute that plaintiffs would each be

2 eligible to claim a CARES Act credit by filing a 2020 tax return using the married filing

3 separately filing status. Thus, plaintiffs’ constitutional claim is that in order to receive

4 the credit, they must each select a filing status that they would not have otherwise

5 chosen. But all married individuals must evaluate the benefits and burdens of whether to

6 file a joint or a separate tax return. See 26 U.S.C. §§ 1(a) and (d).

7

As described above, section 6428(g) does not implicate plaintiffs’ fundamental

8 right to marry; it merely distinguishes, like other provisions in the Internal Revenue

9 Code, between categories of married couples. As such, it is subject to rational-basis

10 review. See Aleman, 217 F.3d at 1201; In re Talmadge, 832 F.2d 1120, 1126 & n.3.

11

2. Section 6428(g) does not make distinctions based on alienage, and

12

even assuming arguendo it does, federal distinctions based on

13

alienage are subject to rational-basis review

14

Plaintiffs argue that section 6428(g) is constitutionally infirm because it

15 discriminates on the basis of their spouses’ alienage. (ECF 28 ¶¶ 78-85.) As a threshold

16 matter, section 6428(g) does not distinguish based on alienage; rather, it provides that

17 married couples who elect to file a joint income tax return cannot claim a CARES Act

18 credit unless both spouses have SSNs valid for employment.9 But SSNs valid for

19 employment are not issued exclusively to U.S. citizens. Instead, they are assigned to

20 U.S. citizens, lawful permanent residents, and other noncitizens with authorization to

21 work in the United States. See 42 U.S.C. § 405(c)(2)(B)(i)(I) and (III); 20 C.F.R.

22 § 422.104 (“Who can be assigned a social security number”). As such, lawful permanent

23

24

25

9 The CARES Act’s SSN restrictions are not unique in the Internal Revenue

Code. The Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613 (Feb. 26 13, 2008), and 1996 amendments to the EIC, 26 U.S.C. § 32, use substantially similar

27

language to bar tax credits to those who fail to provide SSNs on their income tax return. And since 2017, the CTC, like the EIC and the CARES Act credit, has distinguished

28

between children with and without SSNs. From 2018 through 2025, the Code allows a individual to claim a larger CTC for a child with an SSN. See 26 U.S.C. § 24(h)(7).

18

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1 residents and other noncitizens with SSNs valid for employment can qualify for a

2 CARES Act credit or receive an advance refund.

3

In contrast, ITINs are identifying numbers issued by the IRS to nonresident and

4 resident aliens (as well as their alien spouses and alien dependents) who have a reporting

5 requirement under the Internal Revenue Code but do not qualify for an SSN. 26 C.F.R.

6 § 301.6109-1(d)(3); see Hansen v. Dep’t of Treasury, 528 F.3d 597, 599 (9th Cir. 2007).

7 ITINs are held by noncitizens, some of whom live outside the United States but are

8 required to have an identification number for tax purposes, such as individuals with

9 U.S.-source investment income. Many other ITIN-holders live and work in the United

10 States even though they are not so authorized. See Congressional Research Service,

11 Report R43840, “Federal Income Taxes and Noncitizens: Frequently Asked Questions”

12 at 3-5 (updated December 31, 2014). Holding an SSN valid for employment, then,

13 tracks work authorization in the United States more closely than it does United States

14 citizenship. See Congressional Research Service, Report R46339, “Unauthorized

15 Immigrants’ Eligibility for COVID-19 Relief Benefits: In Brief” (updated May 7, 2020)

16 at 5-6 (SSNs are “typically issued to U.S. citizens, lawful permanent residents, and

17 noncitizens with work authorization”). And the Ninth Circuit has previously upheld a

18 federal program that distinguished between SSN and non-SSN holders in allocating

19 federal benefits in the face of an equal protection challenge. See Alcaraz v. Block, 746

20 F.2d 593, 605 (9th Cir. 1984).

21

Plaintiffs’ amended complaint does not challenge section 6428(d)(1)’s exclusion

22 of nonresident aliens10 from receiving a CARES Act credit. And, in any event, to the

23

24

10 “[F]or federal tax purposes, a noncitizen is classified as a resident or

25

nonresident alien, regardless of whether he or she is in the United States as an immigrant or nonimmigrant, or is in the United States unlawfully. This classification is for federal

26

tax purposes only and does not affect the individual’s immigration status.” Congressional Research Service, Report R43840, “Federal Income Taxes and

27

Noncitizens: Frequently Asked Questions” at 1-2 (updated December 31, 2014); see IRS Publication 519, available at https://www.irs.gov/pub/irs-pdf/p519.pdf (last accessed

28 June 11, 2020.).

19

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 28 of 30 Page ID #:366

1 extent that the SSN requirement in section 6428(g) distinguishes between resident aliens

2 and nonresident aliens, distinctions between individuals in those categories in the Tax

3 Code have been consistently upheld. See Hofstetter v. Commissioner, 98 T.C. 695, 702

4 (1992); Schinasi, 53 T.C. at 384; see also Barr v. Commissioner, 51 T.C. 693, 695

5 (1969).

6

As we have explained, the CARES Act’s SSN requirement is not a distinction

7 based on alienage, since lawful permanent residents and other noncitizens with work

8 authorization can obtain an SSN and qualify for a CARES Act credit. Even assuming

9 arguendo the requirement is a distinction based on alienage, the Supreme Court

10 recognizes that the federal government has “broad, undoubted power over the subject of

11 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394

12 (2012) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)). When federal law classifies

13 individuals on the basis of alienage, rational-basis review applies.11 See Mathews v.

14 Diaz, 426 U.S. 67, 81-85 (1976). Thus, in considering the food stamps provision in

15 Aleman, 217 F.3d at 1201, the Ninth Circuit held that Congress had differentiated

16 between groups of aliens and that the provision was subject to rational-basis review.

17

In sum, section 6428(g) is not a classification based on alienage. Even assuming

18 arguendo that it is, it would be subject to rational-basis review. See Aleman, 217 F.3d at

19 1201.

20

3. Plaintiffs have not pleaded a cognizable legal theory

21

As we have explained, section 6428(g) is subject to rational-basis review.

22 Plaintiffs cannot prevail under that standard. “[R]ational-basis review in equal

23 protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of

24 legislative choices.’” Aleman, 217 F.3d at 1200 (quoting Heller v. Doe, 509 U.S. 312,

25 319 (1993)) (internal quotations omitted). When reviewing a provision under rational-

26

27

11 Plaintiffs cite Graham v. Richardson, 403 U.S. 365, 372 (1971) for the proposition that that the federal tax provision at issue is subject to strict scrutiny. That

28 case, however, dealt with a state classification based on alienage. See id. at 376-377.

20

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 29 of 30 Page ID #:367

1 basis review “a statutory classification . . . must be upheld against equal protection

2 challenge if there is any reasonably conceivable state of facts that could provide a

3 rational basis for the classification.” Id. at 1201 (quoting FCC v. Beach

4 Communications, 508 U.S. 307, 313 (1993)). The government “has no obligation to

5 produce evidence to sustain the rationality of a statutory classification”; rather, “[t]he

6 burden is on the one attacking the legislative arrangement to negative every conceivable

7 basis which might support it.” Heller, 509 U.S. at 320 (internal quotations omitted); see

8 also Fournier v. Sebelius, 718 F.3d 1110, 1123 (9th Cir. 2013).

9

Plaintiffs cannot “negative every conceivable basis which might support” section

10 6428(g) and thereby overcome its presumption of constitutionality. See Aleman, 217

11 F.3d at 1201 (quoting Heller, 509 U.S. at 320). Indeed, Congress could have reasonably

12 used the prohibition on joint filing in section 6428(g) as a means to reconcile section

13 6428(a)(1)’s provision of $2,400 credits to eligible joint filers with section 6428(d)(1)’s

14 exclusion of nonresident aliens.12 Whether Congress could have selected a different

15 method to achieve the same result is not at issue. See Nat’l Fed’n of Indep. Bus., 567

16 U.S. at 563; Brushaber v. Union P.R. Co., 240 U.S. 1, 26 (1916). As such, plaintiffs’

17 action should be dismissed.

18

19

20

21

22

23

24

25

26

27

28

12 Plaintiffs do not challenge either of these provisions.

21

Case 8:20-cv-00858-SVW-JEM Document 30 Filed 06/15/20 Page 30 of 30 Page ID #:368

1 V. CONCLUSION

2

This action should be dismissed because this Court lacks jurisdiction over

3 plaintiffs’ claims and because the amended complaint fails to state a claim upon which

4 relief can be granted.

5 Dated: June 15, 2020

Respectfully submitted,

6

NICOLA T. HANNA

United States Attorney

7

THOMAS D. COKER

Assistant United States Attorney

8

Chief, Tax Division

9

/s/ John D. Ellis

MELISSA BRIGGS

10

JOHN D. ELLIS

Assistant United States Attorneys

11

Attorneys for the United States of America

12

13

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16

17

18

19

20

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23

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Economic Impact Payment Information Center

Mailed Check Payments May Be Sent As Debit Cards
 If the Get My Payment application says you’re receiving a check, your Payment may come as a debit card. Debit card Payments come in a plain envelope from “Money Network Cardholder Services." For more information, see Prepaid Debit Cards.

For additional questions regarding the Get My Payment application check out our Get My Payment FAQs.
Millions of Americans have already received their Economic Impact Payments (Payments) authorized by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The Internal Revenue Service (IRS) continues to calculate and automatically send the Payments to most eligible individuals, however some may have to provide additional information to the IRS to get their Payments. Below are answers to frequently asked questions related to these Payments. These questions and answers will be updated periodically. Please DO NOT call the IRS.
EIP Eligibility and General Information Requesting My Economic Impact Payment Calculating My Economic Impact Payment Receiving My Payment Prepaid Debit Cards Payment Issued but Lost, Stolen, Destroyed or Not Received Non-Filer Tool Social Security, Railroad Retirement and Department of Veteran Affairs benefit recipients Returning the Economic Impact Payment
EIP Eligibility and General Information
 Q1. Who is eligible? (updated June 5, 2020)
 Q2. Who is not eligible? (updated June 5, 2020)

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

ATTACHMENT A 1/8

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 Q3. How much is it worth? (updated May 29, 2020)  Q4. Do I need to take action?  Q5. Will I receive notification from the IRS about my Payment?  Q6. How do I avoid scams related to Economic Impact Payments or COVID-19?  Q7. Should I use Get My Payment or Non-Filers: Enter Payment Info Here?  Q8. As a U.S. citizen living abroad, am I entitled to a Payment?  Q9. If I live in Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, or the Commonwealth
of the Northern Mariana Islands, will I get a Payment if I’m eligible?
 Q10. I am a citizen or resident of one of the Freely Associated States (Federated States of
Micronesia, the Republic of the Marshall Islands, and the Republic of Palau). Can I be eligible to receive a Payment? (added June 8, 2020)
 Q11. What does it mean if I received a Payment from both the IRS and a U.S. territory tax agency?
(added June 8, 2020)
 Q12. Does someone who has died qualify for the Payment? (updated May 26, 2020)  Q13. Does someone who is a resident alien qualify for the Payment? (added May 6, 2020)  Q14. Does someone who is incarcerated qualify for the Payment? (added May 6, 2020)

Requesting My Economic Impact Payment  Q15. I recently filed a tax return. What do I need to do to get a Payment?

 Q16. I haven’t filed a tax return for 2018 or 2019 and don’t need to file tax returns for those years.
I receive Social Security, SSI, Railroad Retirement, or Department of Veterans Affairs (VA) benefits.

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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6/12/202C0ase 8:20-cv-00858-SVW-JEEMconomDicoIcmupamctePnaytm3e0nt-I1nformFaitlieondC0en6te/1r |5In/t2er0nal RPeavegneue3Seorvfic8e Page ID #:371 What do I need to do to get a Payment? (updated April 24, 2020)
 Q17. I haven’t filed a federal tax return for 2018 or 2019 because I’m not required to file. I don’t
receive Social Security retirement or any other federal benefits. What do I need to do to get a Payment? (Updated June 10, 2020)
 Q18. I did not file a tax return for 2018 or 2019. How do I know if I am required to file a tax return?
 Q19. I haven’t filed my 2019 tax return but filed my 2018 return and already received an
Economic Impact Payment. Will filing a 2019 return affect my Economic Impact Payment? (added June 10, 2020)
 Q20. Who should NOT use Non-Filers: Enter Payment Info Here? (updated June 10, 2020)
 Q21. I need to file a tax return but am concerned about visiting a tax professional or local
community organization in person right now to get help with my tax return. How long is the Payment available?
A21. Payments will be made throughout the rest of 2020. If you don’t receive a Payment this year, you can also claim it by filing a tax return for 2020 next year.
 Q22. Will the IRS contact me about my Payment? (updated May 8, 2020)
Calculating My Economic Impact Payment  Q23. What is the amount of the Payment I will receive? Who is a qualifying child? (updated May 8,
2020)
 Q24. How do I calculate my Economic Impact Payment? (added April 27, 2020)
 Q25. Will my Payment be reduced if my income is too little or too much?
 Q26. I filed a joint return with my spouse. Will we receive a Payment if I have a valid SSN and my
spouse has an IRS Individual Taxpayer Identification Number (ITIN)?

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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A26. No, when spouses file jointly, both spouses must have valid SSNs to receive a Payment with one exception. If either spouse is a member of the U.S. Armed Forces at any time during the taxable year, only one spouse needs to have a valid SSN. If spouses file separately, the spouse who has an SSN may qualify for a Payment; the other spouse without a valid SSN will not qualify.
 Q27. What is meant by a valid SSN required for a Payment?
A27. A valid SSN for a Payment is one that is valid for employment and is issued by the SSA before the due date of your 2019 tax return (including the filing deadline postponement to July 15 and an extension to October 15 if you request it) or your 2018 tax return (including extensions) if you haven’t filed your 2019 tax return. If the individual was a U.S. citizen when they received the SSN, then it is valid for employment. If “Not Valid for Employment” is printed on the individual’s Social Security card and the individual’s immigration status has changed so that they are now a U.S. citizen or permanent resident, ask the SSA for a new Social Security card. However, if “Valid for Work Only With DHS Authorization” is printed on the individual's Social Security card, the individual has the required SSN only as long as the Department of Homeland Security authorization is valid.
 Q28. Is a child born, adopted, or placed into foster care in 2020 a qualifying child for the
Payment?
A28. The Payment in 2020 will not include an additional amount for these children because the Payment in 2020 is based only on information from your 2019 or 2018 tax return. You may claim the child next year for an additional credit on your 2020 tax return.
 Q29. I received an additional $500 Payment in 2020 for my qualifying child. However, he just
turned 17. Will I have to pay back the $500 next year when I file my 2020 tax return?
 Q30. I claimed my child as a dependent on my 2019 tax return. She is graduating from school in
2020. Will she receive her own Payment?
 Q31. I claimed my mom as a dependent on my 2019 tax return. Will I receive an additional
Payment for her or will she receive her own Payment?
 Q32. I think the amount of my Economic Impact Payment is incorrect. What can I do? (updated
June 10, 2020)

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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A32. Payment amounts vary based on income, filing status and family size. If you filed a 2019 tax return, the IRS used information from it about you, your spouse, your income, filing status and qualifying children to calculate the amount and issue your Payment. If you haven’t filed your 2019 return or it has not been processed yet, the IRS used the information from your 2018 return to calculate the amount and issue your Payment. The IRS is not able to correct or issue additional payments at this time and will provide further details on IRS.gov on the action people may need to take in the future. If you did not receive the full amount to which you believe you are entitled, you will be able to claim the additional amount when you file your 2020 tax return. This is particularly important for individuals who may be entitled to the additional $500 per qualifying child payments. We encourage everyone to review our “How do I calculate my EIP” question and answer (See question 23). Keep the Notice 1444, Your Economic Impact Payment, you will receive regarding your Economic Stimulus Payment with your records. This notice will be mailed to each recipient’s last known address within a few weeks after the Payment is made. When you file your 2020 tax return next year, you can refer to Notice 1444 and claim additional credits on your 2020 tax return if you are eligible for them. The IRS will provide further details on IRS.gov on the action they may need to take.
 Q33. What if a child's parents who are not married to each other both got the $500 for a child -
will one of them have to pay that back? (updated May 15, 2020)
Receiving My Payment
 Q34. Is the Payment includible in my gross income? (updated April 24, 2020)
 Q35. If I owe tax, or have a payment agreement with the IRS, or owe other federal or state debts
or past-due child support, will my Payment be reduced or offset? (updated May 8, 2020)
 Q36. How will the IRS know where to send my Payment? (updated May 15, 2020)
 Q37. What if the bank account number I used on my recent tax return is closed or no longer
active? Can I switch and be mailed a Payment? (updated May 20, 2020)
 Q38. I already filed my 2019 tax return and owed tax. I scheduled a payment (electronic funds
withdrawal, Direct Pay, or Electronic Federal Tax Payment System (EFTPS)) from my bank account. Will the IRS send my Payment to the account I used? (updated May, 14, 2020)
 Q39. I already filed my 2019 tax return, but I didn’t provide bank information. Can I use the Non-
Filers: Enter Payment Info Here tool to provide my banking information? (updated May, 14, 2020)

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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 Q40. How do I find the bank account information the IRS needs?
 Q41. What if I don’t have a bank account? (updated May 20, 2020)
 Q42. My address is different from the last tax return I filed. How can I change my address?
(updated June 9, 2020)
 Q43. Where did you get the bank information for me, and what if I need to change it? (updated
May 14, 2020)
 Q44. I requested a direct deposit of my Payment. Why are you mailing it to me as a check?
 Q45. I heard that past-due child support can be taken from the EIP, but can other debt collectors
get access to this money? (updated May 15, 2020)
 Q46. Will I need to provide information or reconcile the Economic Impact Payment on my 2020
taxes when I file next year? (added May 14, 2020)

Prepaid Debit Cards  Q47. Can I have my economic impact payment sent to my prepaid debit card? (added May 14,
2020)
 Q48. Will IRS be sending prepaid debit cards? (added May 20, 2020)
 Q49. Can I transfer money from my debit card to my bank account? (added June 5, 2020)
 Q50. Can I specifically ask the IRS to send the Economic Impact Payment to me as a debit card?
(added May 20, 2020)
 Q51. What do I do if my prepaid debit card was lost or destroyed? (added June 4, 2020)
 Q52. I received the prepaid debit EIP Card as my Payment, but my name is incorrect. What should
I do? (added June 9, 2020)

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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Payment Issued but Lost, Stolen, Destroyed or Not Received
 Q53. I received my Payment by check but it was lost, stolen or destroyed. How do I get a new
one? (added June 9, 2020)
 Q54. I received Notice 1444 in the mail saying my Payment was issued, but I have not received my
Payment. What should I do? (added June 9, 2020)
Non-Filer Tool
 Q55. Do I need to use the Non-Filers: Enter Payment Info Here tool if I am not required to file a
federal income tax return for 2019 or 2018 and I do not receive Social Security retirement, disability (SSDI), Supplemental Security Income (SSI) or survivor benefits, Veteran’s benefits or Railroad Retirement benefits? (added May 14, 2020)
 Q56. Do I need to use the Non-Filers: Enter Payment Info Here tool if I am not required to file a
federal income tax return for 2019 or 2018 and I do receive federal benefits for Social Security retirement, disability (SSDI), Supplemental Security Income (SSI) or survivor benefits, Veteran’s benefits, or Railroad Retirement benefits? (added May 14, 2020)
 Q57. Do I need to use the Non-Filers: Enter Payment Info Here tool if I filed a return for 2019 or
2018? (updated May 14, 2020)
Social Security, Railroad Retirement and Department of Veteran Affairs benefit recipients
 Q58. Do Social Security, Railroad Retirement and Department of Veteran Affairs benefit recipients
need to take any action? (added May 15, 2020)
 Q59. When will eligible Social Security, Railroad Retirement and Department of Veteran Affairs
benefit recipients who are not required to file a tax return receive their Economic Impact Payment? (added May 15, 2020)
 Q60. How much will Social Security, Railroad Retirement and Department of Veteran Affairs
benefit recipients receive? (added May 15, 2020)

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

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 Q61. Do I need to do anything if I am the spouse of an SSA, SSI, RRB, or VA recipient? (added May
15, 2020)
 Q62. How will the IRS send my Economic Impact Payment if I have a representative payee or I am
a representative payee? (added June 10, 2020)
Returning the Economic Impact Payment  Q63. What should I do to return an Economic Impact Payment (EIP) that was received as a direct
deposit or a paper check? (updated June 9, 2020)
 Q64. How do I return an Economic Impact Payment (EIP) that was received as an EIP Card (debit
card) if I don’t want the payment re-issued? (added June 9, 2020)
Page Last Reviewed or Updated: 11-Jun-2020

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

8/8

Case 8:20-cv-00858-SVW-JEM Document 30-2 Filed 06/15/20 Page 1 of 2 Page ID #:377

1

NICOLA T. HANNA United States Attorney

2

THOMAS D. COKER Assistant United States Attorney

3

Chief, Tax Division MELISSA BRIGGS (Cal. Bar No. 320697)

4

JOHN D. ELLIS (Cal. Bar No. 322922) Assistant United States Attorneys

5

Federal Building, Suite 7211 300 North Los Angeles Street

6

Los Angeles, California 90012 Telephone: (213) 894-6165

7

(213) 894-2740 Facsimile: (213) 894-0115

8

E-mail:

melissa.briggs2@usdoj.gov john.ellis3@usdoj.gov

9 Attorneys for the United States of America

10

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14 JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

16

v.

[Proposed] Order Granting Motion to Dismiss

17 DONALD J. TRUMP, et al.,

18

Defendants.

19 The Court, having read and considered the United States of America’s Motion to
20 Dismiss (motion, ECF No. 30) and any responses thereto, holds that the United States of
21 America is the only proper party defendant with respect to the claims asserted by
22 plaintiffs. It accordingly DISMISSES Donald J. Trump, Mitch McConnell, Steven
23 Mnuchin, Charles Rettig, the U.S. Department of the Treasury, and the U.S. Internal
24 Revenue Service as defendants.
25 The Court further holds that it lacks subject-matter jurisdiction over the claims
26 asserted by plaintiffs pursuant to Federal Rule of Civil Procedure 12(b)(1) and that
27 plaintiffs have failed to state a claim upon which relief can be granted pursuant to
28

1

Case 8:20-cv-00858-SVW-JEM Document 30-2 Filed 06/15/20 Page 2 of 2 Page ID #:378

1 Federal Rule of Civil Procedure 12(b)(6). The Court accordingly GRANTS the motion

2 for the reasons stated therein and DISMISSES this action with prejudice.

3

IT IS SO ORDERED.

4

5 Dated: ________________ 6

HON. STEPHEN V. WILSON United States District Judge

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 Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 1 of 32 Page ID #:385

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5 Attorneys for Plaintiffs,

6 JANE DOE and JOHN DOE, individually and

7 on behalf of others similarly situated

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE and JOHN DOE, individually
12 and on behalf of others similarly situated,

13

Plaintiffs,

14

v.

15 DONALD J. TRUMP, in his individual

16

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

17

his individual and official capacity as a Senator and Sponsor of S. 3548 CARES

18

Act; and STEVEN MNUCHIN,in his individual and official capacity as the

19

Acting Secretary of the U.S. Department of Treasury; CHARLES RETTIG, in his

20 individual and official capacity as U.S.

Commissioner of Internal Revenue; U.S.

21 DEPARTMENT OF THE TREASURY;

the U.S. INTERNAL REVENUE

22 SERVICE; and the UNITED STATES OF

23 AMERICA,

Defendants.

24

CASE NO: 8:20-cv-00858-SVW-JEM Assigned to the Hon. Stephen V. Wilson
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Hearing Date: Time: Courtroom: Location:

July 13, 2020 1:30 p.m. 10A 350 W. 1st Street Los Angeles, CA 90012

Action Filed: May 6, 2020

25

26

27

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- i PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 2 of 32 Page ID #:386

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS...............................................................................................ii TABLE OF AUTHORITIES ........................................................................................iii
3 PROCEDURAL HISTORY ..........................................................................................1

4 INTRODUCTION .........................................................................................................1

5 ARGUMENT.................................................................................................................5

6

I.

Sovereign Immunity is Waived by the APA Regardless of Whether a Claim “Arises Under” the APA...................................................................................5

7 II. Plaintiffs’ Claims are not Barred by the Anti-Injunction Act or the

8

Declaratory Injunction Act ...............................................................................8

9

A. Refundable Tax Credits are Not Taxes, and Do Not Implicate the AIA or the

DJA. ................................................................................................................ 8

10

B. CARES Act Amendments to the Internal Revenue Code Expressly Providing

11

that the CARES Act Payments are Subject to Deficiency Procedures

12

Remove Any Doubt that the Credit is Not a Tax..........................................12

III. In the Alternative, Plaintiffs’ Case Does “Arise Under” the APA .................13

13

A. The Agency Action at Issue is Final.............................................................13

14

B. No Adequate Alternatives for Challenging the Agency Action Exist...........14

15 IV. Plaintiffs Have Standing and their Claims are Ripe for

16

Judicial Review Now ......................................................................................15

V. The FCA States a Claim for Relief.................................................................18

17

A. Section 6428(g) violates the First Amendment of the U.S. Constitution. ....20

18 B. Section 6428(g) violates the Fifth Amendment of the U.S. Constitution. ....21

19

C. Section 6428(g) violates the Fourteenth Amendment of the U.S.

Constitution. ................................................................................................. 23

20 CONCLUSION............................................................................................................25

21

22

23

24

25

26

27

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- ii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 3 of 32 Page ID #:387

1

TABLE OF AUTHORITIES

2 Cases

3

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) .........................................24 Alcaraz v. Block, 746 F.2d. 593 (9th Cir. 1984)..........................................................24

4 Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J.,

5

concurring) ...............................................................................................................22 Blagojevich v. Gates, 519 F.3d 370 (7th Cir. 2008)..................................................6, 7

6 Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) ........................................................... 9

7

Boddie v. Connecticut, 401 U.S. 371 (1971) ...................................................20, 22, 24 Bolling v. Sharpe, 347 U.S. 497 (1954).................................................................22, 24

8 Bowen v. Massachusetts, 487 U.S. 879 (1988) ............................................................. 7

9

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ..................................24 Carey v. Piphus, 435 U.S. 247 (1978).........................................................................22

10 Church of Scientology of Celebrity Ctr., Los Angeles v. Egger,

11

539 F. Supp. 491 (D.D.C. 1982) ..............................................................................11 CIC Services, LLC v. Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020)11

12 Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974) ...............................................21

13 Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) ................................................ 9 Delano Farms Co. v. California Table Grape Com’n,
14 655 F.3d 1337 (Fed. Cir. 2011)..................................................................................7

15 Department of Homeland Security et al. v. Regents of the University of California Wolf v. Vidal, No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020) ....................5, 6
16 Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury,

17 799 F.3d 1065 (D.C. Cir. 2015) ...........................................................................9, 10 Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. CV13-5693 PSG (GJSx), 2016 U.S.
18 Dist. LEXIS 185233 (C.D. Cal. Sep. 8, 2016) .........................................................23

19 Freedom from Religion Foundation v. Shulman, 961 F. Supp.2d 947 (W.D. Wis. 2013)..............................................................passim
20 Graham v. Richardson, 403 U.S. 365 (1971)..............................................................24

21 Griffin v. Illinois, 351 U.S. 12 (1956)..........................................................................24 Griswold v. Connecticut, 381 U.S. 479 (1965) .....................................................20, 21
22 Heckler v. Matthews, 465 U.S. 728 (1984) .................................................................17

23 In re First Alliance, 2003 U.S. Dist. LEXIS 25925, 2003 WL 21530096..................23 In re Statham, 483 F.2d 436 (9th Cir. 1973) ...............................................................21
24 In re Talmadge, 832 F.2d 1120 (9th Cir. 1987) ..........................................................21

25 Latta v. Otter, 19 F. Supp. 3d 1054 (9th Cir. 2014) ....................................................21 M. L. B. v. S. L. J., 519 U.S. 102 (1996)......................................................................21
26 Meyer v. Nebraska, 262 U.S. 390 (1923) ....................................................................21

27 Michigan v. United States Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011)7, 8

28

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 4 of 32 Page ID #:388

1 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) ......... 9

2

Nelson v. Regan, 731 F.2d 105 (2d Cir. 1984) ............................................................10 Quisenberry v. Compass Vision, Inc., 618 F. Supp.2d 1223 (S.D. Cal. 2007) ...........23

3 Roberts v. United States Jaycees, 468 U.S. 609 (1984) ..............................................20

4

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)..................................20 Schlesinger v. Ballard, 419 U.S. 498 (1975)...............................................................22

5 Schneider v. Rusk, 377 U.S. 163 (1964) ......................................................................22

6

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ............................21, 24 Sorenson v. Sec’y of Treasury of U.S., 475 U.S. 851 (1986) ................................10, 11

7 Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985) .................10, 11

8

Sugarman v. Dougall, 413 U.S. 634 (1973) ..........................................................21, 22 Takahashi v. Fish & Game Com., 334 U.S. 410 (1948)..............................................24

9 The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) ...... 7

10

Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994)....................................18 Trudeau v. Federal Trade Com’n, 456 F.3d 178 (D.C. Cir. 2006) ............................... 7

11 U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016) .13, 14, 15

12 United States v. Kras, 409 U.S. 434 (1973) ................................................................21 United States v. Windsor, 570 U.S. 744 (2013).....................................................22, 23
13 Statutes

14 5 U.S.C. § 702.......................................................................................................passim

15

5 U.S.C. § 704..............................................................................................................13 18 U.S.C. § 287............................................................................................................15

16 28 U.S.C. § 1331............................................................................................................5

17

28 U.S.C. § 1367............................................................................................................5 28 U.S.C. § 2201............................................................................................................9

18 I.R.C. § 6201................................................................................................................12

19

I.R.C. § 6211..........................................................................................................12, 13 I.R.C. § 6212..........................................................................................................12, 15

20 I.R.C. § 6428.........................................................................................................passim

21

I.R.C. § 6662................................................................................................................15 I.R.C. § 6671................................................................................................................12

22 I.R.C. § 7201................................................................................................................15

23

I.R.C. § 7421..................................................................................................................9 I.R.C. § 7422..........................................................................................................12, 15

24 Other Authorities

25 BLACK'S LAW DICTIONARY (10th ed. 2014) .......................................................23

26

CARES Act, § 2201(e) ..................................................................................................3 S. 3548, 116th Cong. (2020)..........................................................................................3

27

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- iv PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 5 of 32 Page ID #:389

1 Constitutional Provisions

2

U.S. Const. amend. I ....................................................................................................20 U.S. Const. amend. V ............................................................................................21, 22

3 U.S. Const. amend. XIV ........................................................................................23, 24

4

5

6

7

8

9

10

11

12

13

14

15

16

17

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19

20

21

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- v PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 6 of 32 Page ID #:390

1

PROCEDURAL HISTORY

2

On May 6, 2020, Plaintiff Jane Doe, individually and on behalf of others

3 similarly situated, filed a class action complaint challenging the Coronavirus Aid,

4 Economic Relief, and Security Act (the “CARES Act” or “Act”) and alleging

5 violations of her constitutional rights. See Dkt. 1. Plaintiff subsequently filed her

6 Emergency Motion seeking emergency declaratory and injunctive relief. (“Em.

7 Mot.”). See Dkts. 9 & 11. Defendants objected to the granting of Plaintiff’s

8 Emergency Motion (see Dkts. 22, 23), and Plaintiff filed her Reply in Support of her

9 Motion on June 2, 2020 (“TRO Reply”). See Dkt. 26. The next day, Plaintiffs Jane

10 Doe and John Doe filed their First Amended Complaint (“FAC”). See Dkt. 28. On

11 June 15, 2020 Defendants filed a Motion to Dismiss (“MTD”) based on lack of

12 jurisdiction, a motion which pays lip service to the allegations included in the FAC

13 but completely ignores the basis for jurisdiction addressed in the TRO Reply. See

14 Dkt. 30. Plaintiffs incorporate by reference their Em. Mot. and TRO Reply herein.

15

INTRODUCTION

16

The outbreak of COVID-19, also known as Coronavirus, wreaked

17 unprecedented havoc on the United States and its economy (the “Pandemic”).

18 Michael R. Sisak et al., ‘We Need Help’: Economic, health crises grow as cases top

19 1M, ASSOCIATED PRESS (April 2, 2020), https://apnews.com/

20 7c8c65a74daaf0ada3582d3b3161b35f (last visited June 20, 2020). Leading up to the

21 CARES Act passage, extraordinary numbers of Americans lost their jobs. Id. Schools

22 across the country were cancelled. Cory Turner, Half of U.S. Public School Students

23 are Home for the School Year, NPR (April 16, 2020), https://www.npr.org/sections/

24 coronavirus-live-updates/2020/04/16/835941050/nearly-half-of-u-s-public-school-

25 students-are-home-for-the-school-year (last visited June 22, 2020). Courts closed first

26 to persons who travelled to certain countries outside the United States, and then

27

28

- 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 7 of 32 Page ID #:391

1 closed entirely except for hearings on criminal duty matters. See C.D. Cal. General

2 Order No. 20-03, March 13, 2020; Order of the Chief Judge No. 20-042, March 19,

3 2020; and General Order No. 20-05, April 13, 2020. The Pandemic inflicted unheard

4 of economic ramifications, and Congress responded in an unprecedented way,

5 enacting the largest economic stimulus package in United States history. Jordan

6 Fabian and Justin Sink, Trump Signs $2 Trillion Virus Bill, Largest Ever U.S.

7 Stimulus, BLOOMBERG (March 27, 2020), https://www.bloomberg.com/news/articles/

8 2020-03-27/trump-signs-2-trillion-virus-bill-largest-ever-u-s-stimulus (last visited

9 June 19, 2020). On March 25 and 26, 2020, Congress passed the CARES Act.

10 CARES Act, Pub. L. No. 116-136, March 27, 2020, 134 Stat 281. The next day,

11 President Donald J. Trump signed the CARES Act into law. Id.

12

Congress provided for immediate distribution of funds to combat multiple

13 issues – not just record unemployment, but also record job elimination. Id. The

14 Pandemic caused sharp declines in retail sales and in individuals’ abilities to pay

15 housing and food expenses. Heather Long and Renae Merle, Many Americans’

16 Biggest Worry Right Now is April 1 Rent and Mortgage Payments, WASHINGTON

17 POST (March 22, 2020) https://www.washingtonpost.com/business/2020/03/22/april-

18 rent-due-coronavirus/ (last visited June 19, 2020). The CARES Act pushed

19 emergency funds into the hands of desperate Americans, so that they could pay

20 necessary living expenses – right away.1 The record-breaking relief measure helped

21 to prevent unprecedented evictions, foreclosures, health care emergencies, and 22 starvation threatening hundreds of millions of Americans. Long, supra. Microsoft co23 founder Bill Gates said: “It is impossible to overstate the pain people are feeling 24

25 1 According to the Internal Revenue Service, necessary living expenses include food

26 & clothing, housing and utilities, healthcare, and transportation. Collection Financial Standards, IRS.GOV (March 30, 2020) https://www.irs.gov/businesses/small-
27 businesses-self-employed/collection-financial-standards (last visited June 19, 2020).

28

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 8 of 32 Page ID #:392

1 now and will feel for years to come.” Sandi Doughton, ‘It is Impossible to Overstate

2 the Pain’: Fight Against Coronavirus Will Define Our Era, Bill Gates Says, THE

3 SEATTLE TIMES (April 23, 2020), https://www.seattletimes.com/nation-world/it-is-

4 impossible-to-overstate-the-pain-fight-against-coronavirus-will-define-our-era-bill-

5 gates-says/ (last visited June 19, 2020) (emphasis added).

6

The CARES Act sought to ease this pain for individuals and jump-start the

7 economy by creating a refundable tax credit for any eligible individual who holds a

8 social security number (“SSN”) by adding 26 U.S.C. § 6428 to the Internal Revenue

9 Code. S. 3548, 116th Cong. (2020) (“Section 6428”). Section 6248 provides for an

10 Economic Impact Payment to be made in the form of an Advance Payment to all

11 individuals who are eligible to receive the credit on or before December 31, 2020 (the

12 “Advance Payment”). Congress mandated the Advance Payments to be made “as

13 rapidly as possible,” and directed the Secretary of the Treasury to conduct a public

14 awareness campaign regarding “information about availability of the credit and

15 rebate.” CARES Act, § 2201(e). While Section 6428(e) requires a “truing up” of the

16 Advance Payment with an individual’s income tax return based on the actual amount

17 of the 2020 credit permitted (computed based on 2020 filing status and liability), if an

18 eligible individual receives an overpayment it is not required to be repaid. I.R.C.

19 § 6428(e). In other words, the Advance Payment is a benefit conferred to United

20 States citizens who meet certain income eligibility requirements, and they may retain

21 it even if it later turns out they were not eligible. Id.

22

Recognizing the dire circumstances faced by many families and the threat to

23 our national economy, Congress directed that any Advance Payment must be paid

24 before December 31, 2020, or not at all, because Congress expressly forbid the

25 Commissioner of Internal Revenue from issuing any Advance Payment later: “[n]o

26 refund or credit shall be made or allowed under this subsection after December 31,

27

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 9 of 32 Page ID #:393

1 2020.” I.R.C. § 6428(f)(3)(A).

2

However, under the exclusion provision found in § 6428(g)(1)(B) (the

3 “Exclusion Provision”), Plaintiffs and the Putative Class are not eligible for Advance

4 Payments under the Act because they filed taxes jointly with their spouses, who do

5 not hold SSNs. I.R.C. § 6428(g). American citizens who are married to other

6 American citizens and met the income eligibility requirements in 2019 will receive

7 the Advance Payment even if it turns out that their income in 2020 exceeds the

8 statutory income ceilings. The same is true of unmarried American citizens, as well

9 as American citizens married to non-citizens who have a social security number.

10 Only Plaintiffs and the Putative Class – American citizens married to individuals who

11 do not have an SSN who file joint income tax returns but otherwise meet all

12 eligibility requirements – are excluded from receiving the Advance Payment based

13 solely on whom they married.

14

Depriving U.S. citizens of an emergency benefit that has been distributed to

15 over one hundred million Americans (and counting), does not need to be repaid by

16 other Americans who are later determined to be ineligible to receive it, and – by its

17 own terms – must be issued on or before December 31, 2020, or not at all, based

18 purely on whom those chose to marry violates the United States Constitution. See

19 Treasury, IRS release latest state-by-state Economic Impact Payment figures for May

20 22, 2020 IR-2020-101, May 22, 2020, attached hereto and incorporated herein as

21 Exhibit A. Plaintiffs could request the credit (thereby risking potential criminal

22 liability), file an administrative claim for refund, and litigate the propriety of the

23 Exclusion Provision in the years to come. But doing so would not and could not

24 afford them equal treatment under the law as compared to their fellow American

25 citizens: eligibility to receive an Advance Payment, before December 31 of this year,

26 that does not require repayment regardless of later eligibility determinations.

27

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 10 of 32 Page ID #:394

1

Defendants take the same incorrect legal position in the MTD as they did in

2 their Opposition to the TRO motion. See Dkt. 23. Defendants argue, and Plaintiffs

3 agree, that in the tax context, there are limited circumstances under which suit can be

4 brought against the government. See Dkt. 30 at 6. If the Advance Payment were a tax,

5 Plaintiffs would be in jurisdictional trouble. But just as pointed out by Defendants,

6 the Advance Payment isn’t a tax, it is a refundable tax credit. See id. at 7. Because

7 Plaintiffs’ claim relates to a refundable tax credit, and not a tax, jurisdiction is

8 unequivocally established here.

9

ARGUMENT

10 I. 11

Sovereign Immunity is Waived by the APA Regardless of Whether a Claim “Arises Under” the APA

12

Plaintiffs’ claims arise under the Constitution of the United States, and

13 accordingly 28 U.S.C. § 1331 (“Section 1331”) confers jurisdiction to this Court.

14 Section 1331 provides “district courts shall have original jurisdiction of all civil

15 actions arising under the Constitution, laws […] of the United States.” 28 U.S.C.

16 § 1331. Section 1367 similarly allows jurisdiction over any supplemental claims “that

17 are so related to claims in the action within [the court’s] original jurisdiction that they

18 form a part of the same case or controversy.” 28 U.S.C. § 1367(a).

19

The Supreme Court’s newly-issued decision in Department of Homeland

20 Security et al. v. Regents of the University of California Wolf v. Vidal, No. 18-587,

21 2020 WL 3271746 (U.S. June 18, 2020) (“Regents”) eliminates any doubt that this

22 Court has jurisdiction over Plaintiffs’ claims. In Regents, an immigration relief

23 program known as Deferred Action for Childhood Arrivals (“DACA”) provided a

24 means for certain individuals who are not citizens or legal permanent residents to

25 remain in the United States. Id. at *3. The Department of Homeland Security

26 (“DHS”) rescinded the program, and the Department’s Acting Secretary issued a

27 memorandum terminating the program. Id. Affected individuals and third parties

28

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 11 of 32 Page ID #:395

1 challenged the rescission, arguing, inter alia, that the termination violated the

2 Administrative Procedure Act (“APA”). Regents, 2020 WL 3271746, at *3.

3

Like here, in Regents, the government argued that the agency action at issue

4 fell “outside this Court’s jurisdiction.” Id. at 7. The Supreme Court rejected that

5 contention because § 702 of the APA’s “basic presumption of judicial review for one

6 suffering legal wrongs because of agency action” applied, and that the Court had

7 jurisdiction. Id. (internal citations and quotations omitted). The government has not

8 argued here, as it did in Regents, that the Treasury or IRS’s actions are “committed to

9 agency discretion by law,” thus falling under the rare exception to the broad grant of

10 judicial review over agency action. Id. Indeed, such an argument would fail here,

11 because the Exclusion Provision does not provide for agency discretion.

12

Where, as here, Plaintiffs raise a valid claim that arises under federal law, the

13 federal government is the defendant, and the suit does not seek money damages,

14 “jurisdiction is secure.” Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008). The

15 APA waives sovereign immunity for the kind of relief Plaintiffs seek, so long as the

16 federal statute at issue authorizes review of agency action. Id. at 372. The APA

17 provides an express waiver of sovereign immunity where, as here, the plaintiffs seek

18 equitable relief. 5 U.S.C. § 702. Section 702 provides in relevant part:

19

An action in a court of the United States seeking relief other than

20

money damages and stating a claim that an agency [. . .] acted or

failed to act [. . .] shall not be dismissed nor relief therein be denied on

21

the ground that it is against the United States or that the United States

22

is an indispensable party.

23

In Blagojevich v. Gates, the then-governor of Illinois sued the Secretary of

24 Defense under 28 U.S.C. §§ 1331 and 1346(a)(2). The District Court for the Central

25 District of Illinois dismissed the suit sua sponte because the government had not

26 waived sovereign immunity and thus, the court lacked jurisdiction. Blagojevich, 519

27

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Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 12 of 32 Page ID #:396

1 F.3d at 370. The Seventh Circuit Court of Appeals reversed and remanded the case,

2 holding § 702 of the APA is generally applicable, regardless of whether a claim is

3 “under the APA;” and § 702 governs when “any federal statute authorizes review of

4 agency action.” Id. at 372 (citing Bowen v. Massachusetts, 487 U.S. 879 (1988))

5 (emphasis in original). The Court of Appeals for the Ninth Circuit reached a similar

6 conclusion when, in The Presbyterian Church (U.S.A.) v. United States, the court

7 reversed and remanded a case to the District Court of Arizona. 870 F.2d 518 (9th Cir.

8 1989). The Ninth Circuit rejected an attempt by INS to limit § 702 to agency action,

9 holding, “nothing in the language of the [1976] amendment to [§ 702] suggest that

10 the waiver of sovereign immunity is limited to claim challenging conduct falling

11 within the narrow definition of ‘agency action.’” Id. at 525.

12

Provisions such as “5 U.S.C. § 701(a), and § 706(2)(A) allow[] a court to set

13 aside agency action that is ‘not in accordance with law,’” and that law is not limited

14 to “another portion of the APA.” Id. The Court of Appeals for the District of

15 Columbia has reached the same conclusion. In Trudeau v. Federal Trade

16 Commission, the Federal Trade Commission (“FTC”) sought to dismiss a lawsuit for

17 lack of jurisdiction, arguing that the court had no jurisdiction over the infomercial

18 producer plaintiff’s First Amendment claims against it. Trudeau v. Federal Trade

19 Com’n, 456 F.3d 178, 184-185 (D.C. Cir. 2006). The Court of Appeals held that

20 Section 1331 provided jurisdiction. Id. at 185. The APA’s “waiver of sovereign

21 immunity applies to any suit whether under the APA or not.” Id. at 186. See also

22 Delano Farms Co. v. California Table Grape Com’n, 655 F.3d 1337, 1334 (Fed. Cir.

23 2011) (“We hold that section 702 of the APA waives sovereign immunity for non-

24 monetary claims against federal agencies, subject to the limitations in subsections (1)

25 and (2). It is not limited to ‘agency action’ or ‘final agency action,’ as those terms are

26 defined in the APA.”); Michigan v. United States Army Corps of Engineers, 667 F.3d

27

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1 765 (7th Cir. 2011) (sovereign immunity waived when “any federal statute authorizes

2 review of agency action, as well as in cases involving constitutional law.”).

3

Claims challenging Department of Treasury and Internal Revenue Service

4 action – such as distributing billions of dollars of Advance Payments to United States

5 persons but unconstitutionally excluding U.S. persons who are married to individuals

6 who do not have SSNs – have fared the same. For example, in Freedom from

7 Religion Foundation, Inc. v. Schulman, the District Court for the Western District of

8 Wisconsin held that the APA waived sovereign immunity when the Plaintiff

9 challenged IRS policy “pursuant to the Fifth Amendment’s equal-protection clause

10 and the Establishment Clause.” 961 F. Supp.2d 947, 954 (W.D. Wis. 2013). Despite

11 the lack of final agency action or action committed to agency discretion, the court

12 held “the second sentence of § 702 still waives the United States’s [sic] sovereign

13 immunity […] because that sentence is not limited to claims brought under the APA

14 itself but is generally applicable to any action for prospective relief, including an

15 action involving a constitutional challenge.” Id. (emphasis added). Section 702

16 applies here because Defendants have issued Advance Payments to over one hundred

17 million Americans, but Plaintiffs are unconstitutionally ineligible.

18 II. Plaintiffs’ Claims are not Barred by the Anti-Injunction Act or the

19

Declaratory Injunction Act

20

A. Refundable Tax Credits are Not Taxes, and Do Not Implicate the AIA or

21

the DJA.

22

Defendants admit that the CARES Act creates a “refundable tax credit.” See

23 Dkt. 30 at 7. Because it created a refundable tax credit and not a tax, neither the Anti-

24 Injunction Act (“AIA”) nor the Declaratory Judgment Act (“DJA”) bar this Court’s

25 review of the claims. Both the AIA’s text and its prior conclusive judicial

26 interpretation make clear that Plaintiffs’ claims cannot be construed as an attempt to

27

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1 “restrain[] the assessment and collection of any tax [...]” within the meaning of the

2 statute, thereby removing the essential predicate for applying the AIA.

3

The AIA does not bar this suit because Plaintiffs and the Putative Class do not

4 seek to restrain assessment or collection of any tax. The AIA provides:

5

Except as provided […] no suit for the purpose of restraining the

6

assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom

7

such tax was assessed.

8 I.R.C. § 7421(a). The CARES Act creates a refundable tax credit to be distributed as
9 an Advance Payment. Providing equal access to the Advance Payment to Plaintiffs
10 will not restrain assessment or collection of tax. I.R.C. § 6428(f)(3)(A). The DJA, 28
11 U.S.C. § 2201(a), which generally bars federal courts from granting declaratory
12 judgments “with respect to Federal taxes,” has been deemed to be “coterminous” with
13 the AIA. Fla. Bankers Ass’n v. U.S. Dep’t of the Treasury, 799 F.3d 1065, 1067
14 (D.C. Cir. 2015) (citing Cohen v. United States, 650 F.3d 717, 730-31 (D.C. Cir. 15
2011) (en banc)); see also Bob Jones Univ. v. Simon, 416 U.S. 725, 733 n.7 (1974). 16
Accordingly, neither the AIA nor the DJA inhibit this Court’s jurisdiction or the 17
APA’s waiver of sovereign immunity. 18
While the AIA denies a court’s jurisdiction from maintaining a “suit for the 19
purpose of restraining the assessment or collection of any tax,” I.R.C. § 7421 20
(emphasis added), Defendants concede that the Advance Payment is not a tax. The 21
Supreme Court emphasized the importance of the term “tax” in AIA’s text in 22
National Federation of Independent Business v. Sebelius, 567 U.S. 519, 543-46 23
(2012) (“NFIB”), when it considered whether the AIA precluded the Court from 24
reaching the merits of a constitutional challenge to the Affordable Care Act before 25
payment of the shared responsibility payment. The Court noted the “decision to label 26
this exaction a ‘penalty’ rather than a ‘tax’ is significant.” NFIB, 567 U.S. at 544. 27

28

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1

The AIA applies only when the item at issue is an “exaction,” i.e., an amount

2 due the Government, when Congress chooses to call that exaction a “tax.” The D.C.

3 Circuit took that rationale to its logical conclusion in Florida Bankers Association v.

4 U.S. Department of the Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015), declining to

5 reach the merits of a challenge to a regulation imposing reporting requirements on

6 banks, a “penalty” codified at 26 U.S.C. § 6721(a). Then-Judge Kavanaugh

7 explained, “any reference in this title to ‘tax’ imposed by this title shall be deemed

8 also to refer to the penalties and liabilities provided by this subchapter.” Id. at 1068.

9 He went on, “[i]f the penalty here were not itself a tax, the Anti-Injunction Act would

10 not bar this suit.” Id. at 1069.

11

Defendants compare the Earned Income Tax Credit (“EITC”) to the CARES

12 Act Advance Payment. See Dkt. 30 at 7. The EITC is a refundable tax credit intended

13 “to negate the disincentive to work caused by Social Security taxes.” Sorenson v.

14 Sec’y of Treasury of U.S., 475 U.S. 851, 858 (1986). It is precisely for that reason –

15 that the EITC is a refundable tax credit and not a tax – that courts have

16 unequivocally held that the AIA and the DJA do not apply to bar class action lawsuits

17 based upon refundable tax credits. For example, in Nelson v. Regan, 731 F.2d 105 (2d

18 Cir. 1984), a certified class sought declaratory and injunctive relief where refundable

19 portions of the EITC were being intercepted pursuant to § 6402(c) of the I.R.C. to

20 satisfy past due child support obligations. On appeal, the Second Circuit held that

21 neither the AIA nor the DJA prevented a hearing on the merits, because “the tax

22 intercept program [seizing past due child support] does not apply to refunds or

23 payments of earned income credits.” Id. at 110-12.

24

A circuit split developed on the issue when the Ninth Circuit came out the

25 other way in Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985),

26 holding that EITCs were subject to being intercepted under § 6402(c). The Ninth’s

27

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1 Circuit’s holding was premised on the conclusion that the EITC was “undisputedly

2 owed to petitioner and undisputedly not owed to the United States as taxes.”

3 Sorenson, 752 F.2d at 1437 (emphasis added). Eventually, the Supreme Court

4 resolved that split by siding with the Ninth Circuit in Sorenson v. Sec’y of Treasury of

5 U.S., 475 U.S. 851 (1986), holding that the EITC was subject to the past due child

6 support intercept program. Tellingly, the Government abandoned their jurisdictional

7 challenges under the AIA and the DJA before the Supreme Court.2 Thus, every court

8 to hear a challenge to the propriety of including refundable EITCs in tax refunds

9 intercepted and directed toward back child-support obligations proceeded to the

10 merits thereof, notwithstanding the AIA or DJA.

11

Similarly, in Church of Scientology of Celebrity Ctr., Los Angeles v. Egger, the

12 District Court for the District of Columbia denied the Commissioner’s Motion to

13 Dismiss for lack of jurisdiction on a claim that the IRS consider and rule promptly on

14 applications for ministers to receive certain tax-exempt status. 539 F. Supp. 491, 494

15 (D.D.C. 1982). The court denied the IRS’s motion on the relevant count, because

16 neither the AIA nor the DJA bar actions “where the litigation did not threaten to

17 deny anticipated tax revenue to the Government.” Id. (internal citations and 18 quotations omitted, emphasis added). The Government anticipates no tax revenue

19 here. The AIA and DJA simply do not apply.3 20

21

22 2 In its brief to the Supreme Court, the government acknowledged that jurisdictional contentions to district courts were “based chiefly on the Anti-Injunction Act, the tax

23 exception to the Declaratory Judgment Act, procedural limitations on refund suits,

24

and sovereign immunity …. To the extent the government renewed these arguments on appeal, the Ninth Circuit likewise rejected them …, and we have not sought

25 review of those questions here.” Brief for the Respondents, p. 4, fn. 1 (internal

26

citations omitted). 3 On May 4, 2020, the Supreme Court granted certiorari to CIC Services, LLC v.

27 Internal Revenue Service, Docket No. 19-930 (Sup. Ct. 2020) to resolve an apparent

28

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1

B. CARES Act Amendments to the Internal Revenue Code Expressly

2

Providing that the CARES Act Payments are Subject to Deficiency Procedures Remove Any Doubt that the Credit is Not a Tax.

3

4

Finally, Congress made additional amendments to the Internal Revenue Code

5 when establishing the Advance Payment that eliminate any possible argument that the

6 CARES Act Advance Payment is a tax that implicates the AIA or the DJA. Subtitle F

7 of the Internal Revenue Code provides for procedure and administration thereof.

8 Within Subtitle F, Chapter 63 provides for the Secretary’s assessment authority

9 (§ 6201 et seq.) and deficiency procedures (§ 6211 et seq.). In general, when a

10 taxpayer disagrees about the amount of tax or additions to tax that are due, the IRS

11 will determine a deficiency and issue a Notice of Deficiency, affording the taxpayer a

12 right to contest the IRS’s determination in United States Tax Court (“Tax Court”), a

13 pre-payment forum. I.R.C. §§ 6211, 6212. Or, if the IRS has determined that certain

14 “assessable penalties” apply, the IRS may assess the penalties and the taxpayer must

15 pay the disputed amount in full and file a claim for refund with the IRS and then in

16 either District Court or the Court of Federal Claims. I.R.C. §§ 6671, 7422. If a

17 taxpayer does not file a timely petition in Tax Court after receiving a Notice of

18 Deficiency, paying the disputed tax and filing a claim for refund is often the only

19 means to obtain judicial review. I.R.C. § 7422.

20

If the CARES Act created a tax, § 7422 would provide the proper avenue for

21 judicial review. However, in addition to creating the credit contained in § 6428, the

22 CARES Act also amended § 6211 of the Internal Revenue Code. The amendment to

23 § 6211 now provides that the CARES Act rebate is subject to deficiency procedures

24 and allows taxpayers to contest adverse determinations regarding CARES Act

25

26 Circuit Split between the Sixth, Seventh and Tenth Circuits on the question of whether the Anti-Injunction Act bars challenges to unlawful regulatory mandates

27 issued by administrative agencies when those mandates are not taxes.

28

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1 eligibility in Tax Court. This change to § 6211 creates administrative ease both for

2 the taxpayer and for the Internal Revenue Service. If the CARES Act credit was a tax

3 that triggered the AIA, Congress would not have needed to expressly provide that it is

4 subject to deficiency procedures in § 6211(b)(4)(A), because all tax is already subject

5 to deficiency procedures under § 6211(a). Giving meaning to every word in the

6 statutes Congress enacted requires the conclusion that the CARES Act created a tax

7 credit, not a tax, and a suit preventing Defendants from depriving Plaintiffs equal

8 access to that credit would not restrain assessment or collection of any tax. Instead,

9 the Advance Payment under § 6428 is a refundable credit—the inverse of an exaction

10 or a tax.

11 III. In the Alternative, Plaintiffs’ Case Does “Arise Under” the APA

12

Agency action reviewable under § 704 of the APA, unlike § 702 of the APA,

13 must be “final” and there must be no other adequate remedy for judicial review. U.S.

14 Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016) (“U.S. Army

15 Corps”). Section 702 of the APA creates a general waiver of the government’s

16 sovereign immunity, regardless of the cause of action. See Section I, supra. However,

17 even if that were not the case, despite what Defendants argue in pages 11 to 14 of the

18 MTD, Plaintiffs have stated a claim pursuant to the APA under § 704 as well as under

19 § 702. U.S. Army Corps, cited in Defendants’ MTD at 11, illustrates exactly why

20 Plaintiffs will prevail, even if they were required to establish that agency action is

21 final and that no other adequate review of agency action exists (which, as explained

22 above, they are not required to do).

23

A. The Agency Action at Issue is Final.

24

Agency action is “final” for purposes of § 704 of the APA if it “mark[s] the

25 consummation of the agency’s decisionmaking process,” and “the action must be one

26 by which rights or obligations have been determined, or from which legal

27

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1 consequences will flow.” U.S. Army Corps, 136 S.Ct. at 1813. The Treasury

2 Department and IRS’s decisionmaking process here is complete as it relates to

3 Plaintiffs and the Putative Class. Advance Payments have been issued to over one

4 hundred million Americans (see Exhibit A) and will not be issued to Plaintiffs based

5 on their having filed taxes jointly with spouses who do not have an SSN. Defendants

6 do not argue otherwise, but instead argue that Plaintiffs’ circumstances may change.

7 That may be true, but a change in circumstances would not render Plaintiffs eligible

8 for the Advance Payment. The agencies’ decisionmaking process here is in

9 accordance with the statute, which deprives Plaintiffs of equal treatment as compared

10 to their fellow Americans. Secondly, there can be no question that the Treasury

11 Department and IRS’s final agency decision, in issuing Advance Payments to other

12 eligible Americans but not Plaintiffs and the Putative Class, is an action that

13 determined rights or obligations. Defendants do not argue otherwise.

14

In U.S. Army Corps, the Supreme Court employed “the ‘pragmatic’ approach

15 we have long taken to finality.” Id. at 1814. When agency determination deprives a

16 party of a right or benefit others enjoy, it is final. Id. at 1815. Here, Defendants

17 determined that Plaintiffs and the Putative Class are not eligible to receive Advance

18 Payments, while they have deployed Advanced Payments to other eligible persons.

19 The agency action is final.

20

B. No Adequate Alternatives for Challenging the Agency Action Exist.

21

In U.S. Army Corps., (cited in MTD at 11), the Supreme Court held that

22 “parties need not await enforcement proceedings before challenging final agency

23 action where such proceedings carry the risk of serious ‘civil and criminal

24 penalties.’” 136 S. Ct. at 1815. As Plaintiffs explained in detail in pages 14 to 15 of

25 the TRO Reply, such is the case here. If Plaintiffs are not provided with the Advance

26 Payment, to claim the credit, Plaintiffs must file a tax return after filing season opens

27

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1 on or about February 1, 2021. Plaintiffs would either need to (A) file a tax return

2 claiming the credit and file a statement explaining they are not entitled to the credit

3 but are claiming it, and contesting the unconstitutional aspects of the law, or (B) file a

4 tax return that does not claim the credit, pay their taxes in full, and months later file

5 an amended return claiming the credit as a claim for refund following the procedures

6 in I.R.C. § 7422. No matter what avenue Plaintiffs choose, they will never receive the

7 emergency Advance Payment, which must be issued by December of 2020, and the

8 earliest potential judicial intervention is years away.

9

If Plaintiffs select option A, they open themselves up to potential civil and

10 criminal liability, see, I.R.C. §§ 6662, 7201, and must litigate the right to the credit in

11 United States Tax Court. I.R.C. § 6212. If Plaintiffs select option B, as suggested by

12 Defendants, they must wait until at least November 2021 before they can even file

13 suit. Refund claims the IRS deems false are subject to severe criminal and civil

14 penalties. See, e.g., 18 U.S.C. § 287, Internal Revenue Manual 9.1.3.4.7.1 (05-15-

15 2008) (5) (“Application of 18 U.S.C. § 287 is particularly appropriate in instances

16 where a false claim for refund has been filed. It is only necessary to prove the

17 defendant filed the claim for refund knowing that he/she was not entitled to receive

18 it.” (emphasis added)). Moreover, the Supreme Court expressly rejected the notion

19 that long, arduous, and expensive litigation is an adequate alternative to an injunction

20 prohibiting agency action. U.S. Army Corps, 136 S.Ct. at 1815-1816.

21

22 IV.

Plaintiffs Have Standing and their Claims are Ripe for Judicial Review Now

23 Plaintiffs and the Putative Class have been denied a benefit that has already
24 been provided to over one hundred million other American citizens. See Exhibit A.
25 The only thing distinguishing Plaintiffs and the Putative Class from those eligible to
26 receive the Advance Payment is whom they married. See Dkt. 28 ¶ 58. American
27

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1 citizens who are not married to non-SSN holders need not wait to file a 2020 tax

2 return in 2021 and file a claim for refund to receive the Advance Payment—it was

3 automatically issued to them. See IR 2020-61, March 30, 2020, attached hereto and

4 incorporated herein as Exhibit B. And if those American citizens who are not married

5 to individuals who lack an SSN end up earning too much money in 2020 to qualify

6 for the credit, it need not be repaid. I.R.C. § 6428(e).

7

Conversely, U.S. citizens who are married to individuals who do not have an

8 SSN and file jointly are not eligible to receive the Advance Payment. Absent this

9 Court’s intervention, they will never receive it, because it must be issued by

10 December 31, 2020 or not at all. An administrative claim for refund followed by

11 expensive refund litigation will thwart Congressional intent to prevent Plaintiffs’

12 suffering right now, including the risk of homelessness, starvation for them and their

13 families including young children, inability to seek medical treatment, and lack of

14 basic necessities such as food, medicine, and clothing. See Dkt. 28 ¶ 90. The IRS has

15 issued Advance Payments to 152,167,600 Americans, including almost 750,000

16 Americans residing outside of the United States, totaling over $257,954,545,196.00.

17 See Exhibit A. A claim for refund will not address Plaintiffs’ deprivation of unequal

18 treatment, right now.

19

Defendants made the same two fatally flawed arguments here, that Plaintiffs

20 have not been denied an Advance Payment and that Plaintiffs may become eligible

21 for the Advance Payment, that Plaintiffs demonstrated to be absolutely meritless in 22 pages 10 to 15 of the TRO reply at Dkt. 26. Rather than repeat those arguments here, 23 Plaintiffs direct the Court to that document. Another case that illustrates the absolute 24 fallacy of Defendants’ arguments is Freedom from Religion Foundation v. Shulman, 25 961 F. Supp.2d 947 (W.D. Wis. 2013). 26

27

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1

In Freedom from Religion Foundation, a tax-exempt organization filed a

2 lawsuit seeking declaratory and injunctive relief against the IRS, alleging that the IRS

3 employed disparate treatment when enforcing a policy requiring tax-exempt

4 organizations to refrain from participating in or intervening in political campaigns.

5 961 F. Supp.2d at 950. The IRS moved to dismiss, contending that the organization

6 lacked standing to sue and that the suit was barred by sovereign immunity. Id. The

7 District Court for the Western District of Wisconsin’s careful analysis of the standing

8 claim is particularly instructive here.

9

To prove that he has standing to seek injunctive relief, a plaintiff must

10

show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent,

11

not conjectural or hypothetical; it must be fairly traceable to the

12

challenged action of the defendant; and it must be likely that a

favorable judicial decision will prevent or redress the injury.

13

14

Freedom from Religion, 961 F. Supp.2d at 950 (internal citations omitted). The

15 court found that each and every requirement was met. As is particularly relevant here,

16 “[i]f it is true that the IRS has a policy of not enforcing the prohibition on

17 campaigning against religious organizations, then the IRS is conferring a benefit on

18 religious organizations (the ability to participate in political campaigns) that it denies

19 […] to the Foundation.” Id. at 951. “As a victim of the IRS’s alleged discrimination,

20 the Foundation has suffered injury in fact.” Id. (citing Heckler v. Matthews, 465 U.S.

21 728, 738-40 (1984)). Here, as in Freedom from Religion, the IRS confers a benefit in

22 the form of an Advance Payment (that does not have to be repaid even if eligibility is

23 later determined to be lacking) on U.S. Citizens other than Plaintiffs and the Putative

24 Class. Plaintiffs are now the victims of the Defendants’ discrimination, and they too

25 have suffered an injury in fact. And, just as in Freedom from Religion, “because the

26 […] IRS’s policy is ongoing, the injury is more than actual and imminent,” and

27 Plaintiffs “are being deprived of equal treatment right now.” Id. The Treasury

28

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1 Department and the Internal Revenue Service are the agencies responsible for making

2 the Advance Payment to Americans, other than Plaintiffs and the Putative Class. So

3 as in Freedom from Religion, the injury is fairly traceable to those agencies and

4 Defendants who are responsible for implementing this policy. Id. Finally, even

5 Defendants do not argue, nor could they, that an injunction prohibiting the IRS and

6 the Treasury Department from continuing the policy of discriminating against

7 Plaintiffs and the Putative Class would not prevent further injury. Id. Accordingly,

8 Plaintiffs have standing, and their injuries that are happening right now are ripe for

9 adjudication. Id. Defendants’ misguided citation to Thunder Basin Coal Company v.

10 Reich, 510 U.S. 200 (1994) (MTD at 9-10) for the proposition that courts are

11 reluctant to find pre-enforcement challenges ripe has no bearing on the instant facts,

12 where a benefit has been conferred on hundreds of millions of Americans and

13 indisputably will not be conferred on Plaintiffs and the Putative Class. Simply put,

14 discrimination itself is a cognizable injury. Id. at 952.

15 V. The FCA States a Claim for Relief

16

In a misguided attempt to sway this Court in favor of its position on the merits,

17 Defendants ask this Court to dismiss the FAC because Acts of Congress are

18 presumed to be constitutional (MTD at 14); section 6248(g) does not violate due

19 process or equal protection principles (MTD at 15-18); section 6248(d) does not

20 make distinctions based on alienage (MTD at 18); even if it did such distinction

21 would only be subject to rational basis review (MTD at 20); and Plaintiffs have failed

22 to state a cognizable legal theory (MTD at 20). Setting aside the deeply troubling

23 inferences to be drawn from the United States government taking a position that

24 allegations of discrimination do not state a claim on which relief can be granted in

25 federal courts (MTD at 14-21), none of the arguments raised by Defendants establish

26 a lack of jurisdiction or the failure to state a claim, and they do not warrant dismissal,

27

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1 much less require it.

2

The FAC alleges, inter alia, that Defendants violated Plaintiffs’ right of

3 association, right to due process of law, right to equal protection under the law

4 secured by the First, Fifth and Fourteenth Amendments to the United States

5 Constitution, as well as the penumbra of privacy rights secured by the First, Third,

6 Fourth and Fifth Amendments. See Dkt. 28 ¶ 58. The FAC also alleges that Plaintiffs

7 are suffering and, absent this Court’s immediate issuance of declaratory and

8 injunctive relief, will continue to suffer irreparable harm, including failure to meet

9 “basic necessities of life, including the ability to put food on the table, paying rent,

10 insurance, health insurance, and loss of privacy, reputation in the community, and

11 dignity.” See Dkt. 28 ¶ 90. Notably, the ability to put food on the table, pay rent,

12 insurance, and health insurance are all recognized by the IRS as “expenses that are

13 necessary to provide for a taxpayer’s (and his or her family’s) health and welfare

14 and/or production of income.” Collection Financial Standards, IRS.GOV (March 30,

15 2020), https://www.irs.gov/businesses/small-businesses-self-employed/collection-

16 financial-standards (last visited June 16, 2020). Defendants’ contention that

17 Plaintiffs’ allegations of Defendants depriving them of the ability to pay necessary

18 living expenses and loss of privacy, reputation in the community, and dignity due to

19 deprivation of constitutionally protected rights do not give rise to a cause of action is

20 patently absurd. Indeed, as the court in Freedom from Religion pointed out in

21 rejecting the IRS’s contention that it would be “inappropriate for a court to issue an

22 injunction that results in judicial supervision of the IRS’s enforcement of the tax

23 code,” this “argument goes to the merits of the case” and does not impact standing or

24 stating a valid claim on which relief can be granted. 961 F. Supp.2d at 953.

25

Defendants’ arguments and reliance on caselaw demonstrating the ubiquity of

26 discriminatory impacts resulting from a “scheme of taxation” are misplaced, and,

27

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1 indeed, fail to demonstrate any failure on Plaintiffs’ part to state a claim for relief.

2 Indeed, Plaintiffs have demonstrated (and Defendants cannot deny) that the Exclusion

3 Provision is discriminatory on its face. While certainly this Court must consider the

4 legislatures’ “efforts to tackle problems,” Defendants’ own authority notes that this

5 exercise is to be conducted “within the limits of rationality.” See Dkt. 30 at 15 (citing

6 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41 (1973). Even if this Court

7 were to decide that rational basis review applies to the circumstances here, such a

8 determination could not possibly result in a disposition at the pleading stage of the

9 litigation. Plaintiffs further direct the Court to pages 15 to 22 of the TRO Reply, in

10 which they addressed these same arguments previously advanced by Defendants.

11

A. Section 6428(g) violates the First Amendment of the U.S. Constitution.

12

The Exclusion Provision directly violates the First Amendment of the U.S.

13 Constitution. In Griswold v. Connecticut, the Court stressed the sanctity of marriage

14 lying within the zone of privacy created by several fundamental constitutional

15 guarantees. Griswold v. Connecticut, 381 U.S. 479, 485 (1965). The Exclusion

16 Provision discriminates against Plaintiffs by invading the fundamental right to the

17 sanctity of marriage and as a result of the disparate treatment, Plaintiffs are denied an

18 Advance Payment.

19

The fundamental right of marriage evokes the freedoms of association

20 embodied in our First Amendment. U.S. Const. amend. I. Roberts v. United States

21 Jaycees, 468 U.S. 609, 619-20 (1984). Moreover, the Supreme Court has further

22 established a statute may be held constitutionally invalid as applied when it operates

23 to deprive an individual of a protected right although its general validity as a measure

24 enacted in the legitimate exercise of power is beyond question. Boddie v.

25 Connecticut, 401 U.S. 371, 379 (1971) (“[T]his Court has often held that a valid

26 statute was unconstitutionally applied in particular circumstances because it

27

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1 interfered with an individual’s exercise of [First Amendment] Rights”). The First

2 Amendment requires the Right of Privacy and the fundamental right to marry to be

3 protected and the Exclusion Provision of the CARES Act violates it by intentionally

4 discriminating against Plaintiffs based on whom they chose to marry.

5

Defendants’ citations to support their argument that rational basis review

6 applies are not remotely analogous to the instant matter. See Dkt. 30 at 16-17. They

7 cite In re Talmadge, 832 F.2d 1120, 1125 (9th Cir. 1987) to support their conclusion

8 that the distinction between married and non-married persons in bankruptcy are

9 subject to rational basis review conveniently ignoring that a.) Plaintiffs, here, are

10 married; and b.) unlike bankruptcy, marriage is a fundamental right. Id. (In re

11 Statham, 483 F.2d 436, 437 (9th Cir. 1973) (citing United States v. Kras, 409 U.S.

12 434, 435 (1973)). In re Talmadge, 832 F.2d 1120, 1125 (9th Cir. 1987). Accordingly,

13 not only does Talmadge not apply, but any argument that rational basis review

14 applies fails as a matter of law.

15

B. Section 6428(g) violates the Fifth Amendment of the U.S. Constitution.

16

The Fifth Amendment provides that no person shall be “deprived of life, liberty

17 or property without due process of law.” U.S. Const. amend. V. The Supreme Court

18 has reiterated in numerous contexts that the right to marry is a fundamental right

19 under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U.S. 102, 116, 117

20 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 639-640 (1974); Griswold,

21 381 U.S. at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942);

22 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Discrimination based on the right to

23 marry is presumptively unconstitutional and subject to strict scrutiny. Latta v. Otter,

24 19 F. Supp. 3d 1054, 1066 (9th Cir. 2014) or see, e.g., Sugarman v. Dougall, 413 U.S.

25 634, 642 (1973). The Fifth Amendment protects freedom of personal choice in

26 matters of marriage and family.

27

28

- 21 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 27 of 32 Page ID #:411

1

The Exclusion Provision denies Plaintiffs a right afforded to all other United

2 States citizens who are not married to a spouse who lacks an SSN. It both impinges

3 on the fundamental right to marry in defining their families through personal choice

4 and is based upon an inherently invidious classification, subject to strict scrutiny.

5 See, e.g., Sugarman, 413 U.S. at 642.

6

The Exclusion Provision deprives Plaintiffs of the right to equal protection and

7 due process, which are “absolute” rights “in the sense that they do not depend upon

8 the merits of Plaintiff’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266

9 (1978), (citing Boddie v. Connecticut, 401 U.S. 371, 375 (1971)); Anti-Fascist

10 Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J., concurring)). The Fifth

11 Amendment provides that no person shall “be deprived of life, liberty, or property,

12 without due process of law.” USCS Const. amend. V. See also Boddie v. Connecticut,

13 401 U.S. 371, 375 (1971). Although the Fifth Amendment contains no Equal

14 Protection Clause as does the Fourteenth Amendment, the Fifth Amendment's Due

15 Process Clause prohibits the Federal Government from engaging in discrimination

16 that is “so unjustifiable as to be violative of due process.” Schlesinger v. Ballard, 419

17 U.S. 498, 500 n.3 (1975), quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954). See

18 also, Schneider v. Rusk, 377 U.S. 163, 168 (1964).

19

Arguing that § 6428(g)(1) does not impact the fundamental right to marriage

20 does not make it so. See Dkt. 30 at 17. The Exclusion Provision does

21 disproportionately and negatively impact a taxpayer who chooses to marry someone

22 who does not have an SSN. In United States v. Windsor, the Supreme Court held that

23 the Defense of Marriage Act (“DOMA”), which denied same sex couples the right to

24 marry, “violated the basic due process and equal protection principles applicable to

25 the Federal Government” under the Fifth Amendment. 570 U.S. 744, 769-70 (2013).

26 In that case, as here, the plaintiff was already married to her chosen partner and was

27

28

- 22 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 28 of 32 Page ID #:412

1 denied a tax benefit because she was in a marriage that was valid under state law, but

2 the federal government discriminated against. The Supreme Court found standing and

3 jurisdiction. Id. The right to marry confers “a dignity and status of immense import.”

4 Id. at 768. Marriage is “more than a routine classification for purposes of certain

5 statutory benefits [and is] subject to constitutional guarantees.” Id. The Court held

6 that DOMA’s “principle effect is to identify a subset of state-sanctioned marriages

7 and make them unequal. The principal purpose is not to impose inequality[.]” Id. at

8 772. Similarly, the Exclusion Provision makes a subset of state-sanctioned marriages

9 unequal by – as in Windsor – “den[ying] or reduces benefits allowed to families.” Id.

10 at 773. This Court can only conclude that while “Congress has great authority to

11 design laws to fit its own conception of sound national policy, it cannot deny the

12 liberty protected by […] Fifth Amendment.” Id. at 774.

13

C. Section 6428(g) violates the Fourteenth Amendment of the U.S.

14

Constitution.

15

Plaintiffs’ alienage challenge to the Exclusion Provision, as it relates to

16 Plaintiffs’ spouses’ immigration status, appears to be a case of the first impression.

17 See BLACK’S LAW DICTIONARY (10th ed. 2014); see also Quisenberry v.

18 Compass Vision, Inc., 618 F. Supp. 2d 1223, 1228 (S.D. Cal. 2007) (finding

19 the case to be one of first impression in the jurisdiction where no California court had

20 previously addressed the issue); In re First Alliance, 2003 U.S. Dist. LEXIS 25925,

21 2003 WL 21530096, at *10 (finding a case of first impression where “there is no

22 legal precedent by which [Defendant] could have expected liability from

23 Plaintiffs[]”). Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. CV13-5693 PSG

24 (GJSx), 2016 U.S. Dist. LEXIS 185233, at *5 (C.D. Cal. Sep. 8, 2016).

25

The Fourteenth Amendment states that no state shall “deny to any person

26 within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

27 In addition, the Privileges and Immunities Clause of the Fourteenth Amendment

28

- 23 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 29 of 32 Page ID #:413

1 states that “the citizens of each state shall be entitled to all privileges and immunities

2 of citizens in the several states.” U.S. Const. amend. XIV, § 1, cl. 2. Though the

3 Fourteenth Amendment applies to the States, it has been construed to apply to the

4 Federal Government through the Reverse Incorporation Doctrine via Bolling v.

5 Sharpe, 347 U.S. 497 (1954) and its progeny. See Brown v. Board of Education of

6 Topeka, 347 U.S. 483 (1954); Adarand Constructors, Inc. v. Peña, 515 U.S. 200

7 (1995) (applying strict scrutiny to federal government on equal protection grounds).

8

Equal Protection and Due Process are implicated when laws discriminate

9 against people for: whom they marry; alienage; poverty; and class. Boddie v.

10 Connecticut, 401 U.S. 371, 385 (1971), citing Takahashi v. Fish & Game Com., 334

11 U.S. 410 (1948), Griffin v. Illinois, 351 U.S. 12 (1956), Skinner v. Oklahoma, 316

12 U.S. 535 (1942). Indeed, the right to equal treatment guaranteed by the Constitution

13 is paramount. “[Classifications] based on alienage, like those based on nationality or

14 race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are

15 a prime example of a ‘discrete and insular’ minority [. . .] for whom such heightened

16 judicial solicitude is appropriate.” Graham v. Richardson, 403 U.S. 365, 372 (1971)

17 (footnotes and citations omitted).

18

Defendants’ reliance on alienage cases in its MTD is misplaced. See Dkt. 30 at

19 19. Defendants cite to Alcaraz v. Block, 746 F.2d. 593 (9th Cir. 1984) to argue that

20 the Ninth Circuit has previously upheld a federal program in the face of an equal

21 protection challenge. See Dkt. 30 at 19. Defendants fail to acknowledge that not only

22 was the challenged statute neutral on its face (not the case here), but also, the

23 challengers were not U.S. citizens. Here, the U.S. citizen and child(ren) are being

24 discriminated against based on the immigration status of their spouse/parent.

25 Plaintiffs further direct the Court to pages 14 to 18 of the Em. Mot., in which they

26 similarly addressed the scrutiny required. Accordingly, such a suspect classification is

27

28

- 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 30 of 32 Page ID #:414

1 subject to elevated scrutiny and could not withstand even a rational basis review.

2

Dismissal of Plaintiffs’ claims would give rise to a dangerous precedent: that in

3 times of national or global emergency, the government may elect to deny life-saving

4 relief to U.S. citizens as a direct consequence of whom they chose to marry and in

5 violation of those Constitutional protections afforded to all. Plaintiffs implore this

6 Honorable Court to ensure the protection of their most basic freedoms and to preserve

7 and defend our Constitution as Defendants have failed to do here. The Exclusion

8 Provision cannot stand.

9

CONCLUSION

10

WHEREFORE, for the reasons stated herein above, Plaintiffs, individually and

11 on behalf of others similarly situated, respectfully request that this Court enter an

12 order denying Defendants’ Motion to Dismiss in its entirety or, in the alternative,

13 granting Plaintiffs leave to amend their First Amended Complaint, and for any and all

14 such other relief as this Court deems necessary and proper.

15 16 DATED: June 22, 2020

Respectfully submitted,

17

JANE DOE and JOHN DOE, individually and

18

on behalf of others similarly situated.

19

By: /s/ Heather L. Blaise

20

HEATHER L. BLAISE, ESQ. (SBN 261619)

21

123 N. Wacker Drive, Suite 250

22

Chicago, IL 60606

Telephone: 312-448-6602

23

Email: hblaise@blaisenitschkelaw.com

24

Attorney for Plaintiffs

25

26

BLAISE & NITSCHKE, P.C. Lana B. Nassar (IL Bar No. 6319396) **

27

28

- 25 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 31 of 32 Page ID #:415

1

Thomas J. Nitschke (IL Bar No. 6225740) *

2

Elisabeth A. Gavin (IL Bar No. 6297740) *

123 N. Wacker Drive, Suite 250

3

Chicago, IL 60606

4

T: (312) 448-6602

5

F: (312) 803-1940

6

lnassar@blaisenitschkelaw.com

7

MATERN LAW GROUP

8

Matthew J. Matern (SBN 159798)

9

Joshua D. Boxer (SBN 226712)

1230 Rosecrans Avenue, Suite 200

10

Manhattan Beach, CA 90266

11

T: (310) 531-1900

12

F: (310) 531-1901

mmatern@maternlawgroup.com 13

14

MOORE TAX LAW GROUP LLC

15

Guinevere M. Moore (admitted pro hac vice)

16

150 N. Wacker Drive, Suite 1250

Chicago, Illinois 60606

17

T: (312) 549-9992

18

F: (312) 549-9991

19

guinevere.moore@mooretaxlawgroup.com

20

KHALAF & ABUZIR, LLC

21

Vivian Khalaf (IL Bar No. 6210668) *

22

Omar Abuzir (IL Bar No. 6257708) *

23

20 N. Clark, Suite 720 Chicago, IL 60602

24

T: (708)-233-1122

25

F: (708)-233-1161

26

vkhalaf@immigrationjd.com

27

28

- 26 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32 Filed 06/22/20 Page 32 of 32 Page ID #:416

1

** Application for admission pro hac vice

2

pending

*Application for admission pro hac vice

3

forthcoming

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 27 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 8:20-cv-00858-SVW-JEM Document 32-1 Filed 06/22/20 Page 1 of 3 Page ID #:417

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

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

Economic Impact Payments, totals by State.

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

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

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

page 1

EXHIBIT A

Case 8:20-cv-00858-SVW-JEM Document 32-1 Filed 06/22/20 Page 2 of 3 Page ID #:418

Illinois

IL

Indiana

IN

Kansas

KS

Kentucky

KY

Louisiana

LA

Maine

ME

Maryland

MD

Massachusetts

MA

Michigan

MI

Minnesota

MN

Mississippi

MS

Missouri

MO

Montana

MT

Nebraska

NE

Nevada

NV

New Hampshire

NH

New Jersey

NJ

New Mexico

NM

New York

NY

North Carolina

NC

North Dakota

ND

Ohio

OH

Oklahoma

OK

Oregon

OR

Pennsylvania

PA

Rhode Island

RI

South Carolina

SC

South Dakota

SD

Tennessee

TN

Texas

TX

Utah

UT

Vermont

VT

Virginia

VA

Washington

WA

West Virginia

WV

Wisconsin

WI

Wyoming

WY

Foreign Addresses

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

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

Case 8:20-cv-00858-SVW-JEM Document 32-1 Filed 06/22/20 Page 3 of 3 Page ID #:419
Economic Impact Payment help available on IRS.gov IRS.gov has a variety of tools and resources available to help individuals and businesses navigate Economic Impact Payments and get the information they need about EIP and other CARES Act provisions. Economic Impact Payment FAQs: The IRS is seeing a variety of questions about Economic Impact Payments, ranging from eligibility to timing. These FAQs provide an overview and are updated frequently. Taxpayers should check the FAQs often for the latest additions; many common questions are answered on IRS.gov already, and more are being developed.
-30-
page 3

Case 8:20-cv-00858-SVW-JEM Document 32-2 Filed 06/22/20 Page 1 of 2 Page ID #:420
Economic impact payments: What you need to know
Updated with new information for seniors, retirees on April 1, 2020. Also see Treasury news release.
Check IRS.gov for the latest information: No action needed by most people at this time
IR-2020-61, March 30, 2020 WASHINGTON — The Treasury Department and the Internal Revenue Service today announced that distribution of economic impact payments will begin in the next three weeks and will be distributed automatically, with no action required for most people. However, some taxpayers who typically do not file returns will need to submit a simple tax return to receive the economic impact payment.
Who is eligible for the economic impact payment?
Tax filers with adjusted gross income up to $75,000 for individuals and up to $150,000 for married couples filing joint returns will receive the full payment. For filers with income above those amounts, the payment amount is reduced by $5 for each $100 above the $75,000/$150,000 thresholds. Single filers with income exceeding $99,000 and $198,000 for joint filers with no children are not eligible. Social Security recipients and railroad retirees who are otherwise not required to file a tax return are also eligible and will not be required to file a return. Eligible taxpayers who filed tax returns for either 2019 or 2018 will automatically receive an economic impact payment of up to $1,200 for individuals or $2,400 for married couples and up to $500 for each qualifying child.
How will the IRS know where to send my payment?
The vast majority of people do not need to take any action. The IRS will calculate and automatically send the economic impact payment to those eligible. For people who have already filed their 2019 tax returns, the IRS will use this information to calculate the payment amount. For those who have not yet filed their return for 2019, the IRS will use information from their 2018 tax filing to calculate the payment. The economic impact payment will be deposited directly into the same banking account reflected on the return filed.
The IRS does not have my direct deposit information. What can I do?
In the coming weeks, Treasury plans to develop a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately as opposed to checks in the mail.
I am not typically required to file a tax return. Can I still receive my payment?
EXHIBIT B

Case 8:20-cv-00858-SVW-JEM Document 32-2 Filed 06/22/20 Page 2 of 2 Page ID #:421
Yes. The IRS will use the information on the Form SSA-1099 or Form RRB-1099 to generate Economic Impact Payments to recipients of benefits reflected in the Form SSA-1099 or Form RRB-1099 who are not required to file a tax return and did not file a return for 2018 or 2019. This includes senior citizens, Social Security recipients and railroad retirees who are not otherwise required to file a tax return. Since the IRS would not have information regarding any dependents for these people, each person would receive $1,200 per person, without the additional amount for any dependents at this time.
I have a tax filing obligation but have not filed my tax return for 2018 or 2019. Can I still receive an economic impact payment?
Yes. The IRS urges anyone with a tax filing obligation who has not yet filed a tax return for 2018 or 2019 to file as soon as they can to receive an economic impact payment. Taxpayers should include direct deposit banking information on the return.
I need to file a tax return. How long are the economic impact payments available?
For those concerned about visiting a tax professional or local community organization in person to get help with a tax return, these economic impact payments will be available throughout the rest of 2020.
Where can I get more information?
The IRS will post all key information on IRS.gov/coronavirus as soon as it becomes available. The IRS has a reduced staff in many of its offices but remains committed to helping eligible individuals receive their payments expeditiously. Check for updated information on IRS.gov/coronavirus rather than calling IRS assistors who are helping process 2019 returns.
Page Last Reviewed or Updated: 16-Apr-2020

 
 Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 1 of 12 Page ID #:450

1 NICOLA T. HANNA

United States Attorney

2 THOMAS D. COKER

Assistant United States Attorney

3 Chief, Tax Division

MELISSA BRIGGS (Cal. Bar No. 320697)

4 JOHN D. ELLIS (Cal. Bar No. 322922)

Assistant United States Attorneys

5

Federal Building, Suite 7211

300 North Los Angeles Street

6

Los Angeles, California 90012

Telephone: (213) 894-6165

7

(213) 894-2740

Facsimile: (213) 894-0115

8

E-mail: melissa.briggs2@usdoj.gov

john.ellis3@usdoj.gov

9

Attorneys for the

10 United States of America

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

Reply to Opposition to Motion to Dismiss

16 v.

(ECF 32); Memorandum of Points and Authorities

17

DONALD J. TRUMP, et al.,

Hearing Date: July 13, 2020

18

Time:

1:30 p.m.

Defendants.

Courtroom: 10A

19

Location:

350 W. 1st Street

Los Angeles, CA 90012

20

Hon. Stephen V. Wilson

21

22

23

24

25

26

27

28

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 2 of 12 Page ID #:451

1

The United States of America (United States) hereby replies to the June 22, 2020,

2 opposition to motion to dismiss (opposition, ECF 32) filed by plaintiffs Jane Doe and

3 John Doe.

4

5 Dated: June 29, 2020

Respectfully submitted,

6

NICOLA T. HANNA

United States Attorney

7

THOMAS D. COKER

Assistant United States Attorney

8

Chief, Tax Division

9

/s/ John D. Ellis

MELISSA BRIGGS

10

JOHN D. ELLIS

Assistant United States Attorneys

11

Attorneys for the

12

United States of America

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 3 of 12 Page ID #:452

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

The United States demonstrated in its motion to dismiss (ECF 30) that this Court

4 lacks jurisdiction over plaintiffs’ claims and that the first amended complaint (ECF 28)

5 fails to state a claim upon which relief can be granted. Plaintiffs’ opposition does not

6 address, much less refute, binding authority requiring plaintiffs to seek relief via the tax

7 refund provisions in 26 U.S.C. § 7422. Nor does it distinguish precedent demonstrating

8 that plaintiffs’ constitutional claims fail to state a claim upon which relief can be granted.

9 The United States addresses each of plaintiffs’ arguments in turn.1

10 II. ARGUMENT

11

A. Plaintiffs ignore binding Supreme Court and Ninth Circuit precedent

12

requiring them to avail themselves of the specific remedy in

13

26 U.S.C. § 7422

14

Plaintiffs’ opposition (ECF 32 at 10-13) attempts to recast plaintiffs’ claims as

15 stand-alone constitutional claims under section 702 of the Administrative Procedure Act

16 (APA), 5 U.S.C. § 701 et seq.2 Although the Ninth Circuit has allowed constitutional

17 challenges to agency action to proceed under section 702 where neither section 704 of

18 the APA nor any other statute provides for the review of a plaintiff’s constitutional

19 claims, this is not such a situation. See Juliana v. United States, 947 F.3d 1159, 1167-68

20 (9th Cir. 2020) (citing Sierra Club v. Trump, 929 F.3d 670, 698-99 (9th Cir. 2019) and

21

22

1 Plaintiffs spend over three pages of their opposition arguing that the Anti-

23 Injunction Act, 26 U.S.C. § 7421, and Declaratory Judgment Act, 28 U.S.C. § 2201(a),

do not bar their action. The United States has never contended that either provision

24 applies. Moreover, the conclusion that plaintiffs eventually reach--that the CARES Act

credit is a refundable tax credit--is a fundamental premise of the United States’

25 argument.

26

2 Plaintiffs’ argument on this point is unclear and relies primarily on out-of-circuit

cases. Plaintiffs discuss Presbyterian Church v. United States, 870 F.2d 518 (9th Cir.

27 1989) but not the more recent Ninth Circuit cases on this issue.

28 1

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 4 of 12 Page ID #:453

1 Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1170 (9th Cir. 2017)).3 As

2 explained in the United States’ motion (ECF 30 at 14-16) and reiterated below, 26

3 U.S.C. § 7422 provides plaintiffs their exclusive remedy to obtain the refund of the tax

4 credit they seek.

5

Plaintiffs’ opposition fails to address the Ninth Circuit and Supreme Court

6 precedent cited in the United States’ motion which requires plaintiffs to avail themselves

7 of the specific remedy set forth in section 7422. See City of Oakland v. Lynch, 798 F.3d

8 1159, 1165 (9th Cir. 2015) (“It is a ‘well-established principle that, in most contexts, a

9 precisely drawn, detailed statute pre-empts more general remedies.’”) (quoting Hinck v.

10 United States, 550 U.S. 501, 506 (2007)). As the Supreme Court has repeatedly stated,

11 Congress has designated section 7422 (and its predecessor provisions) as the exclusive

12 vehicle to recover tax credits. See United States v. Clintwood Elkhorn Mining Co., 553

13 U.S. 1, 5-8 (2008) (affirming section 7422 as the exclusive vehicle for tax refund

14 claims); Quarty v. United States, 170 F.3d 961, 973 (9th Cir. 1999) (dismissing

15 constitutional claim for lack of jurisdiction because plaintiff was required to comply with

16 requirements of section 7422 to raise constitutional claim).

17

Plaintiffs’ contention (ECF 32 at 17) that the CARES Act credit is excepted from

18 the requirements set forth in section 7422 because it is a refundable tax credit, rather

19 than a tax, ignores applicable and binding precedent. As explained in the United States’

20 motion (ECF 30 at 15), refundable credits create a legal fiction that the recipient has

21 overpaid her taxes, thereby entitling her to a refund in an amount corresponding to the

22 constructive overpayment. See 26 U.S.C. § 6401(b)(1); Sorenson v. Sec’y of Treasury,

23 475 U.S. 851, 864 (1986) (discussing the earned income tax credit). The mechanism to

24

25

3 The United States does not concede that such a cause of action exists. Indeed, the Supreme Court, in staying the order granting a permanent injunction in Sierra Club,

26

held that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review . . .” Trump v. Sierra Club, 140 S. Ct. 1 (2019)

27

(mem.); but see Sierra Club v. Trump, -- F.3d --, 2020 WL 3478900, at *9 (9th Cir. June 26, 2020) (noting the Supreme Court’s conclusion yet determining that the Sierra Club

28 had a constitutional and ultra vires cause of action).

2

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 5 of 12 Page ID #:454

1 obtain such credits is the refund scheme in section 7422 that Congress crafted. See

2 Sorenson v. Sec’y of Treasury, 752 F.2d 1433, 1439 (9th Cir. 1985) (section 7422

3 requires a claim for a refund or credit to be filed with the IRS); Oatman v. Dep’t of

4 Treasury, 34 F.3d 787, 789 (9th Cir. 1994) (same); see also Sarmiento v. United States,

5 678 F.3d 147, 151 (2d Cir. 2012) (taxpayers satisfied section 7422’s requirements before

6 bringing claim for tax credits under former section 6428).

7

Although plaintiffs’ first amended complaint purports to seek declaratory and

8 injunctive relief, plaintiffs’ alleged injury is the denial of a tax credit, and the relief they

9 seek is the issuance of the credit (specifically, as an advance refund). Plaintiffs may not

10 short-circuit the refund scheme crafted by Congress in section 7422 through creative

11 pleading. See City of Oakland, 798 F.3d at 1165 (“Permitting parties to file under the

12 APA and circumvent the short deadlines Congress established . . . would make mush of

13 the law.”); see also Hinck 550 U.S. at 506 (holding a “precisely drawn, detailed statute”

14 in the Internal Revenue Code provided the taxpayer’s “exclusive” and “specific”

15 remedy); Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not intend

16 . . . to duplicate existing procedures for review of agency actions.”).

17

Plaintiffs’ opposition does not cite, much less distinguish, the binding precedent in

18 Clintwood, City of Oakland, Hinck, Quarty, Sorenson,4 or Oatman requiring them to

19 bring their claim to obtain the CARES Act tax credit using section 7422. Instead, it cites

20 only U.S. Army Corps of Engineers v. Hawkes Co., Inc. (Army Corps), 136 S. Ct. 1807

21 (2016), for the proposition that “the Supreme Court expressly rejected the notion that

22 long, arduous, and expensive litigation is an adequate alternative to an injunction

23 prohibiting agency action.” (ECF 32 at 20.) But Army Corps is inapposite on that point.

24 There, the Supreme Court reviewed a jurisdictional determination under the Clean Water

25

26

4 Although plaintiffs cite Sorenson in the context of the Anti-Injunction and

27

Declaratory Judgment Acts (see ECF 32 at 15-16), they fail to mention or address the Ninth Circuit’s conclusion that the district court’s jurisdiction was premised on section

28 7422. See Sorenson, 752 F.2d at 1439.

3

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 6 of 12 Page ID #:455

1 Act via a suit brought under section 704 of the APA. It rejected the position that

2 applying for a permit and seeking judicial review if the application was denied

3 constituted an alternative remedy. The permitting procedure itself would have required

4 expenditures of over $100,000 “[a]nd whatever pertinence all this might have to the

5 issuance of a permit, none of it w[ould] alter the finality of the approved [jurisdictional

6 determination], or affect its suitability for judicial review.” 136 S. Ct. at 1816. In

7 contrast, the Supreme Court and the Ninth Circuit have long upheld section 7422’s

8 jurisdictional requirements and held that taxpayers may not challenge a denial of a tax

9 benefit without first seeking the benefit of the provision, following the refund provisions,

10 and then filing suit, even if the taxpayer is bringing constitutional claims, and even if

11 such an exercise seems futile. See Clintwood, 553 U.S. at 11-12 (explaining “Congress

12 has indeed established a detailed refund scheme that subjects complaining taxpayers to

13 various requirements before they can bring suit” which applies even when taxpayers

14 seek to bring a constitutional claim); Quarty, 170 F.3d at 973 (requiring section 7422

15 administrative claim for refund in order to bring constitutional claim even if futile); see

16 also Sorenson, 752 F.2d at 1439 (jurisdiction requires a section 7422 claim); Oatman, 34

17 F.3d at 789 (same).

18

B. The non-issuance of an advance refund is not final agency action under

19

the APA

20

Plaintiffs contend (ECF 32 at 18-19) that the IRS’s failure to issue them an

21 advance refund is “final agency action” under the APA. As explained in the United

22 States’ motion to dismiss (ECF 30 at 21), “two conditions [must] generally be satisfied

23 for agency action to be ‘final’ under the APA. First, the action must mark the

24 consummation of the agency’s decisionmaking process--it must not be of a merely

25 tentative or interlocutory nature. And second, the action must be one by which rights or

26 obligations have been determined, or from which legal consequences will flow.” Army

27 Corps, 136 S. Ct. at 1813 (quotation and citation omitted).

28 4

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 7 of 12 Page ID #:456

1

Plaintiffs’ opposition implies that advance refunds are somehow distinct from the

2 CARES Act credit to which they relate. The supposed difference cannot be reconciled

3 with the way that Congress drafted section 6428. The language added to the Internal

4 Revenue Code by Congress in section 6428 creates a credit based on an individual’s

5 2020 adjusted gross income, filing status, and the number of qualifying children claimed

6 on her return. That credit can be issued to an eligible individual in one of three ways: (1)

7 as an advance refund in 2020, (2) as a refundable tax credit claimed on a 2020 tax return,

8 or (3) in part as an advance refund and in part as a refundable tax credit. See 26 U.S.C.

9 §§ 6428(a), (e), and (f). If the IRS does not issue an advance refund to an individual

10 who eventually qualifies for a CARES Act credit or issues her an advance refund that is

11 less than the credit for which she eventually qualifies, the individual may claim the

12 remaining credit on her 2020 tax return. See 26 U.S.C. § 6428(e)(1). An individual’s

13 eligibility for and the amount of the CARES Act credit cannot be determined until the

14 tax year ends and the IRS receives and reviews the individual’s 2020 tax return, and

15 there are many instances in which an individual will receive an advance refund that is

16 less than the CARES Act credit for which she eventually qualifies. But because the

17 amount of any advance refund must be reconciled with the amount of any CARES Act

18 credit for which an individual eventually qualifies, see 26 U.S.C. § 6428(e), the IRS’s

19 issuance or non-issuance of an advance refund is most appropriately characterized as an

20 approximation (based on 2018 or 2019 tax information) of the CARES Act credit an

21 individual will receive. The issuance or non-issuance of an advance refund, then, is not

22 final agency action in any sense.

23

C. Plaintiffs do not refute that section 7422 provides an adequate

24

alternative

25

In their opposition, plaintiffs contend that claiming the CARES Act credit on their

26 respective 2020 tax returns or an amended 2020 tax return is not an “adequate alternative

27 for challenging” the IRS’s alleged denial of an advance refund. (ECF 32 at 19-20).

28 5

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 8 of 12 Page ID #:457

1 Plaintiffs contend that they cannot raise their constitutional arguments administratively

2 because doing so would subject them to civil liability under 26 U.S.C. § 6662 or criminal

3 liability under 26 U.S.C. § 7201 or 18 U.S.C. § 287. Plaintiffs are mistaken. None of

4 these provisions apply if, as the United States has suggested, the plaintiffs submit their

5 respective 2020 federal income tax returns using the married filing jointly filing status,

6 timely pay any taxes due for the year, then submit administrative claims for refund

7 requesting a CARES Act credit on the grounds that section 6428(g) is unconstitutional.

8 See 26 U.S.C. § 6662(a) (providing that the penalty applies to “underpayments of tax

9 required to be shown on a return”); Sansone v. United States, 380 U. S. 343, 351 (1965)

10 (“the elements of § 7201 are will-fulness[,] the existence of a tax deficiency[,] and an

11 affirmative act constituting an evasion or attempted evasion of the tax” ) (citations

12 omitted); 18 U.S.C. § 287 (applying to claims known to be “false, fictitious, or

13 fraudulent”).

14

D. Plaintiffs lack standing and their claims are not yet ripe for review

15

Plaintiffs contend that they have standing and their claims are ripe for review

16 “right now” because they have not received an advance refund (ECF 32 at 20-23)

17 (emphasis removed). As the United States has explained, however, there is no

18 justiciable right to an advance refund in section 6428. And even if there were such a

19 right, the IRS is authorized to issue advance refunds through December 31, 2020. 26

20 U.S.C. § 6428(f)(3)(A). As such, any injury plaintiffs have suffered from their alleged

21 exclusion from the scheme set forth in section 6428 will be hypothetical, rather than

22 concrete and particularized, until the year ends.

23

Additionally, as the United States previously explained (ECF 30 at 16), a plaintiff

24 must actually seek a tax benefit in order to have standing to challenge the denial of that

25 benefit as unconstitutional. See, e.g., Droz v. Commissioner, 48 F.3d 1120, 1122 & n.1

26 (9th Cir. 1995). These requirements apply even if plaintiffs believe that performing

27 them would be an exercise in futility. Quarty, 170 F.3d at 973. Until plaintiffs file an

28 6

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 9 of 12 Page ID #:458

1 administrative claim for refund and are denied a refund of a credit as required by section

2 7422 they lack standing.

3

Plaintiffs do not address the binding authority on standing cited in the United

4 States’ motion. Instead, they direct the Court’s attention to an out-of-circuit district

5 court case, Freedom from Religion Foundation, Inc. v. Shulman, 961 F.Supp.2d 947

6 (W.D. Wisc. 2013), for the proposition that they have suffered an injury in fact. That

7 case is distinguishable.5 It concerned an equal protection challenge to an ongoing IRS

8 policy prohibiting religious organizations from participating in political campaigns. Id.

9 at 951. Assuming that such a religious organization had a right to participate in political

10 campaigns, the alleged prohibition was in effect, and therefore causing harm, when the

11 case was filed.

12

Here, however, any injury plaintiffs have suffered is hypothetical, rather than

13 concrete and particularized, because section 6428 did not confer a right to an advance

14 refund upon any individual. Instead, a CARES Act credit may be issued in one of three

15 ways: (1) as an advance refund, (2) as a refundable tax credit, or (3) as a combination of

16 the two. The ultimate amount of any credit cannot be determined until the tax year ends

17 and the claimant has selected a filing status on a 2020 tax return. Indeed, as the United

18 States has repeatedly noted, if the facts in the first amended complaint are true, plaintiffs

19 can each qualify for a CARES Act credit by electing to file their respective 2020 tax

20 returns using the married filing separately filing status. Until they have filed their 2020

21 tax returns and have been denied a tax benefit under section 6428, plaintiffs lack

22 standing.

23

Plaintiffs argue (ECF 32 at 21) that Congress intended to expedite advance

24 refunds of the CARES Act credit but ignore that the statute itself does not confer on any

25

26

5 The parties voluntarily dismissed that case before the United States could appeal the district court’s flawed standing analysis. In addition, the case is in substantial

27

tension with the Seventh Circuit’s later-decided opinion in Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014). Although cited by the United States

28 (ECF 30 at 14), the Seventh Circuit’s opinion goes unmentioned by plaintiffs.

7

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 10 of 12 Page ID #:459

1 individual the right to an immediate credit. The statute provides that the CARES Act

2 credit can be issued as an advance refund, as a tax credit claimed on a 2020 tax return, or

3 as some combination of the two. And even assuming arguendo that the statute confers a

4 right to an advance refund--which it does not--the IRS has until December 31, 2020, to

5 issue such advance refunds.

6

E. Plaintiffs fail to state a claim upon which relief can be granted

7

1. Plaintiffs fail to state a cognizable constitutional claim based on the

8

right to marry

9

Plaintiffs’ opposition (ECF 32 at 25-28) alleges that the CARES Act infringes

10 upon their fundamental right to marry in violation of both the First and Fifth

11 Amendments but fails to address the binding precedent cited in the United States’

12 motion. And to be sure, plaintiffs do not identify any cases that extend the fundamental

13 right to marry beyond the right to enter into a legally recognized union. As the United

14 States explained (ECF 30 at 24-25), section 6428(g) does not “interfere directly and

15 substantially with the right to marry” because plaintiffs have not been prevented from

16 marrying individuals of their choosing. Zablocki v. Redhail, 434 U.S. 374, 387 (1978).

17 Nor does it, as plaintiffs contend, “disproportionately and negatively impact a taxpayer

18 who chooses to marry someone who does not have an SSN” (ECF 32 at 27) because

19 such a taxpayer who otherwise qualifies may claim and receive a CARES Act credit by

20 filing her 2020 tax return using the married filing separately filing status.

21

Plaintiffs rely on United States v. Windsor, 570 U.S. 744 (2013), for the

22 proposition that section 6428(g) is unconstitutional. It is inapposite. Windsor concerned

23 the Defense of Marriage Act’s exclusion of same-sex spouses from receiving federal

24 estate tax benefits that were afforded to individuals in opposite-sex marriages. No such

25 exclusion is at issue here. Indeed, plaintiffs are not excluded from CARES Act tax

26 credits at all because they can, assuming the allegations in the first amended complaint

27 are true, receive a CARES Act credit by electing to file their respective 2020 federal

28 8

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 11 of 12 Page ID #:460

1 income tax returns using the married filing separately filing status. Moreover, the Court

2 in Windsor confirmed “that Congress, in enacting discrete statutes, can make

3 determinations that bear on marital rights and privileges.” Id. at 764.

4

In sum, section 6428(g) distinguishes between individuals who file using the

5 married filing jointly filing status and those who file using the married filing separately

6 filing status if they are married to individuals without social security numbers. Similar

7 distinctions in the Tax Code have been consistently upheld as constitutional.

8

2. Plaintiffs fail to state a cognizable constitutional claim regarding

9

discrimination based on their spouses’ alienage

10

Plaintiffs’ opposition (ECF 32 at 28-30) frames their alienage claim as an

11 allegation that section 6428 violates the Fourteenth Amendment’s equal protection

12 provisions by discriminating against citizens based on their marriage to non-citizens.

13 Plaintiffs invoke Graham v. Richardson, 403 U.S. 365, 372 (1971), for the proposition

14 that section 6428 is subject to strict scrutiny, but as the United States explained in its

15 motion (ECF 30 at 28), that case dealt with a state classification based on alienage, not a

16 federal one. Federal distinctions based on alienage are subject only to rational basis

17 review. See id. at 376-77; Mathews v. Diaz, 426 U.S. 67, 81-85 (1976).

18

Plaintiffs cite no apposite authority for the proposition that section 6428(g) should

19 be subjected to strict scrutiny. That is not surprising because, as the United States

20 explained in its motion (ECF 30 at 27-28), the Tax Code contains a number of provisions

21 which treat U.S. citizens married to non-citizens differently than U.S. citizens married to

22 U.S. citizens. These provisions have consistently passed constitutional muster. See

23 Hofstetter v. Commissioner, 98 T.C. 695, 701–02 (1992) (rejecting constitutional

24 challenge to Code provision that prevented taxpayer from filing a joint return, thus

25 denying him exemptions to which he would have otherwise been entitled because of his

26 spouse’s alienage); Schinasi v. Commissioner, 53 T.C. 382, 384 (1969) (holding that 26

27 U.S.C. § 6013(a)(1) was reasonable and did not violate the Constitution in precluding

28 9

Case 8:20-cv-00858-SVW-JEM Document 36 Filed 06/29/20 Page 12 of 12 Page ID #:461

1 individuals married to individuals who were nonresident aliens for any part of the

2 taxable year from filing joint federal tax returns). To be sure, the distinctions in section

3 6248 that require plaintiffs to choose the married filing separately filing status in order to

4 obtain a CARES Act credit also pass rational basis review.

5 III. CONCLUSION

6

For the reasons stated in the United States’ motion and this reply, plaintiffs’ action

7 should be dismissed because this Court lacks jurisdiction over plaintiffs’ claims and

8 because the first amended complaint fails to state a claim upon which relief can be

9 granted.

10

11 Dated: June 29, 2020

Respectfully submitted,

12

NICOLA T. HANNA

United States Attorney

13

THOMAS D. COKER

Assistant United States Attorney

14

Chief, Tax Division

15

/s/ John D. Ellis

MELISSA BRIGGS

16

JOHN D. ELLIS

Assistant United States Attorneys

17

Attorneys for the United States of America

18

19

20

21

22

23

24

25

26

27

28 10

 
 Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 1 of 7 Page ID #:462

1 Lawrence J. Joseph (SBN 154908) 2 Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A 3 Washington, DC 20036
Tel: 202-355-9452 4 Fax: 202-318-2254
Email: ljoseph@larryjoseph.com 5
6 Counsel for Federation for American Immigration Reform

7

8

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

SOUTHERN DIVISION

10

No. 8:20-cv-00858-SVW-JEM

11

12 JANE DOE, et al.,

13

Plaintiff,

14

v.

DONALD J. TRUMP, et al.,
15 Defendants.

16

Notice of Motion and Motion for Leave to File Memorandum of Law as Amicus Brief in Support of Defendants’ Motion to Dismiss

Hearing on Motion to Dismiss

Hearing Date:

July 13, 2020

Time:

1:30 p.m.

Courtroom:

10A

Location:

350 W. 1st Street

Los Angeles, CA 90012

17

Hon. Stephen V. Wilson

18

19

PLEASE TAKE NOTICE that movant Federation for American Immigration Reform

20 (“FAIR”) respectfully moves this Court for leave to file the accompanying memorandum of law

21 as an amicus curiae brief in support of the federal defendants’ motion to dismiss. Although
22 FAIR’s motion does not warrant a hearing, FAIR’s amicus brief concerns the matter being heard
23 on July 13, 2020, at 1:30 p.m., before Judge Stephen V. Wilson in Los Angeles, Courtroom 10A.
24 At the hearing on July 13, 2020, the federal defendants will move this Court to dismiss
25 this action under FED. R. CIV. P. 12(b)(1) for lack of jurisdiction and under FED. R. CIV. P.
26

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

1

Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 2 of 7 Page ID #:463

12(b)(6) for failure to state a claim. The amicus brief that is the subject of this motion 1 2 supplements the jurisdictional and merits arguments raised by the defendants. The parties neither 3 consented to FAIR’s motion nor indicated whether they intended to oppose it.1

4

IDENTITY AND INTEREST OF AMICUS CURIAE

5

Amicus curiae Federation for American Immigration Reform (“FAIR”) is a nonprofit

6 organization incorporated in the District of Columbia and classified as an educational charity
7 under I.R.C. § 501(c)(3). FAIR is American’s largest and oldest public interest group advocating
8 for the control of illegal immigration and the reduction in legal migration to levels more
9 consistent with the national interest and sound public policy. FAIR has members in all fifty states,
10
11 and nearly one million members in total.

12

REASONS TO GRANT LEAVE TO FILE

13

District courts have broad discretion to accept amicus curiae submissions. Hoptowit v.

14 Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515

15 U.S. 472 (1995). Accordingly, this Court accepts amicus briefs and memoranda in appropriate

16 cases. See, e.g., Valentini v. Shinseki, 860 F. Supp. 2d 1079, 1088 (C.D. Cal. 2012). Unlike the
17 corresponding appellate rules, the federal and local rules applicable here do not address amicus
18 submissions. Nonetheless, movant FAIR respectfully submits that the appellate rules’ criteria for
19
granting leave to file amicus briefs support FAIR’s motion here.2 20

21

The Advisory Committee Note to the 1998 amendments to Appellate Rule 29 explains

22

1

Movant FAIR sought the parties’ positions by email on June 19, 2020. The defendants

23 indicated only that they do not consent; the plaintiffs did not respond.

24 2

Consistent with FED. R. APP. P. 29(a)(4)(E), counsel for movant authored the motion and

25 brief in whole, and no counsel for a party authored the motion or brief in whole or in part, nor did any person or entity, other than the movant and its counsel, make a monetary contribution to

26 preparation or submission of the motion or brief.

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

2

Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 3 of 7 Page ID #:464

that “[t]he amended rule … requires that the motion state the relevance of the matters asserted to 1 2 the disposition of the case” as “ordinarily the most compelling reason for granting leave to file.”

3 FED. R. APP. P. 29, Advisory Committee Notes, 1998 Amendment. As now-Justice Samuel Alito

4 wrote while serving on the U.S. Court of Appeals for the Third Circuit, “I think that our court

5 would be well advised to grant motions for leave to file amicus briefs unless it is obvious that the
6 proposed briefs do not meet Rule 29’s criteria as broadly interpreted. I believe that this is 7
consistent with the predominant practice in the courts of appeals.” Neonatology Assocs., P.A. v. 8
Comm’r, 293 F.3d 128, 133 (3d Cir. 2002) (citing Michael E. Tigar and Jane B. Tigar, Federal 9
Appeals – Jurisdiction and Practice 181 (3d ed. 1999) and Robert L. Stern, Appellate Practice 10
11 in the United States 306, 307-08 (2d ed. 1989)). With that background, movant FAIR explains

12 the relevance and value of its brief to this Court’s consideration of the important issues raised

13 here.

14

Movant respectfully submit that their proffered memorandum of law will bring several

15 relevant matters to the Court’s attention:

16 x
17
18

Because Article III standing is a precondition to this Court’s consideration of either the merits or injunctive relief, movant FAIR supplements the federal defendants’ discussion

19

of standing with respect to the reason why a class member’s spouse lacks a Social Security

20

Number (“SSN”). Amicus Memo. at 3-4. In particular, movant FAIR argues that this

21

Court should consider two distinct subclasses, based on whether the spouses without

22

SSNs could have petitioned for no-quota work-authorized immigrant visas (and SSNs)

23

under the “immediate relative” classification. 8 U.S.C. § 1151(b)(2)(A)(i). The subclasses

24 should be: (1) those with spouses who are illegal aliens ineligible for SSNs; and (2) those
25 with spouses who are other types of aliens who have chosen not to apply for an SSN.
26

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

3

Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 4 of 7 Page ID #:465

1 2 3x 4 5 6 7
x 8 9 10 11 12 x 13 14 15 16 17 18 19 20 x 21 22 23 24 25 26

Movant FAIR argues that the standing analysis differs for these two distinct subclasses. Id. For the first subclass, movant FAIR argues that such plaintiffs lack a legally cognizable interest, which standing requires for an injury in fact. Amicus Memo. at 4-6 For the second subclass, movant FAIR argues that the injuries are self-inflicted, which cannot support Article III standing. Amicus Memo. at 4. Movant FAIR argues that the Speech or Debate Clause shields defendant McConnell from civil litigation for actions undertaken to enact the challenged legislation. Amicus Memo. at 8-9. Movant FAIR also respectfully submits that the plaintiffs’ counsel lack a good-faith basis for including Senator McConnell as a defendant. Id. With respect to the Ex parte Young exception to sovereign immunity (namely, a suit in equity against an officer to enjoin ongoing ultra vires conduct), movant FAIR argues that the availability of an adequate alternate remedy bars equitable relief – analogously to the adequate-remedy bar of 5 U.S.C. § 704 – and that, in any event, injunctive relief is discretionary in suits against the government; further, movant argues that the selfinflicted nature of an injury defeats the irreparable harm required for an injunction, even when it does not defeat Article III standing. Amicus Memo. at 6-7, 8. Movant FAIR argues that the remedy for equal-protection violations can “level up” the treatment for the disfavored class or “level down” the treatment of the favored class (that is, terminate payments to everyone), which this Court would need to consider before issuing equitable relief that requires paying unappropriated funds from the Treasury. Amicus Memo. at 7-8.

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

4

Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 5 of 7 Page ID #:466

x 1 2

On the merits, movant FAIR supplements the federal defendants’ arguments that the rational-basis test applies here, Amicus Memo. at 10-12, and that the challenged

3

legislation satisfies the rational-basis test. Amicus Memo. at 12-13.

4 These issues all are relevant to this Court’s decision on the federal defendants’ motion to dismiss,

5 and movant FAIR respectfully submits that its amicus memorandum will aid the Court.
6 With respect to the jurisdictional issues, this Court has an obligation to consider them sua
7 sponte, even if not raised by the parties. Demore v. Kim, 538 U.S. 510, 516 (2003). For that
8 reason, jurisdictional issues are an exception to courts’ general hesitation to consider issues raised
9 10 only by an amicus. Kamen v. Kemper Fin. Servs., 500 U.S. 90, 97 n.4 (1991). But even the non-
11 jurisdictional issues raised by an amicus can aid the court, either by helping the court decide the

12 case or by highlighting issues that the court does not decide because not raised by a party: “We

13 therefore leave for another day the challenging questions raised by [the amicus].” United States

14 v. Hunter, 786 F.3d 1006, 1008 (D.C. Cir. 2015); Physicians Comm. for Responsible Med. v.

15 EPA, 292 F.App’x 543, 545 n.1 (9th Cir. 2008) (declining to reach issue raised by amicus).
16 Consequently, even the issues that movant raises that the Court need not consider will aid the
17
Court in clarifying what it did not consider. 18

19

The timing of FAIR’s motion – filed after the parties’ briefs – does not preclude this Court

20 from considering the issues that FAIR raises. To the extent that the Court wants the parties’ views

21 on these issues, the Court could request the parties to file supplemental responses. Indeed, the

22 model followed by California’s state courts is to have amicus briefs follow the parties’ briefing,
23 CAL. R. CT. 8.200(c)(1), with an opportunity for the parties to respond. Id. 8.200(c)(6). In
24 addition, with respect to including Senator McConnell as a defendant, despite the Speech or
25 Debate Clause, U.S. CONST., art. I, § 6, cl. 1, movant respectfully submits that the Court should
26

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

5

Case 8:20-cv-00858-SVW-JEM Document 37 Filed 06/29/20 Page 6 of 7 Page ID #:467

order the plaintiffs to explain how suing Senator McConnell is “warranted by existing law or by 1 2 a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing

3 new law.” FED. R. CIV. P. 11(b)(2). Political plaintiffs or counsel should not have leave to use

4 the Article III process to harass members of Congress.

5

CONCLUSION

6

For the foregoing reasons, movant respectfully requests that this motion for leave to file

7 the accompanying memorandum of law as amicus curiae be granted.

8 Dated: June 29, 2020
9

Respectfully submitted,

10

/s/ Lawrence J. Joseph

11

Lawrence J. Joseph (SBN 154908)

12

Law Office of Lawrence J. Joseph

1250 Connecticut Ave, NW, Suite 700-1A

13

Washington, DC 20036

Tel: 202-355-9452

14

Fax: 202-318-2254

15

Email: ljoseph@larryjoseph.com

16

Counsel for Movant

17

18

19

20

21

22

23

24

25

26

MOTION FOR LEAVE TO FILE OF FEDERATION FOR

AMERICAN IMMIGRATION REFORM, No. 8:20-cv-00858-SVW-JEM

6

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CERTIFICATE OF SERVICE 1

2

I hereby certify that on this 29th day of June 2020, I electronically filed the foregoing

3 motion for leave to file together with the accompanying amicus curiae brief, with the Clerk of

4 the Court for the United States District Court for the Central District of California by using the

5 CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the
6 CM/ECF system. Notice of this filing will be sent by mail to anyone unable to accept electronic
7 filing as indicated on the Notice of Electronic filing. Parties may access this filing through the
8 Court’s CM/ECF System.
9

10

11

/s/ Lawrence J. Joseph 12
Lawrence J. Joseph (SBN 154908)

13

Law Office of Lawrence J. Joseph

14

1250 Connecticut Ave, NW, Suite 700-1A

Washington, DC 20036

15

Tel: 202-355-9452

16

Fax: 202-318-2254

Email: ljoseph@larryjoseph.com

17 Counsel for Movant
18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE, No. 8:20-cv-00858-SVW-JEM

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Case 8:20-cv-00858-SVW-JEM Document 37-1 Filed 06/29/20 Page 1 of 2 Page ID #:469

1 Lawrence J. Joseph (SBN 154908) 2 Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A 3 Washington, DC 20036
Tel: 202-355-9452 4 Fax: 202-318-2254
Email: ljoseph@larryjoseph.com 5
6 Counsel for Federation for American Immigration Reform

7

8

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

SOUTHERN DIVISION

10

No. 8:20-cv-00858-SVW-JEM

11 JANE DOE, et al.,

12

Plaintiff,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

Movant Federation for American Immigration Reform’s Notice of Interested Parties

Hearing on Motion to Dismiss

Hearing Date:

July 13, 2020

Time:

1:30 p.m.

Courtroom:

10A

Location:

350 W. 1st Street

Los Angeles, CA 90012

16 Hon. Stephen V. Wilson
17

18

Movant and proposed amici curiae Federation for American Immigration Reform has no

19 parent corporation or outstanding stock within the ambit of FED. R. CIV. P. 7.1.
20
The undersigned, counsel of record for movant and proposed amicus curiae Federation 21

22 for American Immigration Reform, certifies that the following listed party (or parties) may have

23 a pecuniary interest in the outcome of this case. These representations are made to enable the

24 Court to evaluate possible disqualification or recusal:

25

26

NOTICE OF INTERESTED PARTIES, No. 8:20-cv-00858-SVW-JEM

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Case 8:20-cv-00858-SVW-JEM Document 37-1 Filed 06/29/20 Page 2 of 2 Page ID #:470

1

x Plaintiffs Jane Doe and John Doe and all others similarly situated (i.e., those excluded

2

from receiving payment under 26 U.S.C. § 6428 because they file taxes jointly with a

3

spouse who lacks a Social Security Number).

4

x All congressionally intended beneficiaries of 26 U.S.C. § 6428, for whom payments

5

might need to cease to equalize treatment vis-à-vis plaintiffs if plaintiffs prevail.

6 x United States of America.
7 Dated: June 29, 2020
8

Respectfully submitted,

9

/s/ Lawrence J. Joseph

10

Lawrence J. Joseph (SBN 154908)

11

Law Office of Lawrence J. Joseph

1250 Connecticut Ave, NW, Suite 700-1A

12

Washington, DC 20036

Tel: 202-355-9452

13

Fax: 202-318-2254

14

Email: ljoseph@larryjoseph.com

15

Counsel for Amicus Curiae

16

17

18

19

20

21

22

23

24

25

26

NOTICE OF INTERESTED PARTIES, No. 8:20-cv-00858-SVW-JEM

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Case 8:20-cv-00858-SVW-JEM Document 37-2 Filed 06/29/20 Page 1 of 2 Page ID #:471

1 Lawrence J. Joseph (SBN 154908) 2 Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A 3 Washington, DC 20036
Tel: 202-355-9452 4 Fax: 202-318-2254
Email: ljoseph@larryjoseph.com 5
6 Counsel for Federation for American Immigration Reform

7

8

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

SOUTHERN DIVISION

10

No. 8:20-cv-00858-SVW-JEM

11 JANE DOE, et al.,

12

Plaintiff,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

Proposed Order

Hearing on Motion to Dismiss

Hearing Date:

July 13, 2020

Time:

1:30 p.m.

Courtroom:

10A

Location:

350 W. 1st Street

Los Angeles, CA 90012

16

Hon. Stephen V. Wilson

17

18 On considering the Federation for American Immigration Reform’s motion for leave to
19 file its amicus curiae brief, the parties’ positions on filing the brief, and the entire record herein,
20
21 it is hereby

22

ORDERED that the motion is GRANTED; and it is

23

FURTHER ORDERED that the Clerk is ordered to file the amicus curiae brief that

24 accompanied the motion on the docket;

25

SO ORDERED.

26

PROPOSED ORDER, No. 8:20-cv-00858-SVW-JEM

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Dated: __________________________ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

U.S. DISTRICT JUDGE

PROPOSED ORDER, No. 8:20-cv-00858-SVW-JEM

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Case 8:20-cv-00858-SVW-JEM Document 37-3 Filed 06/29/20 Page 1 of 18 Page ID #:473

1 Lawrence J. Joseph (SBN 154908) 2 Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A 3 Washington, DC 20036
Tel: 202-355-9452 4 Fax: 202-318-2254
Email: ljoseph@larryjoseph.com 5
6 Counsel for Federation for American Immigration Reform

7

8

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

SOUTHERN DIVISION

10

No. 8:20-cv-00858-SVW-JEM

11 JANE DOE, et al.,

12

Plaintiff,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

16

17

18

Amicus Curiae Federation for American Immigration Reform’s Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss

Hearing on Motion to Dismiss

Hearing Date:

July 13, 2020

Time:

1:30 p.m.

Courtroom:

10A

Location:

350 W. 1st Street

Los Angeles, CA 90012

Hon. Stephen V. Wilson

19

20

21

22

23

24

25

26

Case 8:20-cv-00858-SVW-JEM Document 37-3 Filed 06/29/20 Page 2 of 18 Page ID #:474

TABLE OF CONTENTS 1 2 Table of Contents........................................................................................................................... i 3 Table of Authorities ......................................................................................................................ii 4 Memorandum of Points and Authorities....................................................................................... 1 5 Identity and Interest of Amicus Curiae ......................................................................................... 1

6 Statement of Facts......................................................................................................................... 1

7 Argument ...................................................................................................................................... 2

8 I. This Court lacks jurisdiction over Plaintiffs’ claims. ............................................................ 2

9

A. Plaintiffs lack standing. .................................................................................................. 3

10

1. Class members who are not illegal aliens suffer self-inflicted injuries,

11

which do not support standing. ............................................................................... 4

12

2. Class members who are illegal aliens suffer self-inflicted injuries, which do not

support standing. ..................................................................................................... 4

13 B. Plaintiffs’ claims are not ripe. ........................................................................................ 6

14 C. Sovereign immunity bars this suit. ................................................................................. 6
15 D. Plaintiffs cannot bring an officer suits under Ex parte Young........................................ 6
16
E. With respect to Senator McConnell, the Speech or Debate Clause bars this suit. ......... 8 17

II. Plaintiffs cannot state a claim under either the CARES Act or the Constiution. .................. 9 18

A. The Government has not interfered with Plaintiffs’ right to marry................................ 9 19

20

B. The rational-basis test applies to discrimination based on work-authorization or illegal-alien status. ........................................................................................................ 10

21 C. The CARES Act satisfies the rational-basis test. ......................................................... 12
22 Conclusion .................................................................................................................................. 13
23

24

25

26

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TABLE OF AUTHORITIES 1

2

CASES

3 Beasley v. Tex. & P. R. Co., 191 U.S. 492 (1903).......................................................................................................... 8

4 Bender v. Williamsport Area Sch. Dist.,

5

475 U.S. 534 (1986).......................................................................................................... 2

Burford v. Sun Oil Co.,

6

319 U.S. 315 (1943).......................................................................................................... 8

7 Chateaubriand v. Gaspard, 97 F.3d 1218 (9th Cir. 1996) ............................................................................................ 9
8 Clapper v. Amnesty Int’l USA,

9

568 U.S. 398 (2013).......................................................................................................... 4

Davis v. Mineta,

10

302 F.3d 1104 (10th Cir. 2002) ........................................................................................ 7

11 DeCanas v. Bica,

424 U.S. 351 (1976)........................................................................................................ 11 12
Demore v. Kim,

13

538 U.S. 510, 516 (2003).................................................................................................. 2

14 Dep’t of Homeland Sec. v. Regents of the Univ. of California, Nos. 18-587, 18-588, 18-589, 2020 U.S. LEXIS 3254 (June 18, 2020)....................12-13

15 Diamond v. Charles,

16

476 U.S. 54 (1986)............................................................................................................ 5

Dombrowski v. Eastland,

17

387 U.S. 82 (1967)............................................................................................................ 9

18 Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975).......................................................................................................... 8

19 Ex parte Young,

20

209 U.S. 123 (1908).......................................................................................................6-7

F.C.C. v. Beach Communications, Inc.,

21

508 U.S. 307 (1993)...................................................................................................12-13

22 Gonzalez-Cuevas v. INS,

515 F.2d 1222 (5th Cir. 1975) ........................................................................................ 11 23
Heckler v. Mathews,

24

465 U.S. 728 (1984).......................................................................................................7-8

25 Hernandez v. Mesa, 137 S.Ct. 2003 (2017) ....................................................................................................... 2
26

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Howard v. Office of the Chief Admin. Officer,

1

720 F.3d 939 (D.C. Cir. 2013) .......................................................................................... 9

2 INS v. Nat’l Ctr. for Immigrants’ Rights, Inc.,

502 U.S. 183 (1991)........................................................................................................ 11 3
Kamen v. Kemper Fin. Servs.,

4

500 U.S. 90 (1991)............................................................................................................ 2

5 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).......................................................................................................... 2

6 Korab v. Fink,

7

797 F.3d 572 (9th Cir. 2014) .......................................................................................... 11

Land v. Dollar,

8

330 U.S. 731 (1947).......................................................................................................... 5

9 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)...................................................................................................12-13
10 Lujan v. Defenders of Wildlife,

11

504 U.S. 555 (1992)...................................................................................................... 3, 5

McConnell v. FEC,

12

540 U.S. 93 (2003).........................................................................................................5-6

13 Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981)........................................................................................................ 12 14
Monsanto Co. v. Geertson Seed Farms,

15

561 U.S. 139 (2010).......................................................................................................... 7

16 Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010) ...................................................................................10-11

17 Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co.,

18

290 F.3d 578 (3d Cir. 2002).............................................................................................. 7

Pennsylvania v. New Jersey,

19

426 U.S. 660 (1976).......................................................................................................... 4

20 Pers. Adm’r v. Feeney, 442 U.S. 256 (1979)........................................................................................................ 11
21 Plyler v. Doe,

22

457 U.S. 202 (1982)........................................................................................................ 11

Port Angeles W. R. Co. v. Clallam Cty.,

23

44 F.2d 28 (9th Cir. 1931) ................................................................................................ 8

24 Second City Music, Inc. v. City of Chicago,

333 F.3d 846 (7th Cir. 2003) ............................................................................................ 7 25
Supreme Court of Virginia v. Consumers Union of U.S., Inc.,

26

446 U.S. 719 (1980).......................................................................................................... 9

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Texas v. United States,

1

523 U.S. 296 (1998).......................................................................................................... 6

2 United States v. Lee,

106 U.S. 196 (1882).......................................................................................................... 6 3
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,

4

454 U.S. 464 (1982).......................................................................................................... 3

5 Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000).......................................................................................................5-6

6 Weinberger v. Romero-Barcelo,

7

456 U.S. 305 (1982).......................................................................................................... 8

Youngberg v. Romeo,

8

457 U.S. 307 (1982).......................................................................................................6-7

9

STATUTES

10 U.S. CONST., art. I, § 6, cl. 1 ......................................................................................................8-9

11 U.S. CONST. art. III ................................................................................................................3, 5-7

U.S. CONST. art. III, § 2 ................................................................................................................ 3 12
Administrative Procedure Act,

13

5 U.S.C. §§551-706 .......................................................................................................6-7

14 5 U.S.C. § 703............................................................................................................................... 6 5 U.S.C. § 704............................................................................................................................... 6
15 8 U.S.C. § 1151(b)(2)(A)(i) .......................................................................................................... 4
16 8 U.S.C. § 1611(a) ........................................................................................................................ 5

17 8 U.S.C. § 1611(c)(2).................................................................................................................... 4

18 8 U.S.C. § 1614(b) ........................................................................................................................ 5
26 U.S.C. § 6428....................................................................................................................1, 3-4 19
26 U.S.C. § 6428(c) ...................................................................................................................... 2
20 26 U.S.C. § 6428(d)(1) ................................................................................................................. 2

21 26 U.S.C. § 6428(g) ...................................................................................................................... 1

22 26 U.S.C. § 6428(g)(3) ................................................................................................................. 2

26 U.S.C. § 7422........................................................................................................................... 6 23

Coronavirus Aid, Relief, and Economic Security Act,

24

PUB. L. NO. 116-136, § 2201(a), 134 Stat. 281 (2020) .................................... 1, 4-5, 8-13

25

RULES AND REGULATIONS

26 FED. R. CIV. P. 11(b)(2) .................................................................................................................. 9

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MEMORANDUM OF POINTS AND AUTHORITIES 1

2

Individuals whose spouses lack Social Security Numbers (collectively, “Plaintiffs”) have

3 sued various federal officials and offices (collectively, the “Government”) over the exclusion of

4 married couples filing joint tax returns from the stimulus payments of the Coronavirus Aid,

5 Relief, and Economic Security Act, PUB. L. NO. 116-136, § 2201(a), 134 Stat. 281, __ (2020)
6 (“CARES Act”), as codified at 26 U.S.C. § 6428.
7 IDENTITY AND INTEREST OF AMICUS CURIAE
8 Amicus curiae Federation for American Immigration Reform (“FAIR”) is a nonprofit
9 organization incorporated in the District of Columbia and classified as an educational charity
10 under I.R.C. § 501(c)(3). FAIR is American’s largest and oldest public interest group advocating
11
12 for the control of illegal immigration and the reduction in legal migration to levels more
13 consistent with the national interest and sound public policy. FAIR has members in all fifty states,

14 and nearly one million members in total.

15

STATUTORY BACKGROUND

16

As enacted by the CARES Act, Section 6428 establishes a payment program enacted as

17 an emergency macroeconomic stimulus immediately to boost consumer spending within the
18 United States. Congress chose a funding distribution method rationally related to that goal, in
19
that it used a government dataset — individual tax return filers for tax years 2018 and 2019 — 20

21 that included bank direct deposit information for tens of millions of recipients, thus obviating the

22 delay that requiring an application for the funds wherein the applicant designated deposit

23 information would necessarily entail. In doing so, Congress made the rational political decision

24 to direct funding to a subset of taxpayers — excluding (a) alien taxpayers without work 25 authorization (that is, without Social Security numbers, a precise proxy for aliens without work 26
authorization due to unlawful presence), 26 U.S.C. § 6428(g), (b) citizen or alien taxpayers with

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reported incomes above certain levels (who could be assumed to be more likely to save rather 1 2 than immediately spend the stimulus funds), 26 U.S.C. § 6428(c), (c) nonresident aliens (who are 3 exempt from taxation on foreign income and also much more likely to remit the stimulus funding

4 overseas), 26 U.S.C. § 6428(d)(1), and (d) dependents of taxpayers in these three classes,

5 §6428(d)(2). Congress rationally elected not to make an exception for so-called mixed status
6 families, with the narrow exception for alien taxpayers without a Social Security number who
7 were spouses of members of the Armed Forces. 26 U.S.C. § 6428(g)(3).
8 STATEMENT OF FACTS
9 For purposes of a motion to dismiss, this Court assumes the well-pleaded facts of the
10
11 complaint. Hernandez v. Mesa, 137 S.Ct. 2003, 2005 (2017), In the interest of brevity, FAIR
12 adopts the facts as stated by the Government. Gov’t Memo. at 4-5.

13

ARGUMENT

14 I. THIS COURT LACKS JURISDICTION OVER PLAINTIFFS’ CLAIMS.

15

Federal courts are courts of limited jurisdiction. Bender v. Williamsport Area Sch. Dist.,

16 475 U.S. 534, 541 (1986). “It is to be presumed that a cause lies outside this limited jurisdiction,
17 and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen
18 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, federal courts must
19 determine their jurisdiction, even if the parties concede jurisdiction: “Although the parties did
20
21 not raise the issue in their briefs on the merits, we must first consider whether we have jurisdiction

22 to decide this case.” Demore v. Kim, 538 U.S. 510, 516 (2003) (interior quotation marks omitted);

23 cf. Kamen v. Kemper Fin. Servs., 500 U.S. 90, 97 n.4 (1991) (jurisdictional arguments are an

24 exception to rule that courts ordinarily do not consider issues raised only by an amicus). Amicus 25 FAIR concurs with the Government that this Court lacks jurisdiction over Plaintiffs’ claims. See 26
Gov’t Memo. at 5-14. In this Section, FAIR not only expands on the issues that the Government

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raises but also raises additional jurisdictional defects in Plaintiffs’ case. 1

2

A. Plaintiffs lack standing.

3

Under Article III, a “bedrock requirement” is that federal courts are limited to hearing

4 cases and controversies. U.S. CONST. art. III, § 2; Valley Forge Christian College v. Americans

5 United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). As relevant here, courts

6 assess Article III standing under a tripartite test for an “injury in fact”: judicially cognizable
7 injury to the plaintiff, causation by the challenged conduct, and redressability by a court. Lujan
8 v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). Plaintiffs fail to meet their burden to show
9 that they have standing. Because Plaintiffs cannot meet that burden, moreover, this Court should
10
11 dismiss this action.

12

Although Plaintiffs seek to represent those who file their federal taxes with an individual

13 taxpayer identification numbers (“ITIN”) rather than a Social Security Number (“SSN”), the

14 standing analysis requires digging deeper to inquire into the reason that a given plaintiff or
15 member of the proposed plaintiff class files with an ITIN. For illegal aliens whose only option is
16 to use an ITIN, the plaintiffs have no right to enforce here. By contrast, for class members who
17 are not illegal aliens, the filing via an ITIN over an SSN is the class member’s choice (that is, the
18 class members could get an SSN). For this second subset of the plaintiff class, the injury that this
19
20 suit seeks to redress is, therefore, self-inflicted and does not form the basis for either Article III

21 jurisdiction or injunctive relief.

22

By way of background, § 6428 excludes taxpayers who are not work-authorized from

23 recovery payment eligibility. Amicus FAIR suspects that that immigration status is the only
24 reason many — or even all — Plaintiffs’ alien spouses lack an SSN. For any Plaintiffs’ spouses 25
who were not illegal aliens, those Plaintiffs could have petitioned for no-quota work-authorized 26

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immigrant visas (and SSNs) under the “immediate relative” classification. 8 U.S.C. § 1 2 1151(b)(2)(A)(i). For this reason, the proposed class consists of two subclasses: (a) illegal aliens 3 ineligible for SSNs; and (b) other aliens who have chosen not to apply for an SSN. The standing

4 analysis differs for these two subclasses, but neither has standing.

5

1. Class members who are not illegal aliens suffer self-inflicted injuries,

6

which do not support standing.

7

For Plaintiffs — and class members, if a class is certified — who could obtain an SSN,

8 but have chosen not to do so, the injury from the CARES Act’s criteria is a self-inflicted injury.

9 Such injuries cannot support standing. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013);

10 Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976). Accordingly, if any of Plaintiffs are in

11 this subclass, they should be dismissed.

12 2. Class members who are spouses of illegal aliens lack a legally protected

13

interest.

14

As indicated, amicus FAIR suspects that most Plaintiffs fall into this second subclass:

15 citizens married to illegal aliens who cannot obtain an SSN because they are not authorized to

16 work in the United States. Even these Plaintiffs could, of course, obtain CARES payments for

17 the U.S. citizen spouse and any U.S. citizen children by filing a “married, filing separately” tax
18
return, but Plaintiffs want more. 19

20

But these Plaintiffs simply have no right to more. Even if Plaintiffs’ characterization of §

21 6428 were presumed to be accurate, that section could not provide the basis for a claim for the

22 individual taxpayers or their proposed class members because that assistance would constitute a

23 “welfare” or “similar” federal public benefit “provided by appropriated funds of the United
24 States.” 8 U.S.C. § 1611(c)(2). Thus, none of these Plaintiffs or proposed class members would 25
be eligible for such assistance. Their alien spouses are not “qualified aliens” as defined by federal 26

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welfare reform law. See 8 U.S.C. §§ 1611(a) (restriction of federal public benefits to “qualified 1 2 aliens”), 1641(b) (definition of “qualified alien”). In sum, the CARES Act payments are not open

3 to illegal aliens based on federal immigration law.

4

An Article III “injury in fact” requires “an invasion of a legally protected interest which

5 is … concrete and particularized” to that plaintiff. Defenders of Wildlife, 504 U.S. at 560
6 (emphasis added). Plaintiffs have no such rights, so this is an instance where standing merges 7
with the merits. See Section II, infra (Plaintiffs fail to state a claim); Land v. Dollar, 330 U.S. 8
731, 735 (1947) (when jurisdiction and the merits “intertwine,” federal courts resolve the 9
jurisdictional and merits issues together). As the Supreme Court recently explained in rejecting 10
11 standing for qui tam relators based on their financial stake in a False Claims Act penalty, not all

12 interests qualify as legally protected interests:

13

There is no doubt, of course, that as to this portion of the recovery —

the bounty he will receive if the suit is successful — a qui tam relator

14

has a concrete private interest in the outcome of the suit. But the

15

same might be said of someone who has placed a wager upon the

outcome. An interest unrelated to injury in fact is insufficient to give

16

a plaintiff standing. The interest must consist of obtaining

compensation for, or preventing, the violation of a legally protected

17

right. A qui tam relator has suffered no such invasion[.]

18 Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-73 (2000) (emphasis

19 added, interior quotation marks, citations, and alterations omitted); accord McConnell v. FEC,
20 540 U.S. 93, 226-27 (2003). Thus, not all pecuniary losses necessarily qualify as an injury in
21 fact. The same is true with Plaintiffs’ alleged interest.
22 “[Article] III standing requires an injury with a nexus to the substantive character of the
23 24 statute or regulation at issue.” Diamond v. Charles, 476 U.S. 54, 70 (1986); cf. Stevens, 529 U.S.
25 at 772-73 (claimed interest must qualify as a “legally protected right”). As explained in Section

26 II, infra, neither the CARES Act nor the Constitution provides Plaintiffs a legally protected

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interest in payments to families with illegal-alien spouses.3 1

2

B. Plaintiffs’ claims are not ripe.

3

As the Government explains, Plaintiffs’ claims are not ripe. Gov’t Memo. at 9-11. “A

4 claim is not ripe for adjudication if it rests upon contingent future events that may not occur as

5 anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998)
6 (internal quotations and citations omitted). Here, it is uncertain whether Plaintiffs will be entitled
7 to a CARES payment (for example, their income might go up, their immigration or Armed Forces
8 status might change).
9 C. Sovereign immunity bars this suit.
10 As the Government explains, Plaintiffs’ tax-refund remedy under 26 U.S.C. § 7422
11
12 provides not only an adequate remedy but also the exclusive remedy for Plaintiffs’ injuries. Gov’t

13 Memo. at 6-8, 11-14. That puts this action outside the United States’ waiver of sovereign

14 immunity. Id. at 11-12. Specifically, the status quo does not constitute “final agency action,” but

15 even if it did, Plaintiffs would have an “adequate remedy in a court.” See 5 U.S.C. § 704. For

16 either reason — lack of finality or availability of an alternate remedy — the injuries raised here

17 must proceed under the special statutory review in the tax code, see 5 U.S.C. § 703, not the
18
general action for review under the Administrative Procedure Act (“APA”). Id. 19

20

D. Plaintiffs cannot bring an officer suit under Ex parte Young.

21

By naming federal officers, Plaintiffs seek to evade sovereign immunity by enjoining a

22 violation of federal law. See, e.g., United States v. Lee, 106 U.S. 196, 220-21 (1882) (property);

23 Ex parte Young, 209 U.S. 123, 149 (1908) (property); Youngberg v. Romeo, 457 U.S. 307, 316

24

3
25

Although this requirement is analogous to the prudential zone-of-interests test, Stevens

and McConnell make clear that the need for a legally protected interest is an element of the

26 threshold inquiry under Article III of the Constitution, not a merely prudential inquiry.

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(1982) (liberty). But — like the APA and its waiver of sovereign immunity — equity requires 1 2 the lack of an adequate alternate remedy, which restricts Plaintiffs’ equitable claims for the same 3 reason that it bars their APA claims. See Section I.C, supra. Three other issues also bar the relief

4 that Plaintiffs seek in equity.

5

First, the other half of the core entitlement to equitable relief is irreparable harm. As

6 explained, some of the alleged injuries may be self-inflicted. See Sections I.A.1-I.A.2, supra.
7 Even injuries that can qualify as cognizable under Article III can nonetheless fail to qualify under
8 the higher bar for irreparable harm. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149-
9
50, 162 (2010). Plaintiffs’ injuries result from their own choices, such as not getting an SSN or 10

11 filing jointly. “[S]elf-inflicted wounds are not irreparable injury.” Second City Music, Inc. v. City

12 of Chicago, 333 F.3d 846, 850 (7th Cir. 2003); Novartis Consumer Health, Inc. v. Johnson &

13 Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002) (“injury … may be

14 discounted by the fact that [a party] brought that injury upon itself”); Davis v. Mineta, 302 F.3d
15 1104, 1116 (10th Cir. 2002). To the extent Plaintiffs’ allegedly irreparable harm is self-inflicted,
16 this Court should not issue relief to Plaintiffs.
17 Second, the Ex parte Young exception to sovereign immunity does not allow the Court to
18
19 order the Government to make payments from the Treasury that Congress has not appropriated
20 or authorized. Under the circumstances, then, this Court’s injunctive relief would need to “level

21 down” the allegedly unequal treatment if Plaintiffs prevailed:

22

[W]hen the ‘right invoked is that to equal treatment,’ the appropriate

remedy is a mandate of equal treatment, a result that can be

23

accomplished by withdrawal of benefits from the favored class as

24

well as by extension of benefits to the excluded class.

25

26

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Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (citations and footnotes omitted, emphasis in 1 2 original). In other words, Plaintiffs cannot get CARES payments, but they potentially can stop

3 citizens, lawful residents, and other work-authorized aliens from getting CARES payments.

4

Third, the CARES Act seeks to stimulate the economy in a national emergency. This

5 Court should hesitate before enjoining the payment of benefits that Congress found necessary to
6 help address that emergency. Thus, even if Plaintiffs could establish not only this Court’s
7 jurisdiction but also the merits of Plaintiffs’ claims, that would not necessarily require injunctive
8 relief: “a federal judge sitting as chancellor is not mechanically obligated to grant an injunction
9
for every violation of law.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982); cf. 10
11 Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943) (“It is in the public interest that federal courts

12 of equity should exercise their discretionary power with proper regard for the rightful

13 independence of … governments in carrying out their domestic policy.”). Where Plaintiffs have

14 a later action for a tax refund, their equitable cause of action could be “dismissed for want of

15 equity without prejudice to an action at law.” Beasley v. Tex. & P. R. Co., 191 U.S. 492, 494

16 (1903). Port Angeles W. R. Co. v. Clallam Cty., 44 F.2d 28, 31 (9th Cir. 1931). That would leave
17
Plaintiffs free to request the favorable treatment that they seek. 18

19

While amicus FAIR respectfully submits that Plaintiffs lack a legally protected interest

20 and bring meritless claims, this Court should dismiss an equitable action even if the Court views

21 its jurisdiction and the merits differently.

22

E. With respect to Senator McConnell, the Speech or Debate Clause bars this

suit. 23

24

The Speech or Debate Clause, U.S. CONST., art. I, § 6, cl. 1, provides immunity for

25 Congress and its Members for any claims predicated on legislative activities. See Eastland v.

26 U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975). This immunity extends to all civil actions.

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Id. at 503. “[T]he Speech or Debate Clause immunizes Congressmen from suits for either 1 2 prospective relief or damages.” Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 3 U.S. 719, 731 (1980); accord Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir. 1996).

4 Where it applies, the Clause protects legislators “not only from the consequences of litigation’s

5 results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S.
6 82, 85 (1967). Accordingly, “[t]he Speech or Debate Clause operates as a jurisdictional bar” to 7
this type of action. Howard v. Office of the Chief Admin. Officer, 720 F.3d 939, 941 (D.C. Cir. 8
2013) (interior quotation marks omitted). 9
While it has become common under the Obama and Trump administrations for plaintiffs 10
11 to name Presidents as defendants for claims that a federal court lacks jurisdiction to press against

12 the President, Plaintiffs here can cite no such trend with respect to Senator McConnell, who was

13 merely one sponsor of the challenged legislation. Amicus FAIR respectfully submits that this

14 Court should not only dismiss Senator McConnell as a defendant but also ask Plaintiffs’ counsel

15 to explain why including Senator McConnell as a defendant is “warranted by existing law or by
16 a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing
17 new law.” FED. R. CIV. P. 11(b)(2).
18

19 II.

PLAINTIFFS CANNOT STATE A CLAIM UNDER EITHER THE CARES ACT OR THE CONSTIUTION.

20 If this Court has jurisdiction, the Court should dismiss Plaintiffs’ claims for failure to
21 state a claim.
22 A. The Government has not interfered with Plaintiffs’ right to marry.
23
Nothing in the CARES Act impinges on Plaintiffs’ marriages. See Gov’t Memo. at 1524

25 18. Under the circumstances, Plaintiffs’ invocation of the heightened scrutiny afforded to state

26 or federal marriage restrictions is misplaced.

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B. The rational-basis test applies to discrimination based on work-

1

authorization or illegal-alien status.

2

Amicus FAIR agrees with the Government that the SSN-ITIN divide is a proxy for work

3 status, not race or alienage. See Gov’t Br. at 19. Equal-protection and due-process analyses under
4 the Fifth Amendment involve sliding scales of scrutiny, based on whether a fundamental right or
5
protected class is implicated. Here, the discrimination — if there is any — would fall under the 6

7 rational-basis test because no fundamental right or protected class suffers from the CARES Act’s

8 focus on work-authorization status.

9

In Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010), the Ninth

10 Circuit rejected a claim that denying an application for adjustment of status “violates a
11 substantive due process right of Morales and his family to live together as a family, by effectively
12 excluding him from the United States for ten years.” 600 F.3d at 1091. While expressing
13 “sympathy … as it is always troubling when the impact of our immigration laws is to scatter a
14
15 family,” the Ninth Circuit held that “the right as asserted by Morales is one far removed from the
16 right of United States citizens to live together as a family.” Id. Specifically, denial of the benefit

17 “does not violate any of his or his family’s substantive rights protected by the Due Process

18 Clause.” Id. The Ninth Circuit explained:

19

To hold otherwise would create a barrier to removing an illegal alien

20

like Morales in any case where that alien has married a United States

citizen wife or fathered United States citizen children. Stated

21

another way, to indulge this theory is to hold that an illegal alien

with United States citizen family members cannot be removed,

22

regardless of the illegality of that alien’s entry into the United States

or conduct while within its borders. Such a remarkable proposition,

23

which would radically alter the status quo of our immigration law,

24

simply cannot be gained by judicial fiat from an intermediate court.

25

26

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Morales-Izquierdo, 600 F.3d at 1091. If the Constitution does not protect against separating these 1 2 families geographically, it cannot protect against a requirement to file tax returns separately.4

3

Assuming arguendo that the CARES Act discriminates based on a type of alienage, the

4 Act still triggers rational-basis review. Targeted in Plaintiffs’ view against those officially known

5 as “illegal aliens,” the CARES Act would “discriminate” based on illegality, not on race or
6 national origin: “Undocumented aliens cannot be treated as a suspect class because their presence 7
in this country in violation of federal law is not a ‘constitutional irrelevancy.” Plyler v. Doe, 457 8
U.S. 202, 223 (1982); cf. Korab v. Fink, 797 F.3d 572, 577-78 (9th Cir. 2014) (“federal statutes 9
regulating alien classifications are subject to the easier-to-satisfy rational-basis review”). Where, 10
11 as here, a law does not “discriminate[] against aliens lawfully admitted to this country,” it is
12 constitutional. DeCanas v. Bica, 424 U.S. 351, 358 n.6 (1976) (emphasis added); INS v. Nat’l

13 Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 196 n.11 (1991). To avoid the issue of illegality,
14 the defenders of illegal aliens often claim discrimination based on race or national origin, but
15 doing so has two problems.
16 First, equal-protection analysis applies only to an action taken “at least in part because
17 of, not merely in spite of, its adverse effects” on a protected class. Pers. Adm’r v. Feeney, 442
18 19 U.S. 256, 279 (1979) (emphasis added). That does not apply to disparate impacts like those
20 alleged here.5 Second, the disparate impact is not so great or so unexpected as to provide an

21

22 4

The fact that Plaintiffs’ “mixed-status” families may include citizen dependents with

SSNs is also constitutionally irrelevant. Gonzalez-Cuevas v. INS, 515 F.2d 1222 (5th Cir. 1975) 23 (having citizen children does not advantage alien parents, directly or vicariously, regarding

24 immigration laws).

5
25

In Feeney, the passed-over female civil servant alleged that Massachusetts’ veteran-

preference law for civil-service promotions and hiring constituted sex discrimination. Because

26 women then represented less than two percent of veterans, Feeney, 442 U.S. at 270 n.21, men were more than fifty times more likely to benefit from the state law challenged in Feeney.

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inference of animus: “because Latinos make up a large share of the unauthorized alien 1 2 population, one would expect them to make up an outsized share of recipients of any cross-cutting 3 immigration relief program.” Dep’t of Homeland Sec. v. Regents of the Univ. of California, Nos.

4 18-587, 18-588, 18-589, 2020 U.S. LEXIS 3254, at *47 (June 18, 2020) (Slip Op. at 27-28).

5 Neither illegality nor unauthorized work status are protected classes. Plaintiffs must, therefore,
6 proceed under the rational-basis test.
7 C. The CARES Act satisfies the rational-basis test.
8 Plaintiffs argue that the CARES Act’s ITIN focus is a proxy for alienage or race. Under
9 the rational-basis test, “a legislative choice is not subject to courtroom fact-finding and may be
10
11 based on rational speculation unsupported by evidence or empirical data,” F.C.C. v. Beach
12 Communications, Inc., 508 U.S. 307, 315 (1993).6 Consequently, rational-basis plaintiffs must

13 “negative every conceivable basis which might support [the challenged statute],” including those

14 bases on which the state plausibly may have acted. Lehnhausen v. Lake Shore Auto Parts Co.,
15 410 U.S. 356, 364 (1973) (internal quotation marks omitted, emphasis added). By contrast, 16
plaintiffs cannot prevail even by marshaling “impressive supporting evidence … [on] the 17
probable consequences of the [statute]” vis-à-vis the legislative purpose but must instead negate 18
“the theoretical connection” between the two. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 19
20 456, 463-64 (1981) (emphasis in original). Plaintiffs’ conjecture — while not evidence — would
21 not help Plaintiffs, even if it were evidence.

22

23 Nonetheless, Massachusetts did not discriminate because of sex when it acted because of another, 24 permissible criterion (veteran status). Id. at 272. Like Massachusetts, the CARES Act is based
on a permissible criterion (work authorization), which is not unlawful discrimination.

25
6

The rational-basis test applies because the due-process right here involves neither

26 fundamental rights nor protected classes. Id. at 313.

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Under Beach and Lehnhausen, it would be enough for the Government if Congress 1 2 plausibly may have acted based on work-authorization status. Under the Supreme Court’s recent 3 Regents decision, any disparate impact is entirely understandable and shows no animus. In short,

4 Plaintiffs cannot disprove the theoretical connection between Congress’s efforts to target

5 CARES Act payments and the CARES Act’s goals.

6

CONCLUSION

7 This Court should grant the Government’s motion to dismiss this action.

8 Dated: June 29, 2020
9

Respectfully submitted,

10

/s/ Lawrence J. Joseph

11

Lawrence J. Joseph (SBN 154908)

12

Law Office of Lawrence J. Joseph

1250 Connecticut Ave, NW, Suite 700-1A

13

Washington, DC 20036

Tel: 202-355-9452

14

Fax: 202-318-2254

15

Email: ljoseph@larryjoseph.com

16

Counsel for Amicus Curiae

17

18

19

20

21

22

23

24

25

26

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 Case 8:20-cv-00858-SVW-JEM Document 39 Filed 07/01/20 Page 1 of 3 Page ID #:493

Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962
Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940
* pro hac vice application pending
Counsel for Movant Attorneys United for a Secure America
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

Jane Doe, et al., Plaintiffs,
v. Donald J. Trump, et al.,
Defendants.

Case No. 8:20-cv-00858-SVW-JEM

Notice of Motion and Motion for Leave to File An Amicus Curiae Brief in Support of the Defendants’ Motion to Dismiss

Hearing Date: Time: Courtroom:

August 17, 2020 1:30 p.m. 10A

Case 8:20-cv-00858-SVW-JEM Document 39 Filed 07/01/20 Page 2 of 3 Page ID #:494

1

Please take notice that on August 17, 2020, at 1:30 p.m. in Courtroom 10A,

2 movant Attorneys United for a Secure America (AUSA) will move for an order

3 permitting it to participate as amicus curiae in support of the government’s mo-

4 tion to dismiss, which is currently scheduled to be heard on July 13, 2020.

5

This motion is made on the grounds that the Court has inherent authority

6 to allow the participation of an amicus curiae. AUSA’s participation as amicus

7 curiae would be helpful and desirable and will facilitate a more complete un-

8 derstanding of the issues before the Court. This motion is based on this notice

9 of motion and motion, the accompanying memorandum of points and author-

10 ities, the proposed amicus brief attached to this motion, all papers and plead-

11 ings on file in this action, and any further evidence or argument that may be

12 presented to the Court in connection with the motion.

13

The motion is made following the conference of counsel pursuant to Local

14 Rule 7-3, which occurred on June 22, 2020 (with counsel for the defendants)

15 and June 24, 2020 (with counsel for the plaintiffs). The plaintiffs and defendants

16 oppose the motion.

notice of motion for leave to file amicus curiae brief

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Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940 (phone) (512) 686-3941 (fax) jonathan@mitchell.law
* pro hac vice application pending
Dated: July 1, 2020

Respectfully submitted.
/s/ Lorraine Woodwark Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962 (phone) (202) 464-3590 (fax) lorrainewoodwark@gmail.com
Counsel for Amicus Curiae

notice of motion for leave to file amicus curiae brief

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Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962
Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940
* pro hac vice application pending
Counsel for Movant Attorneys United for a Secure America
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

Jane Doe, et al., Plaintiffs,
v. Donald J. Trump, et al.,
Defendants.

Case No. 8:20-cv-00858-SVW-JEM

Memorandum of Points and Authorities in Support of Motion for Leave to File An Amicus Curiae Brief in Support of the Defendants’ Motion to Dismiss

Hearing Date: Time: Courtroom:

August 17, 2020 1:30 p.m. 10A

Case 8:20-cv-00858-SVW-JEM Document 39-1 Filed 07/01/20 Page 2 of 5 Page ID #:497

1

Attorneys United for a Secure America (AUSA) respectfully moves for

2 leave to participate as amicus curiae in support of the defendants’ motion to

3 dismiss. The plaintiffs and defendants are opposed to this motion. A copy of

4 the proposed amicus brief is attached as an exhibit.

5

Attorneys United for a Secure America (AUSA) is a non-partisan affilia-

6 tion of attorneys dedicated to pursuing cases that serve the national interest

7 when it comes to immigration law. This means prioritizing national security,

8 defending our borders, safeguarding the public, protecting jobs, and valuing

9 America’s precious natural resources.

ARGUMENT

10

A “district court has broad discretion to appoint amici curiae.” Hoptowit v.

11 Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin

12 v. Conner, 515 U.S. 472 (1995). The “classic role” of amici curiae is “assisting

13 in a case of general public interest, supplementing the efforts of counsel, and

14 drawing the court’s attention to law that escaped consideration.” Miller-Wohl

15 Co., Inc. v. Commissioner of Labor and Industry, 694 F.2d 203, 204 (9th Cir.

16 1982).

17

The AUSA’s proposed amicus brief discusses numerous issues that are

18 undiscussed in the parties’ briefing. These include: the constitutional prob-

19 lems with the relief that the plaintiffs are requesting, the improper inclusion

20 of the President and Senator McConnell as named defendants in this lawsuit,

21 and the public interest in requiring the plaintiffs to disclose their identities and

22 preventing anonymous litigation from being used to shield criminal activities

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1 that should be exposed and punished. See, e.g., Missouri v. Harris, No. 2:14-cv-

2 00341-KJM- KJN, 2014 WL 2987284 at *2 (E.D. Cal. Jul. 1, 2014) (“An ami-

3 cus brief should normally be allowed when, among other considerations, the

4 amicus has unique information or perspective that can help the court beyond

5 the help that the lawyers for the parties are able to provide.” (internal citation

6 omitted)).

CONCLUSION

7

The AUSA’s motion for leave to participate as amicus curiae and submit a

8 brief in support of the defendants’ motion to dismiss should be granted.

Respectfully submitted.

Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940 (phone) (512) 686-3941 (fax) jonathan@mitchell.law

/s/ Lorraine Woodwark Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962 (phone) (202) 464-3590 (fax) lorrainewoodwark@gmail.com

* pro hac vice application pending

Dated: July 1, 2020

Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE
I certify that on July 1, 2020, I served this document through CM/ECF upon:

Heather L. Blaise Blaise & Nitschke, P.C. 123 North Wacker Drive, Suite 250 Chicago, Illinois 60606 312-448-6602 (phone) hblaise@blaisenitschkelaw.com
Lana B. Nassar Thomas J. Nitschke Elisabeth A. Gavin 123 North Wacker Drive, Suite 250 Chicago, Illinois 60606 (312) 448-6602 (phone) (312) 803-1940 (fax) lnassar@blaisenitschkelaw.com

Melissa Briggs John D. Ellis Federal Building, Suite 7211 300 North Los Angeles Street Los Angeles, California 90012 (213) 894-6165 (phone) (213) 894-2740 (phone) (213) 894-0115 (fax) melissa.briggs2@usdoj.gov john.ellis3@usdoj.gov
Counsel for the Defendants

Matthew J. Matern Joshua D. Boxer Matern Law Group 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, California 90266 (310) 531-1900 (phone) (310) 531-1901 (fax) mmatern@maternlawgroup.com jboxer@maternlawgroup.com

Guinevere M. Moore Moore Tax Law Group LLC 150 North Wacker Drive, Suite 1250 Chicago, Illinois 60606 (312) 549-9992 (phone) (312) 549-9991 (fax) guinevere.moore@ mooretaxlawgroup.com

brief in support of motion for leave to file amicus brief

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Vivian Khalaf Omar Abuzir Khalaf & Abuzir, LLC 20 North Clark, Suite 720 Chicago, Illinois 60602 (708)-233-1122 (phone) (708)-233-1161 (fax) vkhalaf@immigrationjd.com
/s/ Lorraine Woodwark Lorraine Woodwark Counsel for Amicus Curiae

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Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962
Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940
* pro hac vice application pending
Counsel for Amicus Curiae Attorneys United for a Secure America
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

Jane Doe, et al., Plaintiffs,
v. Donald J. Trump, et al.,
Defendants.

Case No. 8:20-cv-00858-SVW-JEM

Brief of the Attorneys United for a Secure America as Amicus Curiae in Support of the Defendants’ Motion to Dismiss

Hearing Date: Time: Courtroom:

July 13, 2020 1:30 p.m. 10A

Case 8:20-cv-00858-SVW-JEM Document 39-2 Filed 07/01/20 Page 2 of 13 Page ID #:502
TABLE OF CONTENTS Table of contents............................................................................................ i Table of authorities ....................................................................................... ii Statement of Interest ...................................................................................... 1 Argument ....................................................................................................... 1
I. The relief requested in the complaint is unconstitutional ....................1 II. Neither President Trump nor Senator McConnell is a pemissible
defendant ............................................................................................ 4 III.The plaintiffs should not be permitted to proceed anonymously .........5 IV.The plaintiffs’ constitutional claims are meritless .............................. 6 Conclusion .....................................................................................................7 Certificate of service...................................................................................... 8

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TABLE OF AUTHORITIES
Cases
al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004) ......................................................................5
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ....................................................................................3
Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036 (9th Cir. 2010) .................................................................... 6
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975).....................................................................................5
Franklin v. Massachusetts, 505 U.S. 788 (1992) ................................................................................... 4
Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870)..................................................................... 2
Massachusetts v. Mellon, 262 U.S. 447 (1923) ................................................................................... 2
Mississippi v. Johnson, 71 U.S. 475 (1866)...................................................................................... 4
New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020) ................................................................................3
Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) ................................................................................... 4
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc)...................................................... 2
Texas v. United States, 945 F.3d 355 (5th Cir. 2019) ...................................................................2–3
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ............................................................................... 4
W.N.J. v. Yocom, 257 F.3d 1171 (10th Cir. 2001) ....................................................................5
Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) .................................................................... 2
Statutes
8 U.S.C. § 1324a............................................................................................ 6 8 U.S.C. § 1325.............................................................................................. 6

brief of amicus curiae in support of defendants

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Other Authorities Jonathan F. Mitchell, The Writ-of-Erasure Fallacy,
104 Va. L. Rev. 933 (2018)......................................................................... 2 Rules Fed. R. Civ. P. 10(a) .......................................................................................5 Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 .............................................................................3

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1

INTEREST OF AMICUS CURIAE

2

Attorneys United for a Secure America (AUSA) is a non-partisan affilia-

3 tion of talented attorneys dedicated to pursuing cases that serve the national

4 interest when it comes to immigration law. This means prioritizing national

5 security, defending our borders, safeguarding the public, protecting jobs, and

6 valuing America’s precious natural resources.1

7

ARGUMENT

8

The complaint should be dismissed for all the reasons set forth in the

9 government’s thorough and well-reasoned brief. But the complaint suffers

10 from additional defects as well.

11 I. The Relief Requested In The Complaint Is

12

Unconstitutional

13

The prayer for relief asks this Court to issue an injunction “prohibiting

14 enforcement of the laws as written” and directing defendants to apply a differ-

15 ent statute that the Court would impose by judicial decree. See First Amended

16 Complaint (ECF No. 28) at 18–19. The plaintiffs also ask for “a declaratory

17 judgment striking from the CARES Act those provisions that are violative of

18 the protections afforded to Plaintiff and those similarly situated under the

19 United States Constitution, federal statutes, and those cases interpreting the

20 same under which this Court is bound under the principles of stare decisis.”

1. No counsel for a party authored any part of this brief. And no one other than the amicus or its members or counsel ﬁnanced the brief’s preparation or submission.

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1 Id. at 20. The courts have no power to issue declaratory or injunctive relief of

2 this sort.

3

A federal court has no ability or authority to “strike” language from a duly

4 enacted statute, even when the statutory language contradicts the Constitu-

5 tion. When a court declares a statute unconstitutional, the statute remains on

6 the books as originally written, and it continues to exist until it is amended or

7 repealed by the legislature that enacted it. See, e.g., Legal Tender Cases, 79 U.S.

8 (12 Wall.) 457 (1870) (overruling Hepburn v. Griswold, 75 U.S. (8 Wall.) 603

9 (1870), and enforcing the Legal Tender Act of 1862, without requiring reen-

10 actment of the Act after Hepburn had declared it unconstitutional); Winsness

11 v. Yocom, 433 F.3d 727, 728 (10th Cir. 2006) (McConnell, J.) (“There is no

12 procedure in American law for courts or other agencies of government—other

13 than the legislature itself—to purge from the statute books, laws that conflict

14 with the Constitution as interpreted by the courts.”). A court may enjoin de-

15 fendants who are enforcing a statute, but it has no authority to act on the stat-

16 ute itself. See Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) (“If a case for

17 preventive relief be presented, the court enjoins, in effect, not the execution

18 of the statute, but the acts of the official, the statute notwithstanding.”); Ok-

19 palobi v. Foster, 244 F.3d 405, 426 n.34 (5th Cir. 2001) (en banc) (“An injunc-

20 tion enjoins a defendant, not a statute.”). The judiciary does not wield a “writ

21 of erasure” that allows it to formally delete (or “strike”) statutory language

22 that it believes to be unconstitutional. See Jonathan F. Mitchell, The Writ-of-

23 Erasure Fallacy, 104 Va. L. Rev. 933 (2018); Texas v. United States, 945 F.3d

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1 355, 396 (5th Cir. 2019) (“The federal courts have no authority to erase a duly

2 enacted law from the statute books, [but can only] decline to enforce a statute

3 in a particular case or controversy.” (citation and internal quotation marks

4 omitted)).

5

The plaintiffs’ prayer for relief appears to have been influenced by com-

6 monly used rhetoric in the legal profession that implies that litigants “chal-

7 lenge” statutes, and that courts “strike down” statutes when pronouncing

8 them unconstitutional. See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. City

9 of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam) (“In the District Court,

10 petitioners challenged a New York City rule regarding the transport of fire-

11 arms.”); Citizens United v. Federal Election Commission, 558 U.S. 310, 346

12 (2010) (describing First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978),

13 as having “struck down” a state-law prohibition on corporate independent ex-

14 penditures related to referenda issues). But litigants are not “challenging” the

15 underlying statute when they sue to enforce their constitutional rights. They

16 are challenging the behavior of the defendants that they have sued—which

17 may or may not be authorized by the allegedly unconstitutional statute. And

18 they cannot obtain a remedy that “strikes down” or revises the statute; the

19 only relief that courts may offer is a judicial declaration of the plaintiffs’ rights

20 and an injunction to stop the defendants’ unlawful behavior.

21

The plaintiffs’ requested relief also violates the Appropriations Clause,

22 which provides that “no money shall be drawn from the treasury but in conse-

23 quence of an appropriation made by law.” U.S. Const. art. I, § 9, cl. 7. The

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1 plaintiffs are asking this Court to compel the defendants to draw money from

2 the Treasury in the absence of any congressional enactment authorizing those

3 expenditures. See First Amended Complaint (ECF No. 28) at 19. Courts can-

4 not issue remedies that compel federal officers to spend money that Congress

5 has never appropriated. See Office of Personnel Management v. Richmond, 496

6 U.S. 414, 425 (1990) (“Any exercise of a power granted by the Constitution to

7 one of the other branches of Government is limited by a valid reservation of

8 congressional control over funds in the Treasury.”).

9 II. Neither President Trump Nor Senator McConnell

10

Is A Permissible Defendant

11

In recent years it has become fashionable to include the President of the

12 United States as a named defendant in lawsuits challenging executive action,

13 and this is especially true in lawsuits challenging the Trump Administration’s

14 immigration policies. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).

15 This is improper, and the Court should remove the President’s name from the

16 caption. Lawsuits challenging the legality of executive action should be

17 brought against the President’s subordinates, and not against the President

18 himself. See Mississippi v. Johnson, 71 U.S. 475, 501 (1866) (“[T]his court has

19 no jurisdiction of a bill to enjoin the President in the performance of his official

20 duties; and that no such bill ought to be received by us.”); Franklin v. Massa-

21 chusetts, 505 U.S. 788, 802–03 (1992) (plurality opinion); id. at 825–29 (Scalia,

22 J., concurring); id. at 827 (“The principals in whom the executive and legisla-

23 tive powers are ultimately vested—viz., the President and the Congress (as

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1 opposed to their agents)—may not be ordered to perform particular executive

2 or legislative acts at the behest of the Judiciary.”); al-Marri v. Rumsfeld, 360

3 F.3d 707, 708 (7th Cir. 2004).

4

Senator McConnell should also be immediately dismissed from this law-

5 suit. There is no Article III case or controversy between the plaintiffs and Sen-

6 ator McConnell because Senator McConnell has no role in enforcing the

7 CARES Act. More importantly, the Speech or Debate Clause immunizes the

8 Senator from lawsuits over his legislative activities. See Eastland v. U.S. Ser-

9 vicemen’s Fund, 421 U.S. 491, 501 (1975).

10 III. The Plaintiffs Should Not Be Permitted To

11

Proceed Anonymously

12

The Federal Rules of Civil Procedure require plaintiffs to disclose their

13 names in the complaint, and they make no provision for anonymous litigation.

14 See Fed. R. Civ. P. 10(a); W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001)

15 (“The Rules provide no exception that allows parties to proceed anonymously

16 or under fictitious names such as initials.”). Because Rule 10(a) requires plain-

17 tiffs to disclose their names and makes no allowance for anonymous litigation,

18 a plaintiff may proceed under a pseudonym only when some higher source of

19 law—such as a federal statute, the Constitution, or a decision of the Ninth

20 Circuit—compels a departure from the Rule’s regime of disclosure.

21

The Ninth Circuit instructs courts to consider five factors when deciding

22 whether a litigant may proceed anonymously: (1) the severity of the threatened

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1 harm; (2) the reasonableness of the anonymous party’s fears; (3) the anony-

2 mous party’s vulnerability to such retaliation; (4) the prejudice to the oppos-

3 ing party; and (5) the public interest.” Doe v. Kamehameha Sch./Bernice Pauahi

4 Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010). The public interest in this

5 case overwhelmingly supports disclosure, especially if the plaintiffs are pro-

6 ceeding anonymously to conceal crimes committed by their spouses or the em-

7 ployers of those spouses.

8

Illegal entry into the United States is a federal crime. See 8 U.S.C. § 1325.

9 Employing an illegal alien is a federal crime as well. See 8 U.S.C. § 1324a. Of

10 course, not every illegal alien in the United States is guilty of a criminal border

11 crossing; some illegal aliens are here because they overstayed their visas. And

12 not every alien who lacks a social-security number was illegally employed. But

13 many individuals who lack social-security numbers are associated with crimi-

14 nal activities of this sort, and the public interest demands that these crimes be

15 exposed and punished. The plaintiffs should not be allowed to proceed anon-

16 ymously if they are seeking to conceal criminal activities committed by their

17 spouses or their employers.

18 IV. The Plaintiffs’ Constitutional Claims Are

19

Meritless

20

The constitutional claims in this case are beyond meritless. The claim that

21 the statute classifies on account of alienage is false. The statute classifies be-

22 tween those who have social-security numbers and those that don’t; it draws

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1 no distinction between citizens and aliens. And the claim that the statute vio-

2 lates the supposed constitutional “right to marry” is sophistry. The plaintiffs

3 are free to marry whomever they want, and their situation is no different from

4 an individual who lost out on a CARES Act credit because she married a high-

5 income earner. The Court should swiftly dispatch these constitutional claims.

6

CONCLUSION

7

The government’s motion to dismiss should be granted.

Respectfully submitted.

Jonathan F. Mitchell* Texas Bar No. 24075463 Mitchell Law PLLC 111 Congress Avenue, Suite 400 Austin, Texas 78701 (512) 686-3940 (phone) (512) 686-3941 (fax) jonathan@mitchell.law

/s/ Lorraine Woodwark Lorraine Woodwark California State Bar No. 205005 Woodwark Law Post Office Box 640 Goleta, California 93117 (202) 591-0962 (phone) (202) 464-3590 (fax) lorrainewoodwark@gmail.com

* pro hac vice application pending

Dated: July 1, 2020

Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE
I certify that on July 1, 2020, I served this document through CM/ECF upon:

Heather L. Blaise Blaise & Nitschke, P.C. 123 North Wacker Drive, Suite 250 Chicago, Illinois 60606 312-448-6602 (phone) hblaise@blaisenitschkelaw.com
Lana B. Nassar Thomas J. Nitschke Elisabeth A. Gavin 123 North Wacker Drive, Suite 250 Chicago, Illinois 60606 (312) 448-6602 (phone) (312) 803-1940 (fax) lnassar@blaisenitschkelaw.com

Melissa Briggs John D. Ellis Federal Building, Suite 7211 300 North Los Angeles Street Los Angeles, California 90012 (213) 894-6165 (phone) (213) 894-2740 (phone) (213) 894-0115 (fax) melissa.briggs2@usdoj.gov john.ellis3@usdoj.gov
Counsel for the Defendants

Matthew J. Matern Joshua D. Boxer Matern Law Group 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, California 90266 (310) 531-1900 (phone) (310) 531-1901 (fax) mmatern@maternlawgroup.com jboxer@maternlawgroup.com

Guinevere M. Moore Moore Tax Law Group LLC 150 North Wacker Drive, Suite 1250 Chicago, Illinois 60606 (312) 549-9992 (phone) (312) 549-9991 (fax) guinevere.moore@ mooretaxlawgroup.com

brief of amicus curiae in support of defendants

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Vivian Khalaf Omar Abuzir Khalaf & Abuzir, LLC 20 North Clark, Suite 720 Chicago, Illinois 60602 (708)-233-1122 (phone) (708)-233-1161 (fax) vkhalaf@immigrationjd.com
/s/ Lorraine Woodwark Lorraine Woodwark Counsel for Amicus Curiae

brief of amicus curiae in support of defendants

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 Sovereign Immunity 
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3ODLQWLIIVHHNVRQO\LQMXQFWLYHDQGGHFODUDWRU\UHOLHILQKHU)$& See 'NWDW³3ODLQWLIIV VHHNWKHHQWU\RIDWHPSRUDU\UHVWUDLQLQJRUGHUSUHOLPLQDU\DQGSHUPDQHQWLQMXQFWLRQDQG'HFODUDWRU\ 5HOLHI´³7KH6XSUHPH&RXUWKDVµORQJKHOGWKDWIHGHUDOFRXUWVPD\LQVRPHFLUFXPVWDQFHVJUDQW LQMXQFWLYHUHOLHIDJDLQVW¶IHGHUDORIILFLDOVYLRODWLQJIHGHUDOODZ´Sierra Club v. Trump)G WK&LUFLWLQJArmstrong v. Exceptional Child Ctr., Inc.6&Wsee also Corr. Servs. Corp. v. Malesko86³>,@QMXQFWLYHUHOLHIKDVORQJEHHQ UHFRJQL]HGDVWKHSURSHUPHDQVIRUSUHYHQWLQJHQWLWLHVIURPDFWLQJXQFRQVWLWXWLRQDOO\´3ODLQWLII¶V)$& QDPHVDQXPEHURIRIILFHUVRIWKHIHGHUDOJRYHUQPHQWLQFOXGLQJ7UHDVXU\6HFUHWDU\6WHYHQ0QXFKLQ ,56&RPPLVVLRQHU&KDUOHV5HWWLJ6HQDWRU0LWFK0F&RQQHOODQG3UHVLGHQW'RQDOG7UXPS'NW %HFDXVH3ODLQWLII¶VFODLPVIRULQMXQFWLYHDQGGHFODUDWRU\UHOLHIDULVHXQGHUWKH&RQVWLWXWLRQDQGDUH DVVHUWHGDJDLQVWDIHGHUDORIILFHUWKLV&RXUWKDVMXULVGLFWLRQ WRKHDUWKHPDQGWKH\DUHQRWEDUUHGE\ VRYHUHLJQLPPXQLW\ 

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 7KH&RXUWPDNHVWKLVREVHUYDWLRQZLWKRXWDGGUHVVLQJWKHTXHVWLRQRIZKLFKVSHFLILFIRUPRILQMXQFWLYHDQGGHFODUDWRU\
UHOLHIZRXOGEHDSSURSULDWHLQWKHHYHQW3ODLQWLIISUHYDLOVRQWKHPHULWVRIKHUFODLP  7RWKHH[WHQWWKDW6HQDWRU0F&RQQHOO¶VLQFOXVLRQLQWKLVODZVXLWLVSUHPLVHGRQKLVVSRQVRUVKLSRIWKH&$5(6$FWDQ\ FODLPVDUHEDUUHGE\OHJLVODWLYHLPPXQLW\Gravel v. United States86±  7KH*RYHUQPHQWGRHVQRWGLVSXWH3ODLQWLII¶VFODLPWKDWVXEMHFWPDWWHUMXULVGLFWLRQH[LVWVXQGHU86&'NW DW,WLVXQFOHDUZK\3ODLQWLIIKDVUHIHUHQFHGVXSSOHPHQWDOMXULVGLFWLRQDVZHOOJLYHQWKDWKHUFODLPVDSSHDUWRVROHO\DULVH
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DEDVLVIRUILQGLQJWKDWVRYHUHLJQLPPXQLW\GRHVQRWEDU3ODLQWLII¶VODZVXLWSee The Presbyterian Church (U.S.A.) v. United
States)GQWK&LU³7KLVFRXUWKDVSUHYLRXVO\KHOGWKDWWKHDPHQGPHQWWRZDLYHV VRYHUHLJQLPPXQLW\QRWRQO\IRUVXLWVEURXJKWXQGHULWVHOIEXWIRUFRQVWLWXWLRQDOFODLPVEURXJKWXQGHUWKHJHQHUDO
IHGHUDOTXHVWLRQMXULVGLFWLRQVWDWXWH86&´see also Navajo Nation v. Dep't of the Interior)G
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1RVXLWRUSURFHHGLQJVKDOOEHPDLQWDLQHGLQDQ\FRXUWIRUWKHUHFRYHU\RIDQ\LQWHUQDO UHYHQXHWD[DOOHJHGWRKDYHEHHQHUURQHRXVO\RULOOHJDOO\DVVHVVHGRUFROOHFWHGRURIDQ\ SHQDOW\FODLPHGWRKDYHEHHQFROOHFWHGZLWKRXWDXWKRULW\RURIDQ\VXPDOOHJHGWRKDYH EHHQH[FHVVLYHRULQDQ\PDQQHUZURQJIXOO\FROOHFWHGXQWLODFODLPIRUUHIXQGRUFUHGLW KDVEHHQGXO\ILOHGZLWKWKH6HFUHWDU\DFFRUGLQJWRWKHSURYLVLRQVRIODZLQWKDWUHJDUG DQGWKHUHJXODWLRQVRIWKH6HFUHWDU\HVWDEOLVKHGLQSXUVXDQFHWKHUHRI  Id. 3ODLQWLIILVQRWVHHNLQJ³WKHUHFRYHU\RIDQ\LQWHUQDOUHYHQXHWD[DOOHJHGWRKDYHEHHQHUURQHRXVO\RU LOOHJDOO\DVVHVVHGRUFROOHFWHGRURIDQ\SHQDOW\FODLPHGWRKDYHEHHQFROOHFWHGZLWKRXWDXWKRULW\RURI DQ\VXPDOOHJHGWRKDYHEHHQH[FHVVLYHRULQDQ\PDQQHUZURQJIXOO\FROOHFWHG´Id. 3ODLQWLIILVQRW VHHNLQJDUHIXQGRIDQ\NLQGVLPSO\LQMXQFWLYHDQGGHFODUDWRU\UHOLHIGHFODULQJWKH([FOXVLRQ3URYLVLRQ XQFRQVWLWXWLRQDODQGWKDWWKH&RXUWLQVWUXFWWKH,56WRDSSO\WKHSURYLVLRQLQDPDQQHUWKDW3ODLQWLII DUJXHVZRXOGEHFRQVWLWXWLRQDOSee 'NWDW± 

7KH*RYHUQPHQWDUJXHVWKDW3ODLQWLII¶VFRQVWLWXWLRQDOFODLPVDUHIRUHFORVHGE\United States v. Clintwood Elkhorn Min. Co.867KDWFDVHKHOGWKDWSHWLWLRQHUVZKRIDLOHGWRILOHD UHIXQGFODLPSXUVXDQWWRDZLWKLQWKHWKUHH\HDUDGPLQLVWUDWLYHWLPHOLPLWUHTXLUHGE\86& FRXOGQRWDVVHUWWKDWFODLPEH\RQGWKDWVWDWXWRU\SHULRGRQWKHWKHRU\WKDWWKHDVVHVVHGWD[ YLRODWHGWKH([SRUW&ODXVHRIWKH&RQVWLWXWLRQ Id. DW±%XWWKRVHSHWLWLRQHUVUDLVHGDFRQVWLWXWLRQDO DUJXPHQWLQRUGHUWRVHHNWKHUHIXQGRIWD[HVWKH\KDGSUHYLRXVO\SDLGRQFRDOH[SRUWVSXUVXDQWWRWKH UHOHYDQWVHFWLRQRIWKH7D[&RGHSee 86DW6LPLODUO\WKH1LQWK&LUFXLWFDVHWKH*RYHUQPHQW FLWHVDVDGGLWLRQDOVXSSRUWIRUWKLVWKHRU\RI3ODLQWLII¶VSURSHUUHPHG\RQO\DGGUHVVHGDIDLOXUHWRH[KDXVW WKHFODLPVSURFHVVDUWLFXODWHGLQDIRUFRQVWLWXWLRQDOFODLPVVHHNLQJDUHIXQGRIDSUHYLRXVO\
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 7KH*RYHUQPHQWFLWHVSarmiento v. United States)GG&LUZKLFKDGGUHVVHGDQ³DGYDQFHUHIXQG´WD[
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VDSSURDFKWR)LIWK$PHQGPHQW HTXDOSURWHFWLRQFODLPVKDVDOZD\VEHHQSUHFLVHO\WKHVDPHDVWRHTXDOSURWHFWLRQFODLPVXQGHUWKH )RXUWHHQWK$PHQGPHQW´see also United States v. Navarro)GWK&LU ³7HFKQLFDOO\WKH&RPPLVVLRQ
V*XLGHOLQHVDUHQRWJRYHUQHGE\WKH(TXDO3URWHFWLRQ&ODXVHRIWKH )RXUWHHQWK$PHQGPHQWZKLFKDSSOLHVRQO\WRWKHVWDWHVQRWWRWKHIHGHUDOJRYHUQPHQWRUIHGHUDO HQWLWLHV´ 
 First Amendment 
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 Due Process 
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$VWKH6XSUHPH&RXUWUHFRJQL]HGLQWindsor³&RQJUHVVLQHQDFWLQJGLVFUHWHVWDWXWHVFDQPDNH GHWHUPLQDWLRQVWKDWEHDURQPDULWDOULJKWVDQGSULYLOHJHV´86DW3UHWindsorObergefell 1LQWK&LUFXLWFDVHVFRQVLGHULQJWKHULJKWWRPDUU\LQWKHFRQWH[WRIJRYHUQPHQWEHQHILWVDQGDOLHQV ZKLOHDQLPSHUIHFWILWIRUWKHIDFWVRI3ODLQWLII¶VODZVXLWDOVRVXJJHVWWKDWRQO\DIHGHUDOVWDWXWHWKDW ³GLUHFWO\DQGVXEVWDQWLDOO\´LQWHUIHUHVZLWKWKHIXQGDPHQWDOULJKWWRPDUU\ZRXOGEHVXEMHFWWR KHLJKWHQHGVFUXWLQ\See Aleman v. Glickman)GWK&LUILQGLQJWKDW GLVWLQFWLRQLQHOLJLELOLW\IRUIRRGVWDPSVEDVHGRQGLYRUFHYHUVXVGHDWKRID86FLWL]HQVSRXVHGLGQRW ³LQWHUIHUHGLUHFWO\DQGVXEVWDQWLDOO\ZLWKWKHULJKWWRPDUU\´$OWKRXJKWKH([FOXVLRQ3URYLVLRQWUHDWV 3ODLQWLIIGLIIHUHQWO\WKDQVLPLODUO\VLWXDWHGLQGLYLGXDOVZKRKDYHFKRVHQWRPDUU\86FLWL]HQVRUQRQ FLWL]HQVZKRGRSRVVHVVD661WKHCHUCCCCCCCCCCCCCCCCCCCCCCCC  &RXUWFDQQRWVD\WKDWWKHDGGLWLRQDOEXUGHQ WKLVLPSRVHVRQ3ODLQWLIIVXEVWDQWLDOO\RUGLUHFWO\FXUWDLOVKHUIXQGDPHQWDOULJKWWRPDUU\ 

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 Case 8:20-cv-00858-SVW-JEM Document 50 Filed 07/13/20 Page 1 of 1 Page ID #:563

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Title

Jane Doe v. Donald J. Trump et al

Date July 13, 2020

Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz Deputy Clerk

Maria Bustillos Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Guinevere M. Moore Heather L. Blaise Lana Massar

John Ellis, AUSA Melissa Briggs, AUSA

Proceedings:

TELEPHONE HEARING re MOTION to Dismiss Case filed by Defendant [30]

Hearing held. The motion is denied. The Court orders further briefing, and sets the following schedule:
Government’s Initial Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 20, 2020 Plaintiff’s Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 27, 2020 Government’s Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 30, 2020
Further Telephonic Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . August 3, 2020 at 1:30 p.m.

CV-90 (06/04)

Initials of Preparer
CIVIL MINUTES - GENERAL

: 16 PMC
Page 1 of 1

 
 Case 8:20-cv-00858-SVW-JEM Document 57 Filed 07/27/20 Page 1 of 29 Page ID #:601

1 BLAISE & NITSCHKE, P.C.

2

HEATHER L. BLAISE, ESQ. (SBN 261619) 123 N. Wacker Drive, Suite 250

3 Chicago, IL 60606

4

Telephone: 312-448-6602 Email: hblaise@blaisenitschkelaw.com

5

6

Attorneys for Plaintiffs, JANE DOE and JOHN DOE, individually and

7 on behalf of others similarly situated

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11 JANE DOE and JOHN DOE, individually and on behalf of others similarly situated,
12

13

Plaintiffs,

14

v.

15

DONALD J. TRUMP, in his individual and official capacity as President of the

16

United States; MITCH MCCONNELL, in his individual and official capacity as a

17

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

18 individual and official capacity as the

Acting Secretary of the U.S. Department

19 of Treasury; CHARLES RETTIG, in his

individual and official capacity as U.S.

20 Commissioner of Internal Revenue; U.S.

21

DEPARTMENT OF THE TREASURY; the U.S. INTERNAL REVENUE

22

SERVICE; and the UNITED STATES OF AMERICA,

23

Defendants.

CASE NO: 8:20-cv-00858-SVW-JEM Assigned to the Hon. Stephen V. Wilson
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO JULY 13, 2020 ORDER (DKT. 50)

Hearing Date: August 3, 2020

Time:

1:30 p.m.

Location: Conducted telephonically

Action Filed: May 6, 2020

24 Plaintiffs JANE DOE and JOHN DOE hereby submit their response to The
25 United States of America’s brief in accordance with this Honorable Court’s order
26
dated July 13, 2020 (Dkt. 50). 27

28

- i -

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO JULY 13, 2020 ORDER (DKT. 50)

Case 8:20-cv-00858-SVW-JEM Document 57 Filed 07/27/20 Page 2 of 29 Page ID #:602

1 DATED: July 27, 2020

Respectfully submitted,

2

By: /s/ Heather L. Blaise

3

HEATHER L. BLAISE, ESQ. (SBN 261619)

4

123 N. Wacker Drive, Suite 250

5

Chicago, IL 60606

Telephone: 312-448-6602

6

Email: hblaise@blaisenitschkelaw.com

7

Attorney for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- ii -

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO JULY 13, 2020 ORDER (DKT. 50)

Case 8:20-cv-00858-SVW-JEM Document 57 Filed 07/27/20 Page 3 of 29 Page ID #:603

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS..............................................................................................iii
3 TABLE OF AUTHORITIES ........................................................................................iv 4 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO
5 JULY 13, 2020 ORDER (DKT. 50) ..............................................................................1

6 I. The CARES Act Impermissibly Inhibits Plaintiffs’ Fundamental Rights under

the First Amendment and the Fifth Amendment. ............................................. 1

7

A. The CARES Act’s Infringement on Plaintiffs’ Fundamental Right to Free

8

Speech Under the First Amendment Warrants Strict Scrutiny Review.........2

9

B. The CARES Act’s Infringement on Plaintiffs’ Fundamental Right to Due

10

Process under the Fifth Amendment Warrants Strict Scrutiny Review. ....... 7

C. The CARES Act’s Infringement on Plaintiffs’ Equal Protection of the Laws

11

under the Fifth Amendment Warrants Strict Scrutiny Review....................10

12 II. Even if the CARES Act’s Infringement on Plaintiffs’ Fundamental Right to

13

Equal Protection under the Fifth Amendment Warranted Rational Basis Review, there is no Rational Basis for the Exclusion Provision. ................... 13

14

A. Administrative Concerns Do Not Constitute a Valid Rational Basis for

15

Excluding Plaintiffs From Receipt of the Advance Payment or the CARES

16

Act Credit. .................................................................................................... 14

B. The Legal Fiction Created by I.R.C. § 6428(e) is not a “Reconciliation

17

Procedure.” ................................................................................................... 16

18

C. The Exclusionary Provision is a Merely Vehicle to Punish an Unpopular

19

Group............................................................................................................ 17

III. Plaintiffs are Entitled to an Injunction Now and Plaintiffs are Entitled to

20

Discovery. ....................................................................................................... 20

21

22

23

24

25

26

27

28

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PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO JULY 13, 2020 ORDER (DKT. 50)

Case 8:20-cv-00858-SVW-JEM Document 57 Filed 07/27/20 Page 4 of 29 Page ID #:604

1

TABLE OF AUTHORITIES

2 Cases

3

Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000).............................................21, 22 Alliance for Open Society International, Inc. v. United States Agency for

4 International Development, 651 F.3d 218 (2d Cir. 2011) ..................................... 5, 6

5

Allied Concrete and Supply Company v. Baker, 904 F.3d 1053 (9th Cir. 2018) ........ 22 Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) ............................... 7

6 Bernal v. Fainter, 467 U.S. 216 (1984) ....................................................................... 11

7

Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194 (1934) ..................................... 20 C.f. INS v. Chada, 462 U.S. 919 (1983) ......................................................................20

8 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985) .................... 10

9

Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 (1855)......................8 Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ..........................17, 18, 20

10 Eisenstadt v. Baird, 405 U.S. 438 (1972) ..............................................................18, 19

11

FCC v. Beach Communications, 508 U.S. 307 (1993)................................................20 Franklet v. United States, 578 F.Supp. 1552 (N.D. Cal. 1984).....................................3

12 Frontiero v. Richardson, 411 U.S. 677, 686 (1973)....................................................12

13

Graham v. Richardson, 403 U.S. 365 (1971) .............................................................. 11 Harper v. Va. State Bd. Of Elections, 383 U.S. 663 (1966) ..................................10, 12

14 Heller v. Doe, 509 U.S. 312 (1993) ............................................................................. 21

15

INS v. Chadha, 462 U.S. 919 (1983) ........................................................................... 21 Khan v. United States, 753 F.2d 1208 (3d Cir. 1985) ................................................... 3

16 Koala v. Khosla, 931 F.3d 887 (9th Cir. 2019) ............................................................. 5

17

Krishna Lunch of S. Cal. v. Gordon (9th Cir. 2020) ................................................... 21 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ............................................. 9

18 Mathews v. Diaz, 426 U.S. 67 (1976)....................................................................11, 12

19

Maynard v. Hill, 125 U.S. 190 (1888) ........................................................................... 9 Metropolitan Life Insurance Company v. Ward, 470 U.S. 869 (1985) ....................... 20

20 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................20, 21

21

Nyquist v. Mauclet, 432 U.S. 1 (1977) ........................................................................11 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) .......................................................7, 8, 9

22 Oyama v. California, 332 U.S. 633 (1948) ................................................................. 12

23 Perry v. Sinderman, 408 U.S. 593 (1972) ..................................................................... 5 Romer v. Evans, 517 U.S. 620 (1996) ......................................................................... 20

24 Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985).......................14

25 Speiser v. Randall, 357 U.S. 513 (1958) ...................................................................4, 5 Sugarman v. Dougall, 413 U.S. 634 (1973) ................................................................ 11
26 United States v. Windsor, 570 U.S. 744 (2013).........................................................8, 9

27 Village of Willowbrook v. Olech, 258 U.S. 562 (2000)...............................................20

W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................ 5

28

- iv -

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT TO JULY 13, 2020 ORDER (DKT. 50)

Case 8:20-cv-00858-SVW-JEM Document 57 Filed 07/27/20 Page 5 of 29 Page ID #:605

1 Wooley v. Maynard, 430 U.S. 705 (1977) ..................................................................... 5

2 Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................................................... 9

3

Statutes I.R.C. § 1 ........................................................................................................................3

4 I.R.C. § 6012..........................................................................................................3, 4, 6

5

I.R.C. § 6013..................................................................................................................3 I.R.C. § 6020................................................................................................................15

6 I.R.C. § 6702..................................................................................................................3

7

I.R.C. § 6751................................................................................................................15 I.R.C. § 6752................................................................................................................15

8 I.R.C. § 7203..................................................................................................................3

9 I.R.C. § 7703..................................................................................................................3 Other Authorities
10 Coronavirus Aid, Relief, and Economic Security Act,

11 Pub. L. No. 116-136, H.R. 748, 116th Cong. (2020) .......................................passim

12 Constitutional Provisions U.S. Const. amend. I .............................................................................................passim
13 U.S. Const. amend. V ...........................................................................................passim

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ INITIAL BRIEF PURSUANT

2

TO JULY 13, 2020 ORDER (DKT. 50)

3 I.

The CARES Act Impermissibly Inhibits Plaintiffs’ Fundamental Rights under the First Amendment and the Fifth Amendment.

4

In response to the greatest financial and health crisis this country has ever seen,

5 Congress passed the Coronavirus Aid, Relief, and Economic Security Act, Pub. L.

6 116-136 (March 27, 2020) (“CARES Act”), which, in part, provided emergency

7 financial relief to Americans. The CARES Act added Section 6428 to the Internal

8 Revenue Code, providing for a tax credit for the year 2020 to be issued immediately

9 in the form of an Advance Payment1 to taxpayers if certain income and other

10 eligibility thresholds were met. But not everyone who met the income threshold could

11 or would receive an Advance Payment, no matter how dire their need. Congress

12 included a provision — the Exclusion Provision codified at 26 U.S.C. 6428(g)

13 (“Exclusion Provision”) — which prohibits United States citizens who are married

14 and file tax returns jointly with spouses who have an Individual Taxpayer

15 Identification Number (“ITIN”) instead of a Social Security Number (“SSN”) from

16 receiving the Advance Payment. The Exclusion Provision deprives over 1.2 million

17 United States citizens of a benefit over one hundred million other similarly situated

18 United States citizens have already received. The Exclusion Provision simply cannot

19 be squared with the United States Constitution.

20

The Exclusion Provision unconstitutionally restrains three fundamental rights.

21 First, the Exclusion Provision inhibits speech, a fundamental right protected by the

22 First Amendment. The Exclusion Provision also improperly burdens the benefits of

23 marriage, a fundamental right, also protected by due process embodied in the Fifth 24 Amendment. Finally, the Exclusion Provision improperly denies Plaintiffs equal 25

26

27 1 Defined terms, including the Exclusion Provision, Advance Payment, ITIN, etc., are

28

defined in Plaintiffs’ Opposition to Defendants’ Motion to Dismiss. See Dkt. 32.
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1 protection under the law promised by the Fifth Amendment. Any one of these

2 infringements of Plaintiffs’ fundamental rights subjects the government to strict

3 scrutiny and demonstrates that the Exclusion Provision cannot stand.

4

Moreover, even if rational basis was the appropriate standard for judicial

5 review of Plaintiffs’ Due Process and Equal Protection Claims, the Defendants (the

6 “Government”) have failed to articulate any rational basis or legitimate government

7 interest for the Exclusion Provision. Defendants simply do not have a legitimate

8 interest in depriving Plaintiffs of the Advance Payment, much less one that outweighs

9 Plaintiffs’ fundamental rights to be treated equally with their fellow United States

10 citizens, to have their marriages respected, and to speak freely about their marriages.

11 Accordingly, Plaintiffs are entitled to an injunction preventing enforcement of the

12 Exclusion Provision, and an order directing Defendants to treat them equally with

13 other United States citizens by immediately issuing the Advanced Payments for all

14 those who otherwise qualify.

15

A. The CARES Act’s Infringement on Plaintiffs’ Fundamental Right to

16

Free Speech Under the First Amendment Warrants Strict Scrutiny

Review.

17

In his prolific November 13, 1789, letter to Jean Baptiste Le Roy, Benjamin

18 Franklin observed: “Our new Constitution is now established, and has an appearance

19 that promises permanency; but in this world nothing can be said to be certain, except

20 death and taxes.” That statement continues to profoundly resonate today. Few

21 sections of the United States Code intersect with the daily lives of Americans as does

22 Title 26, the Internal Revenue Code. Each year (except this year), on April 15,

23 hundreds of millions of Americans file their federal income tax returns, completing

24 one of the most maligned, but necessary, duties of United States personhood.

25 Plaintiffs, like all United States citizens whose income exceeds a certain

26 amount, are obligated to file federal income tax returns on an annual basis. I.R.C.

27

§ 6012. Were Plaintiffs to willfully fail to file income tax returns, the government

28

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1 could criminally prosecute the failure. I.R.C. § 7203. Accordingly, Plaintiffs are

2 required to engage in some degree of protected speech by informing the Internal

3 Revenue Service of information including their name, address, social security

4 number, and gross income. Plaintiffs, as married individuals, are entitled to file

5 jointly with their spouses, but also may file separately from their spouses. I.R.C.

6 §§ 1(a); 6012(a)(1)(A)(iv) (“who is entitled to make a joint return”); 6013 (“Joint

7 returns of income tax by husband and wife”); 7703 (“Determination of marital

8 status”). Marital status on a federal income tax return is determined by I.R.C. § 7703.

9 I.R.C. §§ 1(a)(1), (d). In general, individuals who are married on the last day of the

10 calendar year have two valid filing status options from which to choose: “married

11 filing jointly” or “married filing separately.” I.R.C. § 7703.

12

The First Amendment protects speech on tax forms. Of course, the right to

13 speech on a tax return is not absolute, and the government has a strong, legitimate

14 interest in encouraging lawful, truthful tax returns and may deter false or frivolous tax

15 returns through imposition of stiff civil penalties. See, e.g., I.R.C. § 6702. Khan v.

16 United States, 753 F.2d 1208 (3d Cir. 1985) and Franklet v. United States, 578

17 F.Supp. 1552 (N.D. Cal. 1984) both acknowledged that tax returns constitute speech

18 that is afforded First Amendment protection. Kahn, 753 F.2d at 1217; Franklet, 578

19 F.Supp. at 1556. Those cases also illustrate the unfortunate way the First Amendment

20 has historically been raised in most tax cases: an attempt to defend protestor-type

21 arguments that undermine administration of this country’s voluntary, self-reporting

22 tax system. Not surprisingly, both the Kahn and Franklet courts held that the

23 government’s strong, legitimate interest in effective functioning of a massive revenue

24 system outweighed private citizens’ right to express protest through filing federal

25 income tax returns. The premise that speech contained on an income tax return is

26 protected by the First Amendment is applicable here, but unlike in Kahn and

27 Franklet, permitting the speech at issue will not undermine the administration of our

28

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1 revenue laws or system. And more importantly, unlike in Kahn and Franklet,

2 Plaintiffs only seek to file valid tax returns that accurately report their marital status,

3 which is protected under the First Amendment as speech and association.

4

By awarding an Advance Payment to United States Citizens who otherwise

5 meet income eligibility requirements and who are married to other United States

6 citizens, or who are unmarried, or who are married to ITIN holders but do not elect to

7 file income tax returns jointly with their spouses, Defendants have impermissibly

8 restricted Plaintiffs’ fundamental First Amendment right to engage in free speech.

9 Denying the Advance Payment to Plaintiffs, who file jointly with their spouses,

10 places an unconstitutional condition on their First Amendment protected right to

11 speak freely about their marriages in the form of jointly filed federal income tax

12 returns. So long as Plaintiffs continue to exercise their First Amendment right to

13 express their marriages through jointly filed income tax returns – an “entitlement”

14 afforded by I.R.C. § 6012(a)(1)(A)(iv) – they will never be eligible for the Advance

15 Payment.

16

Over sixty years ago, the Supreme Court unequivocally rejected as

17 unconstitutional the type of conditions-based denial of benefits the Government tries

18 to defend here in Speiser v. Randall, 357 U.S. 513 (1958). In Speiser, the State of

19 California conditioned receipt of a tax exemption on signing a declaration stating that

20 the taxpayer did not support overthrowing the government. Id. at 516. The Supreme 21 Court emphatically rejected the offending provision of the statute conditioning receipt 22 of a benefit on engaging in speech as violative of the First Amendment. “It cannot be 23 gainsaid that a discriminatory denial of a tax exemption for engaging in speech is a 24 limitation of free speech.” Id. at 518. This is so because “the denial of a tax 25 exemption for engaging in certain speech necessarily will have the effect of coercing 26 the claimants to refrain from the proscribed speech.” Id. at 519. Allowing such a 27

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1 statute to stand would “allow the government to produce a result which [it] could not

2 command directly.” Id. at 526.

3

Congress may not condition denial of the CARES Act benefit on prohibiting

4 Plaintiffs from engaging in speech in the form of filing tax returns as married filing

5 jointly with their ITIN-holder spouses or requiring Plaintiffs to engage in speech in

6 the form of filing tax returns as married filing separately apart from their ITIN-holder

7 spouses any more than the State of California could require World War II veterans to

8 affirm that they did not advocate overthrowing the government by use of force in

9 order to receive a tax exemption. Id. The Supreme Court has roundly rejected the

10 exact kind of conditions-based benefits that seek to influence speech at issue here.

11 See, e.g., Perry v. Sinderman, 408 U.S. 593; 597 (1972) (“[I]f the government could

12 deny a benefit to a person because of his constitutionally protected speech or

13 associations, his exercise of those freedoms would in effect be penalized and

14 inhibited.”); Wooley v. Maynard, 430 U.S. 705, 719 (1977) (“where ‘the State’s

15 interest is to disseminate an ideology, no matter how acceptable to some, such

16 interest cannot outweigh an individual’s First Amendment right to avoid becoming

17 the courier for such message.’”); W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624,

18 633-34 (1943) ( “[T]he right of freedom of thought protected by the First Amendment

19 against state action includes both the right to speak freely and the right to refrain from

20 speaking at all[.]”). While it is true that a legislative body’s decision not to subsidize

21 the exercise of a fundamental right does not infringe on that right, withholding

22 benefits from certain groups while affording those benefits to others who are

23 similarly situated with a “censorious” purpose violates the First Amendment. Koala

24 v. Khosla, 931 F.3d 887, 898 (9th Cir. 2019). In Alliance for Open Society

25 International, Inc. v. United States Agency for International Development, the Court

26 of Appeals for the Second Circuit affirmed a District Court order granting a

27 preliminary injunction enjoining enforcement of a statute requiring specific speech in

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1 exchange for funding. 651 F.3d 218 (2d Cir. 2011). Relying heavily on Supreme

2 Court cases Wooley, Speiser, and Barnette, the Second Circuit noted that in that case,

3 as with Plaintiffs here, silence was not an option. Here, Plaintiffs must file tax returns

4 and select a valid filing status. I.R.C. § 6012. Where, as in Alliance for Open Society

5 and in the case at bar, “the government seeks to affirmatively require government-

6 preferred speech, its efforts raise serious First Amendment concerns.” 651 F.3d at

7 234. At bottom, “[c]ompelling speech as a condition of receiving a government

8 benefit cannot be squared with the First Amendment.” Id.

9

Requiring Plaintiffs to file tax returns as “married filing separately” to a

10 receive a benefit they would not be entitled to if they file “married filing jointly” as

11 they are entitled to do under I.R.C. § 6012(a)(1)(A)(iv) cannot be interpreted as

12 anything but an impermissible condition on receiving a government benefit. The

13 Exclusion Provision seeks to compel speech that Congress could never directly

14 compel – requiring United States citizens who are married to ITIN holders to file

15 their income tax returns as “married filing separately” by depriving them of a benefit

16 absent conforming their speech to the desired government outcome. In doing so, the

17 government forces an SSN holder married to an ITIN holder to make a Sophie’s

18 Choice: allow their speech to be regulated by the government and file separately in an

19 attempt to gain the Advance Payment during this unprecedented time of need, thereby

20 jeopardizing the ITIN holder’s application for legal immigrant status, or file jointly

21 and forgo the Advance Payment. See Dkt. 11 at 20-21, and Exhibits C and D; see also

22 Dkt. 26 at 19-20, and Exhibits E-G. The government is prohibited from conditioning

23 Plaintiffs’ right to receive the benefit in the form of Advance Payment on their

24 agreement to alter their speech to conform to the government’s preferred speech.

25

The Exclusion Provision, therefore, restricts speech that Plaintiffs have a right

26 to engage in. The burden is therefore on the Government on the ultimate question of

27 constitutionality, as well as to demonstrate that curtailing Plaintiffs’ speech is the

28

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1 least restrictive means available to accomplish a legitimate legislative goal. Ashcroft

2 v. American Civil Liberties Union, 542 U.S. 656, 666 (2004). The Government has

3 not and cannot meet this burden, and the injunction in favor of Plaintiffs should be

4 granted.

5

As Benjamin Franklin presciently articulated over two hundred years ago, our

6 Constitution, though seemingly permanent, was not as certain as death and taxes.

7 This Court must now elect its course: to either uphold, or curtail, the fundamental

8 protections of the First Amendment to the United States Constitution.

9

B. The CARES Act’s Infringement on Plaintiffs’ Fundamental Right to

10

Due Process under the Fifth Amendment Warrants Strict Scrutiny Review.

11

“The Constitution promises liberty to all within its reach, a liberty that includes

12 certain specific rights that allow persons, within a lawful realm, to define and express

13 their identity.” Obergefell v. Hodges, 135 S.Ct. 2584, 2593 (2015). Plaintiffs seek to

14 find that liberty by defining and expressing their identity through their personal

15 choice of marriage and having their marriages treated as equal on the same terms and

16 conditions as marriages between two U.S. citizens. Id. The Exclusion Provision

17 denies Plaintiffs’ liberties without the due process protections afforded them by the

18 Fifth Amendment. In Obergefell v. Hodges, the Supreme Court recognized that “the

19 right to personal choice regarding marriage is inherent in the concept of individual

20 autonomy.” Id. at 2598. Through the “enduring bond” of marriage, couples can “find

21 other freedoms, such as expression, intimacy, and spirituality.” Id. at 2599. Marriage

22 “safeguards children and families,” and “the right to marry, establish a home and

23 bring up children is a central part of the liberty protected by the Due Process Clause.”

24 Id. at 2600 (citations omitted). Due process offers marriages “recognition, stability,

25 and predictability.” Id. (emphasis added). It is with these basic principles in mind that

26 we turn to the Exclusion Provision, which deprives Plaintiffs of the recognition,
27

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1 stability, and predictability that the Due Process protections of the Fifth Amendment

2 require.

3

Without question, the Defendants and this Court have correctly noted that the

4 Exclusion Provision does not deprive Plaintiffs of the right to marry the person of

5 their choice. It does not, unlike the Michigan Marriage Amendment at issue in

6 Obergefell or the Defense of Marriage Act at issue in United States v. Windsor, 570

7 U.S. 744 (2013), invalidate or refuse to recognize a marriage as valid. But death by a

8 thousand cuts is nevertheless still death, and a society that allows liberties that should

9 be protected to be chipped away one at a time is destined for despotism. See, e.g.,

10 Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855) (the Due

11 Process clause of the Fifth Amendment “is a restraint on the legislative as well as on

12 the executive and judicial powers of the government, and cannot be so construed as to

13 leave congress free to make any process ‘due process of law’ by its mere will.”). For

14 the Exclusion Provision may well be just as pernicious to Plaintiffs’ marriages as

15 DOMA was to Edith Windsor and as the Michigan Marriage Amendment was to

16 James Obergefell. By denying Plaintiffs’ marriages the recognition that Due Process

17 requires, the Exclusion provision deprives the marriage of the stability that the

18 CARES Act was designed to provide. Moreover, it may well result in Plaintiffs being

19 unable to reside in the same country as their chosen spouse. See Dkt. 11 at 20-21, and

20 Exhibits C and D; see also Dkt. 26 at 19-20, and Exhibits E-G.

21

In Obergefell and Windsor, the Supreme Court was concerned with not only

22 recognition of the marriages which those individuals sought to enter, but also with the

23 deprivation of the “constellation of benefits” accompanying marriage. Obergefell,

24 135 S. Ct. at 2601. The Exclusion Provision illustrates just how easily government

25 can denigrate a marriage and deprive individuals of the “constellation of benefits”

26 that accompany “favored” unions over those that are politically unpopular. Certainly

27 this Court would not countenance a provision that denied the Advance Payment to

28

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1 United States citizens in same sex marriages, in marriages to individuals from

2 specific countries, or in marriages to individuals of a difference race. Nor should this

3 Court countenance the Exclusion Provision, which deprives Plaintiffs of the

4 recognition and “constellation of benefits” conferred on United States citizens who

5 have chosen to marry someone who has a Social Security Number instead of an ITIN.

6

The Supreme Court’s jurisprudence on the importance and sanctity of the

7 institution of marriage has developed over one hundred years. Since 1888, the Court

8 has recognized that marriage is “the foundation of the family and of society, without

9 which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S.

10 190, 213 (1888). It is with this basic principle in mind that the Obergefell Court

11 explained, “just as a couple vows to support each other, so does society pledge to

12 support the couple, offering symbolic recognition and material benefits to protect and

13 nourish the union…” Obergefell, 135 S. Ct. at 2601. That pledge falls short here. The

14 purpose and effect of the Exclusion Provision is the same as the purpose and effect of

15 the Defense of Marriage Act and the Michigan Marriage Amendment: “to disparage

16 and to injure” the Plaintiffs. Windsor, 570 U.S. at 2696. Accordingly, it violates the

17 Due Process Clause of the Fifth Amendment and must be struck down.

18

Legislative classifications that burden fundamental rights are subject to strict

19 scrutiny review. Strict scrutiny applies when a legislative classification

20 “impermissibly interferes with the exercise of a fundamental right or operates to the

21 peculiar disadvantage of a suspect class.” Mass. Bd. of Retirement v. Murgia, 427

22 U.S. 307, 312(1976). Such classifications are presumed unconstitutional and will

23 survive strict scrutiny only when the government can show the law is narrowly

24 tailored to a compelling governmental interest. See Zablocki v. Redhail, 434 U.S. 374,

25 388 (1978). Clearly, the Exclusion Provision cannot survive such scrutiny as no bases

26 put forth by the Defendants demonstrate any compelling government interest, and

27 certainly are not narrowly tailored. Neither administrative ease, nor reconciliation of

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1 the payment are compelling government interests, and as detailed in Section III

2 below, are not narrowly tailored to serve any interests. Accordingly, the Exclusion

3 Provision must be found unconstitutional.

4

C. The CARES Act’s Infringement on Plaintiffs’ Equal Protection of

5

the Laws under the Fifth Amendment Warrants Strict Scrutiny Review.

6

“[W]here fundamental rights and liberties are asserted under the Equal

7 Protection Clause, classifications which might invade or restrain them must be

8 closely scrutinized and carefully contained.” Harper v. Va. State Bd. Of Elections,

9 383 U.S. 663, 670 (1966). When a right is “too precious, too fundamental,” it may

10 not be conditioned, and must be struck down. Id. The Exclusion Provision in the

11 CARES Act violates Equal Protection in three ways. Each is sufficient to strike the

12 Exclusion Provision down, and taken together as a whole they compel this Court to

13 grant Plaintiffs’ motion for an injunction, at once.

14

Statutes that classify by race, alienage, or national origin are “so seldom

15 relevant to the achievement of any legitimate state interest that laws grounded in such

16 considerations are deemed to reflect prejudice and antipathy.” City of Cleburne, Tex.

17 v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Given that “such discrimination

18 is unlikely to be soon rectified by legislative means, these laws are subjected to strict

19 scrutiny and will be sustained only if they are suitably tailored to serve a compelling

20 state interest.” Id. As Plaintiffs demonstrate in Section II, infra, the Government does

21 not even have a rational basis for the Exclusion Provision, let alone a compelling state

22 interest. Defendants put forth three half-hearted attempts to surmise what Congress

23 “might have considered,” but the absence of legislative history on the Exclusion

24 Provision coupled with the absence of any attempt to argue that the state interest is

25

compelling renders this element satisfied in favor of Plaintiffs. The only remaining

26

question to consider is whether the Exclusion Provision classifies on a suspect class.

27

It does.

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1

1. The Exclusion Provision Discriminates Against Plaintiffs on the

2

Basis of Alienage, and is Subject to Strict Scrutiny.

3

There is abundant jurisprudence invalidating statutes which sought to deny

4 aliens equal protection under the law. See, e.g., Bernal v. Fainter, 467 U.S. 216

5 (1984) (invalidating statute requiring that a notary public be a United States citizen

6 on equal protection grounds and applying strict scrutiny); Sugarman v. Dougall, 413

7 U.S. 634 (1973) (invalidating statute barring aliens from certain civil service

8 positions); Nyquist v. Mauclet, 432 U.S. 1 (1977) (holding exclusion of aliens from

9 loan program violated equal protection and applying strict scrutiny). In its Order 10 dated July 8, 2020 (Dkt. 44), the Court determined that the classification based on

11 alienage is subject to rational basis because Plaintiffs, unlike their spouses, are

12 citizens. However, there is ample precedent for applying strict scrutiny to the

13 Exclusion Provision based on alienage. In Nyquist v. Mauclet, the Supreme Court

14 encountered a similar argument in that the statute at issue “was not an absolute bar”

15 to the right at issue, but the statute was directed at aliens and aliens were harmed by

16 it. 432 U.S. at 9. Simply because the Government is harming both aliens and their

17 families (including United States citizens) through the Exclusion Provision does not

18 mean it can escape strict scrutiny. Similarly, in Graham v. Richardson, the Supreme

19 Court invalidated a state statute that denied benefits to a certain class of aliens. 403

20 U.S. 365 (1971). The Court held, “justification of limiting expenses is particularly

21 inappropriate and unreasonable when the discriminated class consists of aliens.” In

22 this case, the discriminated class consists of alien spouses. Congress cannot cure the

23 invidious exclusion of aliens by broadening it to include their families in an effort to

24 escape strict scrutiny judicial review, and this Court should reject the attempt to do

25 so. Mathews v. Diaz, 426 U.S. 67 (1976), which distinguished Graham, is inapposite.

26 In that case, the Supreme Court expressly held there was “no impairment of the

27 freedom of association of either citizens or aliens.” Id. at 87. Here, the Exclusion

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1 Provision directly impairs the freedom of citizens to associate with aliens by

2 withholding a benefit from citizens if they choose to associate with aliens by

3 marrying them and expressing that association through joint tax returns.

4

2. The Exclusion Provision Discriminates Against Plaintiffs on the

5

Basis of National Origin, and is Subject to Strict Scrutiny.

6

Place of birth, which is an “immutable characteristic determined solely by the

7 accident of birth” forms the basis finding a suspect class. Frontiero v. Richardson,

8 411 U.S. 677, 686 (1973). In Oyama v. California, 332 U.S. 633 (1948), the Supreme

9 Court admonished that when reviewing statutes that result in deprivation of rights

10 based on national origin, “it is incumbent upon us to inquire not merely whether

11 [constitutional rights] have been denied in express terms, but also whether they have

12 been denied in substance and in effect.” In that case, Mr. Oyama had to jump through

13 multiple hoops to be able to own land in California, hoops that no other Californian

14 would have had to jump through to accomplish the same result. As with alienage, the

15 Government has chosen to cast its net of discrimination more broadly and deprives

16 both those who are ITIN holders and their United States citizen spouses of the

17 Advance Payment. But the discriminatory purpose is the same-national origin, and

18 the harm to Plaintiffs is equally as unconstitutional as it was in Oyama.

19

3. The Exclusion Provision Unconstitutionally “Taxes” Plaintiffs’ Marriage, and is Subject to Strict Scrutiny.

20

As Plaintiffs more fully explained in Section I(B), supra, the Exclusion

21 Provision burdens the “constellation of benefits” afforded to marriages. In Harper v.

22 Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court 23 considered whether a poll tax imposed in the State of Virginia withstood

24 constitutional scrutiny, and roundly rejected the premise. While the Court

25 acknowledged that States may impose reasonable requirements on voting, imposing

26 requirements “which invidiously discriminate” could not be squared with the equal

27 protection clause. Id. at 666.

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1

By denying Plaintiffs the CARES Act tax credit, which is afforded to all other

2 similarly situated United States citizens, the Government has placed a penalty on

3 their marriage if they file tax returns jointly that is akin to a poll tax. The Exclusion

4 Provision has but one purpose – to disparage Plaintiffs’ marriages by refusing them a

5 benefit that is afforded to all other similarly situated individuals and married couples

6 when the marriage does not include an ITIN holder. Unless Plaintiffs file their tax

7 returns separately, risking not only future immigration proceeding outcomes but also

8 receipt of the CARES Act credit they seek to obtain, their marriages will be penalized

9 in the amount of the CARES Act credit that they would have otherwise obtained if

10 not married to and filing jointly with an ITIN holder. See Affidavit of Guinevere M.

11 Moore attached hereto and incorporated herein as Exhibit A, ¶¶ 7-8. Defendants will

12 protest and argue they are not refusing to acknowledge Plaintiffs’ marriages, and this

13 is true. No federal or state government is refusing to acknowledge that Plaintiffs’

14 marriages are valid. But surely the Government cannot side-step the constitutional

15 protections afforded in the Equal Protection Clause by acknowledging Plaintiffs’

16 marriages as valid and then charging them what amounts to an “immigrant marriage

17 penalty” to denigrate that marriage. Instead, what is warranted is invalidation of the

18 Exclusion Provision and an Injunction in Plaintiffs’ favor.

19 II. Even if the CARES Act’s Infringement on Plaintiffs’ Fundamental Right

20

to Equal Protection under the Fifth Amendment Warranted Rational

Basis Review, there is no Rational Basis for the Exclusion Provision.

21

Defendants attempt to distract this Court from the discriminatory purpose of

22 the Exclusion Provision by taking pages to describe the steps to determine how

23 taxable income is calculated and how the CARES Act works. Plaintiffs do not dispute

24 that computing an individual’s income tax liability is a multi-step endeavor, (Dkt. 54

25 at 5), that taxable income includes gross income, (id.) that tax benefits are often

26 directly tied to a taxpayer’s adjusted gross income (“AGI”) (id. at 6), or that tax

27

deductions, which are not at issue here, are a matter of legislative grace (id.). Of

28

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1 course, the rule that deductions are a matter of legislative grace is in direct contrast to

2 tax credits like the CARES Act credit, which are considered property owned by the

3 taxpayer. Sorenson v. Sec’y of Treasury of U.S., 752 F.2d 1433 (9th Cir. 1985)

4 (finding the earned income tax credit was “undisputedly owed to petitioner and

5 undisputedly not owed to the United States as taxes.”). None of this has any bearing

6 on whether the Government had or could have a rational basis for excluding Plaintiffs

7 from receiving a benefit to which over one hundred million similarly situated United

8 States citizens are entitled to and have received.

9

Plaintiffs also note that Defendants have accurately described the way the

10 CARES Act operates on pages 6-8 of their brief, including the description of the legal

11 fiction created by 26 U.S.C. § 6428(e)(2), which provides that in the case of a refund

12 or credit under subsection (f), half of each Advance Payment shall be treated as

13 having been made or allowed to each married individual. Or, more simply put, when

14 the Advance Payment is distributed to married individuals, each spouse is considered

15 to have received a one-half share in the other spouse’s payment. This legal fiction

16 provides the mechanism for each of the three purportedly rational bases on which

17 Defendants defend the Exclusion Provision, but falls far short of justifying the

18 deprivation of a benefit to Plaintiffs that all other similarly situated United States

19 citizens enjoy.

20

A. Administrative Concerns Do Not Constitute a Valid Rational Basis

21

for Excluding Plaintiffs From Receipt of the Advance Payment or

the CARES Act Credit.

22

First, Defendants contend that Congress may have excluded United States

23 citizens who file jointly with their ITIN-holder spouses for administrative ease. See

24 Dkt. 54 at 10-12. Given the record-breaking scope and magnitude of the CARES Act,

25 which implemented never-before seen government aid programs at record speed,

26 administrative ease of implementation seems to have been the last consideration

27

Congress had. Defendants surmise that the IRS could not possibly be expected to

28

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1 compute a credit based on one spouse’s income and not the other, or know which

2 deductions would have been claimed by which spouse, and that Congress may

3 rationally have determined that it was just too much for the IRS to handle

4 administratively to compute the “theoretical eligibility of joint filers.” Id. at 11. This

5 argument displays a fundamental lack of understanding of the innerworkings of the

6 Internal Revenue Service, inappropriately seeks to downplay the difference between

7 treatment of Plaintiffs and all other citizens, including the military, and ignores what

8 the IRS is actually doing, which is to deprive even citizens who have filed separately

9 from ITIN-holder spouses of their Advance Payment.

10

The IRS has access to most taxpayers’ gross income through vast information

11 return reporting, such as IRS Form W-2, Wage and Tax Statement, IRS Form 1099-

12 Misc, Miscellaneous Income, etc. Employers face significant penalties for the failure

13 to gather and report information regarding wages paid to employees to the Internal

14 Revenue Service. I.R.C. §§ 6751, 6752. Plaintiffs do not dispute that Congress has

15 the authority to determine how best to implement revenue laws, but instead contend

16 that the IRS has the means and the information to easily determine which taxpayer

17 earned income and generated deductions. The notion that the IRS cannot “divine the

18 adjusted gross income a joint filer would have had if she had filed using the married

19 filing separately status” is patently false and insulting to the hard-working and highly

20 competent employees of the IRS. The IRS routinely prepares Substitute-For-Returns

21 for non-filers based on the very information Defendants contend cannot be “divined”

22 here. I.R.C. § 6020(b). The IRS also routinely audits complex partnerships and

23 corporations. Surely the IRS is up to the job of calculating whether an individual is

24 eligible for the Advance Payment.

25

The disparate treatment Plaintiffs receive as compared with all other United

26 States citizens and with United States Citizens who are married to ITIN holders but

27 are in the military is justified with the circular logic that the policy of treating

28

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1 veterans differently has “always been deemed to be legitimate.” See Dkt. 54 at 12.

2 Plaintiffs do not dispute that those who sacrifice for our country should be afforded

3 special treatment, but instead contend that this is one more example in which

4 Plaintiffs are treated as an “other.” This argument offers nothing more than a

5 command to “Pay No Attention to that Man Behind the Curtain!”2 and should be

6 disregarded as such.

7

Finally, Plaintiffs are aware of instances in which United States Citizens who

8 are married to ITIN holders and did file tax returns as “married filing separately,” but

9 nonetheless have been denied an Advance Payment and told either directly or through

10 an authorized representative that the IRS is unable to issue Advance Payments. See

11 Exhibit A3. On information and belief, these individuals are being told by IRS

12 employees that they must wait to file their 2020 income tax return and claim the

13 Advance Payment at that time. Id. If administrative ease were truly behind the

14 Exclusion Provision, then the IRS would be issuing Advance Payments to those

15 taxpayers who filed separately from their ITIN-holder spouses.

16

B. The Legal Fiction Created by I.R.C. § 6428(e) is not a

17

“Reconciliation Procedure.”

18

Defendants posit that the legal fiction contained in Section 6428(e), which

19 provides that when an Advance Payment is made, half of the Advance Payment “shall

20 be treated as having been made or allowed to each individual filing such return,”

21 justifies the Exclusionary Provision. See Dkt. 54 at 13. Otherwise, Defendants argue,

22

23

24 2 This line is spoken by The Wizard of Oz, played by Frank Morgan, in the film The Wizard of Oz, directed by Victor Fleming (1939).
25 3 Plaintiffs include the Affidavit not as proof that the IRS is improperly denying
26 Advanced Payments to Citizens who are married filing separately from their spouses,

27 but as an offer of proof that at a minimum, Plaintiffs are entitled to discovery on how

28

the IRS is implementing the CARES Act.
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1 ITIN holders would be deemed to have received a one-half interest in their spouse’s

2 Advance Payment.

3

Standing alone, the legal fiction that each spouse owns half of another’s

4 Advance Payment is not problematic, however, when taken together with the

5 Exclusion Provision it enables Defendants’ circular, half-hearted argument about the

6 administrative difficulties of unwinding a jointly filed tax return to determine

7 individual eligibility for a tax credit. Even if it turns out that an individual who

8 received the Advance Payment was not entitled to receive it, it won’t have to be

9 repaid. Section 6428(e)(1) expressly provides that the amount of credit will not be

10 reduced below zero. Put another way, the Advance Payment is a gift in the hands of

11 most Americans. To say that the Exclusion Provision was designed to ensure that

12 overpayments did not inadvertently flow to ITIN holders who file jointly with United

13 States Citizens ignores this nonrepayment rule. As with most things, the most obvious

14 and simple explanation is the right one: the Exclusion Provision is designed to punish

15 an unpopular group – ITIN holders and their spouses.

16

C. The Exclusionary Provision is a Merely Vehicle to Punish an

17

Unpopular Group.

18

The third and final purportedly rational basis Defendants contend may have

19 been behind the Exclusion Provision is a desire to prevent nonresident aliens from

20 receiving the Advance Payment. See Dkt. 54 at 13-14. This rationale gets to the heart

21 of what the Exclusion Provision is really about – excluding not only nonresident

22 aliens, but anyone who is associated with them. Congress’ desire to deny a benefit to

23 nonresident aliens does not entitle it to deny that benefit to United States citizens who

24 are married to nonresident aliens. The Exclusion Provision seeks to do just that, by

25 forcing married couples to file separately in order to receive the same benefit already

26 distributed to over one hundred million similarly situated citizens.

27

28

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1

In Department of Agriculture v. Moreno, the Supreme Court rejected as

2 unconstitutional a similarly hollow “rational basis” for excluding a politically

3 unpopular group from receiving benefits otherwise broadly distributed. 413 U.S. 528

4 (1973). In Moreno, the court considered whether provisions excluding “hippies” from

5 receiving food stamps was unconstitutional. Id. The Food Stamp Act was initially

6 enacted without any Exclusion Provision but was amended to define “households”

7 entitled to receive food stamps in a manner that excluded all households that included

8 unrelated individuals. Id. at 530, 531. In Moreno, as here, scant legislative history

9 provided insight as to the reason for excluding the persons at issue. Id. at 534. The

10 government in Moreno attempted to convince the Supreme Court that the law could

11 have had a rational basis, arguing that Congress may have rationally thought that the

12 Exclusion Provision in the Food Stamp Act would reduce fraud. Id. at 535. The

13 Supreme Court summarily rejected the post-hoc attempt to rationalize marginalizing a

14 politically unpopular group. “For if the constitutional conception of ‘equal protection

15 of the laws’ means anything, it must at the very least mean that a bare congressional

16 desire to harm a politically unpopular group cannot constitute a legitimate

17 government interest.” Id. at 534.

18

None of the supposedly rational bases advanced by Defendants outweigh the

19 harm to the Plaintiffs’ fundamental rights as articulated in Section I above. There is

20 simply no legitimate government interest that would outweigh Plaintiffs’ right to

21 equal treatment under the laws. It is an unpopular time to be married to a nonresident

22 alien — look no further than the two proposed Amicus Briefs filed in this case. See

23 Dkts. 37-3 and 39-2. That does not grant Congress license to exclude from the

24 CARES Act “persons who are so desperately in need of aid.” Moreno, 413 U.S. at

25 538.

26

Without a doubt, equal protection does not prevent the government from

27 treating different people in different ways. What it does prevent, however, is “the

28

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1 power to legislate that different treatment be accorded to persons placed by a statute

2 into different classes on the basis of criteria wholly unrelated to the objective of that

3 statute.” Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). The different class in which

4 Defendants have placed Plaintiffs is wholly unrelated to the objective of the CARES

5 Act. In Eisenstadt v. Baird, the Supreme Court struck down a contraception law

6 under rational basis review, and patently refused to rely on post-hoc justifications for

7 the statute that the legislature never considered when enacting it. Id. at 450-52.

8 Indeed, negotiations on the second round of stimulus checks and the question of

9 whether Plaintiffs will once again be excluded from emergency relief only highlight

10 the political animus that prevented them from receiving the CARES Act Advance

11 Payment. See, e.g., Rafeal Bernal, GOP Senators push for stimulus checks to almost

12 2M excluded Americans, THE HILL (July 25, 2020), https://thehill.com/latino/508984-

13 gop-senators-push-for-stimulus-checks-to-almost-2m-excluded-americans (last

14 visited July 27, 2020).

15

Former Florida Republican Party chairman, Al Cardenas, put it this way, “For

16 U.S. citizens to once again be treated in a disparate manner in trying times is mean-

17 spirited, and there’s no logic to it.” Id. One of the main arguments for including

18 Plaintiffs is basic fairness as they have SSNs, and pay taxes. “They need to redress it,

19 fix it, never repeat it again,” Daniel Garza, executive director of The Libre Initiative,

20 told The Hill. “It’s a question of flat-out fairness. See id; see also Shahar Ziv, Rubio

21 Renews Stimulus Check Eligibility Push; 1.7 Million U.S. Citizens Currently

22 Excluded, FORBES (July 26, 2020) https://www.forbes.com/sites/shaharziv/

23 2020/07/26/rubio-renews-second-stimulus-check-eligibility-push-coronavirus-

24 stimulus-package/#7a62be0c3b4b (last visited July 27, 2020).

25

The question for this Court to consider under rational basis is whether “there is

26 some ground of difference that rationally explains the different treatment accorded”

27 to persons who are married to ITIN holders and persons who are not. Here, as in

28

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1 Eisenstadt and Moreno, “no such ground exists.” Eisenstadt, 405 U.S. at 447. The

2 rationales posited by the government ring hollow and there is no indication

3 whatsoever that they were actually considered by the legislature. Instead, what is

4 evident is a political animus towards Plaintiffs. See; Dkt. 37-3; Dkt. 39-2.

5

Desire to harm a politically unpopular group is never a rational basis for

6 disparate treatment. Moreno, 413 U.S. at 534. Desire to undermine a marriage is

7 never a rational basis for disparate treatment.

8 III. 9 10

Plaintiffs are Entitled to an Injunction Now and Plaintiffs are Entitled to Discovery.
Plaintiffs have demonstrated that the Exclusion Provision violates their

11 fundamental rights under the First Amendment, as well as their Due Process and

12 Equal Protection rights under the Fifth Amendment, and accordingly this Court

13 should grant Plaintiffs’ request for injunctive relief. Even under a rational basis

14 analysis of Plaintiffs’ equal protection claims, this Court should order an injunction to

15 issue in Plaintiffs’ favor or, at a minimum, order the parties to conduct discovery.

16

Acts of Congress are presumptively Constitutional, but a presumption must

17 never be confused with a per se rule. C.f. INS v. Chada, 462 U.S. 919 (1983); Nat’l

18 Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). The presumption of

19 constitutionality is a “rebuttable presumption” “of fact.” Borden’s Farm Prods. Co. v.

20 Baldwin, 293 U.S. 194, 209 (1934). For every FCC v. Beach Communications, 508

21 U.S. 307 (1993), cited by the Government throughout its brief for the proposition that

22 Plaintiffs must refute every reason and possible, hypothetical rationale that the

23 Government may have had in enacting the Exclusion Provision, there is a

24 Metropolitan Life Insurance Company v. Ward, 470 U.S. 869 (1985), which applied a

25 more realistic approach to the question of whether the challenged law rationally

26 advanced a reasonable and identifiable governmental objective, and remanded to the

27 lower court for that determination. See also, Romer v. Evans, 517 U.S. 620 (1996)

28

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1 (holding the rational basis test is not a formalistic ritual in which courts can conjure

2 up justifications for a law that are “divorced from any factual context” from which a

3 relationship to legitimate state interests can be discerned); Village of Willowbrook v.

4 Olech, 258 U.S. 562, 565 (2000) (affirming Seventh Circuit’s holding reversing

5 District Court order granting motion to dismiss complaint when “allegations, quite

6 apart from the [government’s] subjective motivation, are sufficient to state a claim for

7 relief under traditional equal protection analysis.”). Defendants make much of the

8 same type of Exclusion Provision in other laws. Plaintiffs are aware of no case

9 holding that provision is constitutional. And much like in Windsor, the prior practice

10 of discrimination does not render it acceptable or constitutional.

11

Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000), stands for the proposition

12 that when the government creates classifications that distinguish among different

13 groups of aliens, the appropriate standard for review is rational basis. The Exclusion

14 Provision at issue here does not distinguish between different groups of aliens, but

15 instead distinguishes between those United States citizens who are married to, and

16 file tax returns jointly with, individuals who have an ITIN and those who are not

17 married to ITIN holders or do not file tax returns jointly with ITIN holders. Neither

18 Aleman nor any other case cited by Defendants4 stands for the proposition that

19

20 4 See generally INS v. Chadha, 462 U.S. 919 (1983) (considering the constitutionality

21 of a provision in the Immigration and Nationality Act allowing the House of Representatives to invalidate a decision of the Executive Branch to allow the
22 respondent to remain in the United States); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

23 U.S. 519 (2012) (evaluating the individual mandate provision of the Affordable Care

Act imposing a “shared responsibility payment” on individuals who failed to 24 maintain health insurance); Heller v. Doe, 509 U.S. 312 (1993) (evaluating

25 Kentucky’s statutes pertaining to involuntary commitment of disabled individuals

under the Equal Protection Clause as to standard of evidence and involvement of 26 guardians in the involuntary commitment process; Krishna Lunch of S. Cal. v.

27 Gordon (9th Cir. 2020) (evaluating a “neutral and generally applicable” policy

28

imposed by UCLA upon its student organizations).
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1 Congress has ever articulated or could articulate a legitimate government interest that

2 outweighs an American citizen’s right to receive the same benefit afforded all others

3 similarly situated during a crisis of devastating and as-yet unmeasurable proportions.

4

Throughout their brief, Defendants rely on cases like Aleman v. Glickman, 217

5 F.3d 1191 (9th Cir. 2000) and Allied Concrete and Supply Company v. Baker, 904

6 F.3d 1053 (9th Cir. 2018) to argue that, in essence, the government need not

7 articulate an actual rational basis, because it is enough that one could have been

8 conceived. Those cases have no bearing here. In Allied Concrete, the Ninth Circuit

9 thoroughly analyzed actual evidence of what the legislature did consider when

10 enacting the provision at issue. 904 F.3d at 1062. In Aleman v. Glickman, the Ninth

11 Circuit was persuaded by the Supreme Court’s having considered and upheld the

12 classification regarding divorce at issue there on two separate prior occasions. 217

13 F.3d at 1201. Exhaustive research has not uncovered any case wherein any court has

14 upheld a statutory provision treating United States citizens differently than other

15 United States citizens based on whom they were married to and their marital status as

16 elected on a federal income tax return. If it appears from the face of a complaint that

17 the plaintiff could, if given the opportunity, prove that the challenged law is not

18 rationally related to a legitimate government interest, Rule 12(b)(6) entitles her to

19 gather and introduce evidence to do so. Plaintiffs have more than demonstrated the

20 need for an injunction to issue, at once. However, if this Court has any remaining 21 doubt regarding whether Plaintiffs are entitled to relief, the appropriate course of 22 action is to order discovery to commence, and not to dismiss the well-pleaded 23 complaint. 24

25 DATED: July 27, 2020

Respectfully submitted,

26

27

JANE DOE and JOHN DOE, individually and

28

on behalf of others similarly situated.
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1

By: /s/ Guinevere M. Moore

2

Guinevere M. Moore (admitted pro hac vice)

MOORE TAX LAW GROUP LLC

3

150 N. Wacker Drive, Suite 1250

4

Chicago, Illinois 60606

5

T: (312) 549-9992

6

F: (312) 549-9991 guinevere.moore@mooretaxlawgroup.com

7

Attorney for Plaintiffs

8

9

BLAISE & NITSCHKE, P.C.

Heather L. Blaise (SBN 261619)

10

Lana B. Nassar (admitted pro hac vice)

11

Thomas J. Nitschke (IL Bar No. 6225740) *

12

Elisabeth A. Gavin (admitted pro hac vice)

123 N. Wacker Drive, Suite 250

13

Chicago, IL 60606

14

T: (312) 448-6602

15

F: (312) 803-1940

16

lnassar@blaisenitschkelaw.com

17

MATERN LAW GROUP

18

Matthew J. Matern (SBN 159798)

19

Joshua D. Boxer (SBN 226712)

1230 Rosecrans Avenue, Suite 200

20

Manhattan Beach, CA 90266

21

T: (310) 531-1900

22

F: (310) 531-1901

23

mmatern@maternlawgroup.com

24

KHALAF & ABUZIR, LLC

25

Vivian Khalaf (IL Bar No. 6210668) *

26

Omar Abuzir (IL Bar No. 6257708) *

20 N. Clark, Suite 720

27

Chicago, IL 60602

28

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1

T: (708)-233-1122

2

F: (708)-233-1161

vkhalaf@immigrationjd.com

3

4

* Application for admission pro hac vice

5

forthcoming

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 1 of 26 Page ID #:567

1 NICOLA T. HANNA

United States Attorney

2 THOMAS D. COKER

Assistant United States Attorney

3 Chief, Tax Division

MELISSA BRIGGS (Cal. Bar No. 320697)

4 JOHN D. ELLIS (Cal. Bar No. 322922)

Assistant United States Attorneys

5

Federal Building, Suite 7211

300 North Los Angeles Street

6

Los Angeles, California 90012

Telephone: (213) 894-6165

7

(213) 894-2740

Facsimile: (213) 894-0115

8

E-mail: melissa.briggs2@usdoj.gov

john.ellis3@usdoj.gov

9

Attorneys for the

10 United States of America

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

Initial Brief pursuant to July 13, 2020,

16 v.

Order (ECF 50)

17

Hearing Date: August 3, 2020

DONALD J. TRUMP, et al.,

Time:

1:30 p.m.

18

Location:

Conducted telephonically

Defendants.

19

Hon. Stephen V. Wilson

20

21

22

23

24

25

26

27

28

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 2 of 26 Page ID #:568

1

The United States of America (Government) hereby submits its brief in

2 accordance with this Court’s order dated July 13, 2020 (ECF 50).

3

4 Dated: July 20, 2020

Respectfully submitted,

5

NICOLA T. HANNA

United States Attorney

6

THOMAS D. COKER

Assistant United States Attorney

7

Chief, Tax Division

8

/s/ John D. Ellis

MELISSA BRIGGS

9

JOHN D. ELLIS

Assistant United States Attorneys

10

Attorneys for the

11

United States of America

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 3 of 26 Page ID #:569

1

TABLE OF CONTENTS

2 I. INTRODUCTION .......................................................................................................... 1

3 II. ARGUMENT ................................................................................................................. 1

4

A. Plaintiffs bear the burden of negating every possible rational basis for

section 6428(g); the Government has no burden .................................... ….1

5

B. Section 6428(g) does not run afoul of equal protection guarantees

6

because its exclusion of SSN holders who file joint tax returns with

their spouses without work-authorized SSNs is not irrational ..................... 2

7

1. Background: Income tax concepts embedded in the Internal

8

Revenue Code .................................................................................... 5

9

2. Background: The CARES Act ........................................................... 6

10

3. Congress could have reasonably excluded SSN holders who

filed joint returns with non-SSN holders from receiving advance

11

refunds ................................................................................................ 9

12

a. Administrative considerations relating to adjusted gross

income may explain plaintiffs’ exclusion from the advance

13

refund scheme…………………….………….........................10

14

b. Congress may have also excluded plaintiffs from the advance

refund scheme in order to effectuate the reconciliation

15

provisions in section 6428(e)(2)..………………..……..……13

16

c. Congress may have believed section 6428(g) was necessary to

effectuate section 6428(d)’s exclusion of

17

nonresident aliens………….…………………………….......13

18

C. Congress could reasonably have adopted language in section 6428(g) from

other Code provisions which exclude SSN holders who file joint tax returns

19

with non-SSN holders from receiving tax credits........................................14

20

D. Plaintiffs’ action should be dismissed with prejudice and without

discovery .................................................................................................. ..18

21

22 III. CONCLUSION ........................................................................................................... 19

23

24

25

26

27

28

i

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 4 of 26 Page ID #:570

1

TABLE OF AUTHORITIES

2 CASES

3 Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984) ........................................................4, 9-10

4 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) ............................... 2, 4, 9, 12, 17-18

5 Allied Concrete & Supply Co. v. Baker, 904 F.3d 1053 (9th Cir. 2018) ............... 2, 14-15

6 Armour v. City of Indianapolis, Ind., 566 U.S. 673 (2012) ............................ 3, 10, 14, 17

7 Crawford v. Antonio B. Won Pat Int’l Airport Auth.,

8

917 F.3d 1081 (9th Cir. 2019) ................................................................................ 3

9 FCC v. Beach Communications, 508 U.S. 307 (1993) ................................. 2-3, 14, 17-18

10 Fortuna Enterprises, L.P. v. City of Los Angeles,

11

673 F. Supp. 2d 1000 (C.D. Cal. 2008) ............................................................ 3, 14

12 Hooper v. California, 155 U.S. 648 (1895) .................................................................... 1-2

13 Heller v. Doe, 509 U.S. 312 (1993) ................................................................... 2, 4, 17-18

14 INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992) .................................................... 6

15 INS v. Chadha, 462 U.S. 919 (1983) ................................................................................ 1

16 Knight v. Commissioner, 552 U.S. 181 (2008) .......................................................... 5, 11

17 Krishna Lunch of S. Cal. v. Gordon, 797 F. App’x 311 (9th Cir. 2020) .......................... 2

18 Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011 (9th Cir. 2010) ............... 3

19 Mathews v. Diaz, 426 U.S. 67 (1976) ................................................................................ 9

20 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ........................................ 3

21 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ........................................... 1

22 Nordlinger v. Hahn, 505 U.S. 1 (1992) ...................................................................... 5, 18

23 New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979) .......................................... 4

24 Personnel Administrator v. Feeney, 442 U.S. 256 (1979) .............................................. 12

25 Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) .............. 12

26 Romer v. Evans, 517 U.S. 620 (1996) .............................................................................. 3

27 RUI One Corp. v. City of Berkeley, 371 F.3d 1137 (9th Cir. 2004) ........................... 3, 14

28

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1 Salameh v. Tarsadia Hotel, 726 F.3d 1124 (9th Cir. 2013) ............................................ 19

2 Trump v. Hawaii, -- U.S. --, 138 S. Ct. 2392 (2018) ......................................................... 3

3 United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020) ....................................... 3

4 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980).............................................................. 18

5 Vance v. Bradley, 440 U.S. 93 (1979) ........................................................................... 4-5

6

7 PUBLIC LAWS

8 Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. 116-136

9

(March 27, 2020) .................................................................................................... 6

10 The Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613

11

(Feb. 13, 2008) ...................................................................................................... 16

12 Heroes Earnings Assistance and Relief Tax Act of 2008, Pub L. No. 110-245,

13

122 Stat. 1624 (June 17, 2008) ............................................................................ 17

14 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub L. No.

15

104-193, 110 Stat. 2105 (Aug. 22, 1996) ............................................................ 15

16

17 STATUTES

18

Internal Revenue Code, 26 U.S.C.

19

§ 1 ................................................................................................................. 5

20

§ 2 ................................................................................................................. 5

21

§ 24 ............................................................................................................ 6-8

22

§ 32 .......................................................................................................... 6, 15

23

§ 61 ................................................................................................................ 5

24

§ 62 ......................................................................................................... 6, 11

25

§ 63 .............................................................................................................5-6

26

§ 112 ............................................................................................................. 12

27

§ 6013 ..................................................................................................... 5, 14

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1

§ 6428 .................................................................................................. passim

2

§ 7508 ......................................................................................................... 12

3

4 REGULATIONS

5 26 C.F.R. § 1.112-1.......................................................................................................... 12

6

7 LEGISLATIVE HISTORY

8 Joint Comm. on Taxation, Description of the Tax Provisions of Public Law 116-136,

9

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, JCX-12R-

10

20 9 (April 2020) ................................................................................................... 15

11 Joint Comm. on Taxation, Technical Explanation of the Revenue Provisions of H.R.

12

5140, the “Economic Stimulus Act of 2008” as Passed by the House of

13

Representatives and the Senate on February 7, 2008, JCX-16-08 (February

14

2008) ....................................................................................................................... 17

15 Joint Comm. on Taxation, Description of the Chairman’s Modification to the Provisions

16

of the “Economic Stimulus Act of 2008,” JCX-11-08 2 (January 2008) ............. 17

17 Joint Comm. on Finance, Budget Reconciliation Recommendations of the Committee on

18

Finance, 25-735 (July 1996) ................................................................................. 16

19 Joint Comm. on Taxation, Description of Tax Provisions Included in a Plan to Achieve a

20

Balanced Budget Submitted to the Congress by the President on January 6, 1996,

21

JCX-1-96 (January 1996) ...................................................................................... 16

22 Joint Comm. on Taxation, Description of the Tax and Health Insurance Reform

23

Provisions in the President’s Seven-Year Balanced Budget Proposal Released on

24

December 7, 1995, JCX-58-95, at 14 (December 1995) ...................................... 16

25 Joint Comm. on Taxation, Present Law and Issues Relating to the Earned Income Credit,

26

JCX-24-95, at 8 (June 1995) ................................................................................. 16

27

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1 H.R. Rep. No. 104-725 (1996) (Conf. Rep.) ................................................................... 16

2 H.R. Rep. No. 104-651 (1996) ........................................................................................ 16

3 166 Cong. Rec. 61, H1840-41 (daily ed. March 27, 2020) ............................................. 15

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This Court has determined that plaintiffs’ equal protection claim is subject to

4 rational-basis review and accordingly ordered the parties to submit briefing as to whether

5 26 U.S.C. § 6428(g) withstands such review. It does.

6

In conducting its rational-basis review, this Court must determine whether

7 Congress may have had a legitimate reason for excluding plaintiffs from the advance

8 refund scheme in section 6428(g) based on plaintiffs’ filing of joint tax returns with

9 individuals who were not authorized to work in the United States and therefore ineligible

10 for refunds or credits under section 6428. Plaintiffs bear the burden of demonstrating

11 that section 6428(g) is not rationally related to a legitimate governmental interest. The

12 Government, in contrast, has absolutely no evidentiary burden. In any event, plaintiffs

13 have not shown--and indeed, cannot show--that section 6428(g) is not related to a

14 legitimate governmental interest. That is because there are a number of permissible

15 reasons, including administrative considerations relating to adjusted gross income, why

16 Congress may have included the provision. Moreover, in enacting section 6428(g),

17 Congress likely borrowed from a tried-and-true statutory scheme that has been in place

18 since 1996, which is a rational basis in and of itself. Lastly, because rational-basis

19 review applies, no discovery is required.

20 II. ARGUMENT

21

A. Plaintiffs bear the burden of negating every possible rational basis for

22

section 6428(g); the Government has no burden

23

Acts of Congress, including section 6428(g), are presumed to be

24 constitutional. See INS v. Chadha, 462 U.S. 919, 944 (1983); Nat’l Fed’n of Indep. Bus.

25 v. Sebelius, 567 U.S. 519, 563 (2012) (“[E]very reasonable construction must be resorted

26 to, in order to save a statute from unconstitutionality.”) (quoting Hooper v. California,

27 155 U.S. 648, 657 (1895)). The Government “has no obligation to produce evidence to

28

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1 sustain the rationality of a statutory classification”; rather, “[t]he burden is on the one

2 attacking the legislative arrangement to negative every conceivable basis which might

3 support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotations omitted).

4 Thus, the burden is on plaintiffs to negate every single permissible basis on which

5 Congress might have enacted section 6428(g) in order to overcome the provision’s

6 presumption of constitutionality. See Aleman v. Glickman, 217 F.3d 1191, 1201 (9th

7 Cir. 2000) (quoting Heller, 509 U.S. at 320); see also Krishna Lunch of S. Cal. v.

8 Gordon, 797 F. App’x 311, 314 (9th Cir. 2020) (citing Heller, 509 U.S. at 320-21, and

9 affirming dismissal under rational-basis review although no actual reason for challenged

10 policy had ever been posited). The Government, in contrast, has no evidentiary burden.

11

Moreover, no evidence is required as to Congress’s intent in passing section

12 6428(g). Nor is fact-finding by the Court required to determine whether a rational basis

13 exists for the classification. The Supreme Court has held that it “never require[s] a

14 legislature to articulate its reasons for enacting a statute,” and that “it is entirely

15 irrelevant for constitutional purposes whether the conceived reason for the challenged

16 distinction actually motivated the legislature.” F.C.C. v. Beach Commc’ns, Inc. (Beach),

17 508 U.S. 307, 314-15 (1993). Thus, the Supreme Court has held “a legislative choice is

18 not subject to courtroom fact-finding and may be based on rational speculation

19 unsupported by evidence or empirical data.” Id. at 315.

20

B. Section 6428(g) does not run afoul of equal protection guarantees

21

because its exclusion of SSN holders who file joint tax returns with

22

their spouses without work-authorized SSNs is not irrational

23

A classification subject to rational-basis review “cannot run afoul of the Equal

24 Protection Clause if there is a rational relationship between the disparity of treatment and

25 some legitimate governmental purpose.” Allied Concrete & Supply Co. v. Baker, 904

26 F.3d 1053, 1060 (9th Cir. 2018) (quoting Heller, 509 U.S. at 320). Under rational-basis

27 review, a court must uphold a classification against an equal protection challenge “if

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1 there is any reasonably conceivable state of facts that could provide a rational basis” for

2 the classification. United States v. Mayea-Pulido, 946 F.3d 1055, 1059 (9th Cir. 2020)

3 (quoting Beach, 508 U.S. at 313); see also Johnson v. Rancho Santiago Cmty. Coll.

4 Dist., 623 F.3d 1011, 1031 (9th Cir. 2010).

5

In determining whether there is a rational basis for the challenged classification,

6 this Court need not determine the actual motivation of Congress or engage in fact-

7 finding as to the rationality of Congress’s conceivable motives. See Beach, 508 U.S. at

8 313; RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1155 (9th Cir. 2004); see also

9 Fortuna Enterprises, L.P. v. City of Los Angeles, 673 F. Supp. 2d 1000, 1013-14 (C.D.

10 Cal. 2008). Rather, a challenged provision will withstand rational-basis review if “there

11 is a plausible policy reason for the classification, the legislative facts on which the

12 classification is apparently based rationally may have been considered to be true by the

13 governmental decisionmaker, and the relationship of the classification to its goal is not

14 so attenuated as to render the distinction arbitrary or irrational.” Armour v. City of

15 Indianapolis, Ind., 566 U.S. 673, 681 (2012) (internal quotation and citation omitted).

16 Thus, “the inquiry is not whether the challenged action actually further[ed] a legitimate

17 interest; it is enough that the governing body could have rationally decided that the

18 action would further that interest.” Crawford v. Antonio B. Won Pat Int’l Airport Auth.,

19 917 F.3d 1081, 1095 (9th Cir. 2019) (emphasis omitted) (quoting Minnesota v. Clover

20 Leaf Creamery Co., 449 U.S. 456, 466 (1981)). Accordingly, statutes “hardly ever” fail

21 rational-basis review, and only do so when it “is impossible to ‘discern a relationship to

22 [a] legitimate state interest[]’ or the policy is ‘inexplicable by anything but animus.”’

23 Trump v. Hawaii, -- U.S. --, 138 S. Ct. 2392, 2420-21 (2018) (quoting Romer v. Evans,

24 517 U.S. 620, 632, 635 (1996)).

25

To survive rational-basis review, a statute must not be crafted with surgical

26 precision; rather, a classification will survive rational-basis review even if it is both

27 underinclusive and overinclusive. See Vance v. Bradley, 440 U.S. 93, 108 (1979); see

28

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1 also New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 (1979) (“[I]t is of no

2 constitutional significance that the degree of rationality is not as great with respect to

3 certain ill-defined subparts of the classification as it is with respect to the classification

4 as a whole.”). “The demand for perfection must inevitably compromise with the hard

5 facts of political life.” Vance, 440 U.S. at 93 n.26 (citation omitted). Accordingly, “[a]

6 classification does not fail rational-basis review simply because it is not made with

7 mathematical nicety or because in practice it results in some inequality.” Aleman, 217

8 F.3d at 1201 (internal quotations omitted). In short, a statutory scheme need not be “a

9 model of legislative logic” in order to survive rational-basis review. See id.

10

Moreover, the fact that harsh consequences may result from the statutory

11 provision is immaterial as long as a rational basis exists for the classification. See

12 Aleman, 217 F.3d at 1201 (“Although this classification . . . can operate quite harshly to

13 deprive deserving persons of the means of subsistence, we are compelled to conclude

14 that it survives the exceedingly low level of judicial scrutiny mandated by the rational

15 basis test.”); Alcaraz v. Block, 746 F.2d 593, 605 (9th Cir. 1984) (“Equal protection

16 analysis properly deals with the bona fides of the bases of certain legislative

17 classifications. All legislation classifies and affects what parties view as ‘weighty’

18 interests. But the weightiness of the interests affected only goes to the law’s effect on

19 the people classified, not to the legitimacy of the classification itself. An equal

20 protection theory that looked merely to the weightiness of interests affected would thus

21 conflate the validity of the lines the law has drawn with the effect of those lines on

22 various constituencies.”)

23

Finally, “[r]ational-basis review in equal protection analysis ‘is not a license for

24 courts to judge the wisdom, fairness, or logic of legislative choices.’” Aleman, 217 F.3d

25 at 1200 (quoting Heller, 509 U.S. at 319). Such a deferential standard of review is

26 required when Courts review statutes based on rational-basis review because the

27 “Constitution presumes that, absent some reason to infer antipathy, even improvident

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1 decisions will eventually be rectified by the democratic process and that judicial

2 intervention is generally unwarranted no matter how unwisely we may think a political

3 branch has acted.”’ Nordlinger v. Hahn, 505 U.S. 1, 17-18, (1992) (quoting Vance, 440

4 U.S. at 97).

5

1. Background: Income tax concepts embedded in the Internal Revenue

6

Code

7

Computing an individual’s federal income tax liability is a multistep endeavor.

8 The first step is selecting a filing status. See 26 U.S.C. § 1(a)-(d). Some individuals,

9 such as unmarried individuals with no dependents, have only one filing status--single--

10 available to them. See 26 U.S.C. § 1(c). Other individuals have options. An individual

11 who is married as of December 31 of the tax year, for instance, may have as many as

12 three filing statuses from which to select. Such an individual may elect to file a joint tax

13 return with her spouse. See 26 U.S.C. § 1(a). Or she may elect to file a separate tax

14 return from her spouse. See 26 U.S.C. § 1(d). Lastly, she may, in certain instances not

15 relevant here, be treated as unmarried and elect to file using the head of household filing

16 status. See 26 U.S.C. §§ 1(b), 2(b).

17

Each filing status is associated with graduated tax rates set by Congress. 26

18 U.S.C. § 1(a)-(d). The ultimate amount of tax an individual must pay is based on her

19 “taxable income,” which is a defined term in the Internal Revenue Code (Title 26,

20 U.S.C.). See 26 U.S.C. §§ 1, 63. Computing taxable income “begins with a

21 determination of ‘gross income,’ capaciously defined as ‘all income from whatever

22 source derived.’” Knight v. Commissioner, 552 U.S. 181, 184 (2008) (quoting 26 U.S.C.

23 § 61(a)). For married individuals filing a joint return, gross income will include the

24 income received by both spouses. See 26 U.S.C. § 6013(d)(3) (“if a joint return is made,

25 the tax shall be computed on the aggregate income and the liability with respect to the

26 tax shall be joint and several”).

27

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1

Many tax benefits, including the earned income credit (EIC), 26 U.S.C. § 32, and

2 child tax credit, 26 U.S.C. § 24, are computed, at least in part, using a taxpayer’s

3 adjusted gross income. See 26 U.S.C. §§ 32(f)(2) and 24(b). To arrive at adjusted gross

4 income, gross income is reduced by any “above-the-line” deductions for which a

5 taxpayer qualifies. See 26 U.S.C. § 62(a); Knight, 552 U.S. at 184. Above-the-line

6 deductions include (among other things) certain educator expenses, losses from the sale

7 or exchange of property, deductions attributable to rents and royalties, and retirement

8 savings deductions. See 26 U.S.C. § 62(a). Like income, above-the-line deductions are

9 aggregated for joint filers. Such deductions are “matters of legislative grace,” and a

10 taxpayer must both claim the deduction and demonstrate that she is entitled to it in order

11 to receive a tax benefit. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).

12 To finally arrive at taxable income, an individual’s adjusted gross income is reduced by

13 “below-the-line” deductions (i.e., allowable deductions other than the above-the-line

14 deductions identified in section 62(a)). See 26 U.S.C. § 63; Knight, 552 U.S. at 184.

15

2. Background: The CARES Act

16

Presumably aware of these income tax concepts, Congress passed and the

17 President signed into law into law the Coronavirus Aid, Relief, and Economic Security

18 (CARES) Act, Pub. L. 116-136 (March 27, 2020). As suggested by its title, the CARES

19 Act was an economic stimulus program designed to mitigate economic fallout from the

20 worldwide coronavirus pandemic.

21

The CARES Act added section 6428 to the Internal Revenue Code (Title 26,

22 U.S.C.). Subsection (a) of section 6428 permits an “eligible individual” to receive a

23 refundable tax credit for the 2020 tax year. See 26 U.S.C. § 6428(a) (“there shall be

24 allowed as a credit against the tax imposed by subtitle A for the first taxable year

25 beginning in 2020 . . .”) and (b) (providing that the credit is refundable). An “eligible

26 individual” does not include (among other individuals) any individual who is a

27

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1 nonresident alien. See 26 U.S.C. § 6428(d)(1). Resident aliens, however, are eligible to

2 receive the credit (assuming they otherwise qualify). See id.

3

The amount of the CARES Act credit is $2,400 in the case of eligible individuals

4 filing a joint return and $1,200 for all other eligible taxpayers (including single taxpayers

5 or taxpayers who use the married filing separately filing status), subject to a limitation

6 based on adjusted gross income described below. 26 U.S.C. §§ 6428(a), (c). The credit

7 is increased by $500 for each qualifying child (within the meaning of 26 U.S.C. § 24(c))

8 of the individual. 26 U.S.C. § 6428(a)(2).

9

Although the CARES Act credit is based on an individual’s 2020 tax year

10 attributes, the IRS may issue a CARES Act credit as an “advance refund or credit.” 26

11 U.S.C. § 6428(f). Congress directed the IRS to issue such refunds or credits “as rapidly

12 as possible,” but not later than December 31, 2020. The advance refund amount under

13 the statute “is the amount that would have been allowed as credit under this section for

14 such taxable year if [the CARES Act credit provision] . . . had applied to such taxable

15 year.” 26 U.S.C. § 6428(f)(2). Because the advance refunds are computed before the

16 2020 tax year has ended, subsection (f)(1) directs the IRS to first use an individual’s

17 2019 tax return to determine an individual’s eligibility for an advance refund. If an

18 individual has not filed a 2019 tax return when the IRS makes its determination as to

19 whether an individual should receive an advance refund, the IRS may use the

20 individual’s 2018 tax return. See 26 U.S.C. § 6428(f)(5)(A). Lastly, if the individual

21 has not filed a tax return for 2019 or 2018, the IRS may use information provided for tax

22 year 2019 in Form SSA-1099, Social Security Benefit Statement, or Form RRB-1099,

23 Social Security Equivalent Benefit Statement, to determine the advance refund, if any,

24 that the individual should receive. See 26 U.S.C. § 6428(f)(5)(B).

25

The amount of any CARES Act credit, whether issued as a credit in 2021 or as an

26 advance refund in 2020, is computed using a taxpayer’s adjusted gross income (among

27 other tax attributes). See 26 U.S.C. § 6428(c). Subsection (c) provides that the amount

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1 of the CARES Act credit “shall be reduced (but not below zero) by 5 percent of so much

2 of the taxpayer’s adjusted gross income as exceeds $150,000 in the case of a joint return,

3 $112,500 in the case of a head of household, and $75,000 in the case of a taxpayer who

4 does not file a joint return or file using the head of household filing status.” Id.

5

Subsection (e) contains two related provisions. Subsection (e)(1) provides that the

6 amount of any advance refund an individual receives must be reconciled with the

7 CARES Act credit reported on an individual’s 2020 tax return. It specifically provides

8 that the amount of CARES Act credit reported on an individual’s 2020 tax return “shall

9 be reduced (but not below zero) by the aggregate refunds and credits made or allowed to

10 the taxpayer under subsection (f).” 26 U.S.C. § 6428(e)(1). And subsection (e)(2)

11 provides that “in the case of a refund or credit made under subsection (f) with respect to

12 a joint return, half of such refund or credit shall be treated as having been made or

13 allowed to each individual filing such return.” 26 U.S.C. § 6428(e)(2).

14

If the CARES Act credit is issued as an advance refund before December 31,

15 2020, the amount of the credit will be computed based on the individual’s adjusted gross

16 income on the individual’s 2019 or 2018 tax return. See 26 U.S.C. § 6428(f)(5). In that

17 case, the taxpayer will need to reconcile the amount of the advance refund received and

18 the amount of the credit (if any) to which she is entitled. See 26 U.S.C. § 6428(e)(1). If,

19 on the other hand, the credit is issued after 2020 using the taxpayer’s tax return for 2020,

20 the taxpayer will be allowed the entire amount of the credit (subject to the adjusted gross

21 income limitations in subsection (c)). See 26 U.S.C. § 6428(a).

22

Lastly, section 6428(g) provides that no CARES Act credit shall be allowed to an

23 “eligible individual who does not include on the return of tax for the taxable year” her

24 “valid identification number,” “in the case of a joint return, the valid identification

25 number of such individual’s spouse,” and the valid identification number of any

26 qualifying child “taken into account” for purposes of the credit. A valid identification

27 number means an SSN that is valid for employment (see 26 U.S.C. § 24(h)(7)) or in the

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1 case of a qualifying child who is legally adopted or placed for adoption, the adoption

2 taxpayer identification number of such child. 26 U.S.C. § 6428(g)(2). It thus excludes

3 from the advance refund scheme individuals who hold SSNs valid for employment and

4 filed a joint tax return for 2019 or 2018 (whichever may be the case) with an individual

5 who did not have an SSN valid for employment.

6

Married individuals filing a joint return in which at least one spouse was a

7 member of the United States military and at least one spouse had an SSN valid for

8 employment during the relevant taxable year are excepted from the general rule in

9 section 6428(g)(1)(B) that in the case of a joint return, the return must include a valid

10 identification number for each spouse. See 26 U.S.C. § 6428(g)(3). As such, military

11 families who have filed tax returns using the married filing jointly filing status can

12 receive up to the full CARES Act credit amount of $2,400 (plus $500 for each qualifying

13 child) even if only one of the joint filers has an SSN valid for employment.

14

3. Congress could have reasonably excluded SSN holders who filed

15

joint returns with non-SSN holders from receiving advance refunds

16

Plaintiffs do not challenge the exclusions of their respective spouses from section

17 6428’s advance refund scheme. Such a challenge would in any event fail: Congress has

18 the power of the purse and may for reasons of fiscal policy condition the provision of

19 benefits on the basis of alienage or work authorization. See Mathews v. Diaz, 426 U.S.

20 67, 83 n. 22 (1976) (“fiscal integrity” is a legitimate purpose of limiting aliens eligible

21 for benefit); see also Aleman, 217 F.3d at 1203 (limiting expenditures on public benefit

22 programs for aliens is a legitimate government purpose); Alcaraz, 746 F.2d at 606

23 (concluding that requiring an SSN for all adult members of a household for a child to be

24 eligible for programs withstood rational-basis review despite discriminating against

25 children of “illegal aliens” because “reducing fraud in entitlement programs preserves

26 limited resources for those who are truly deserving. More efficient administration of

27

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1 entitlement programs saves such programs from the ravages of public cynicism that

2 could lead to their repeal.”).

3

The issue, then, is whether Congress might have had a permissible basis for also

4 excluding plaintiffs from the advance refund scheme on the basis that they had filed joint

5 tax returns with individuals who were not authorized to work in the United States and

6 therefore ineligible for refunds or credits under section 6428. The scheme set forth in

7 section 6428, viewed as a whole, suggests a number of permissible reasons why

8 Congress may have elected to deny plaintiffs advance refunds.

9

a. Administrative considerations relating to adjusted gross

10

income may explain plaintiffs’ exclusion from the advance

11

refund scheme

12

“[A]dministrative considerations can justify a tax-related distinction.” Armour v.

13 City of Indianapolis, Ind., 566 U.S. 673, 682 (2012). These considerations include

14 complexity and cost. Id. Congress may have excluded joint filers like plaintiffs from the

15 advance refund scheme set forth in section 6428 in order to reduce the complexity and

16 cost of administering the CARES Act. As explained above, Congress apparently

17 intended to provide financial relief to individuals affected by the coronavirus pandemic

18 through section 6428’s advance refund scheme. It accordingly authorized the IRS to

19 issue advance refunds to eligible individuals “as rapidly as possible.” See 26 U.S.C. §

20 6428(f)(3)(A). Computing and issuing refunds to millions of individuals, however, is no

21 small task. Congress did not require individuals to apply for advance refunds under

22 section 6428. Instead, Congress authorized the IRS to rely on tax information from

23 individuals’ 2019 or 2018 tax returns, if available, to compute and issue advance

24 refunds.

25

Plaintiffs suggest that the IRS could have issued SSN holders who filed joint tax

26 returns with individuals without work-authorized SSNs advance refunds as if the SSN

27 holder had filed her most recent tax return using the married filing separately filing

28

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1 status. How the IRS could be expected to compute such a credit without that separate

2 tax return (as well as the separate tax return of the SSN holder’s spouse), however, is

3 unclear. As we have explained, section 6428 instructs the IRS to compute the amount of

4 an advance refund using the adjusted gross income from an eligible individual’s most

5 recent tax return. But adjusted gross income is defined under the Internal Revenue Code

6 as gross income less allowed above-the-line deductions. See 26 U.S.C. § 62; Knight,

7 552 U.S. at 184. Because joint filers aggregate their incomes and above-the-line

8 deductions, the IRS, as a practical matter, would be unable to divine the adjusted gross

9 income a joint filer would have had if she had filed using the married filing separately

10 filing status. It would not, for instance, know which deductions reported on the joint

11 return would have been claimed (and by which spouse) if the taxpayer had filed

12 separately. It would also not know which qualifying children would have been claimed

13 on a separate return for purposes of the $500 additional credit set forth in section

14 6428(a)(2). Congress may have rationally determined that requiring the IRS to compute

15 the theoretical eligibility of joint filers like plaintiffs would have been too much of an

16 administrative burden on the IRS and accordingly excluded them from section 6428’s

17 advance refund scheme.1

18

That military families are excepted from the requirement that both individuals

19 filing a joint tax return have an SSN valid for employment does not alter this conclusion.

20 Joint filers are eligible to receive the full amount of any advance refund if at least one

21 spouse was a member of the Armed Forces of the United States during the taxable year,

22 and at least one spouse has an SSN valid for employment. See 26 U.S.C. § 6428(g)(3).

23 As such, the IRS is not required to determine whether joint filers described in section

24

25

26

1 As the Government explained in other filings, plaintiffs and similarly situated individuals may elect to file their 2020 tax return separately in order to obtain a CARES

27 Act credit (assuming they otherwise qualify).

28

11

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 19 of 26 Page ID #:585

1 6428(g)(3) would have qualified for an advance refund if they had filed separate tax

2 returns; it can simply rely on their joint tax return to determine whether they are eligible

3 to receive an advance refund. And although plaintiffs have not challenged their

4 exclusion from section 6428’s advance refund scheme on the ground that military

5 members filing joint returns are not so excluded, the United States “has a long standing

6 policy of compensating veterans for their past contributions by providing them with

7 numerous advantages. This policy has ‘always been deemed to be legitimate.’” Regan

8 v. Taxation With Representation of Washington, 461 U.S. 540, 550-51 (1983) (quoting

9 Personnel Administrator v. Feeney, 442 U.S. 256, 279 n.25 (1979)).2

10

To summarize, the amount of the credit under section 6428 is based (among other

11 things) on the adjusted gross income and qualifying children reported on an individual’s

12 2019 or 2018 tax return. Congress may have simply declined for purposes of

13 administrative expediency to require that the IRS unwind an individual’s joint tax return

14 and determine whether she would have qualified for an advance refund if she had filed

15 separately. Although Congress’s decision has the effect of excluding plaintiffs from an

16 advance refund they would have otherwise qualified for, “[a] classification does not fail

17 rational-basis review because it is not made with mathematical nicety or because in

18 practice it results in some inequality.” Aleman, 217 F.3d at 1201 (internal quotations

19 omitted). For that reason, section 6428(g) should be sustained.

20

21

22

23

24

2 Numerous other provisions in the Internal Revenue Code provide special benefits to military members. For example, military members’ combat pay is tax-free,

25

see 26 U.S.C. § 112 and 26 C.F.R. § 1.112-1, and certain members of the military, such as those who served in a combat zone, can postpone most tax deadlines. See 26 U.S.C. §

26

7508. See https://www.irs.gov/newsroom/members-of-the-armed-forces-get-special-taxbenefits for more information on special tax benefits provided to members of the Armed

27 Forces.

28

12

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 20 of 26 Page ID #:586

1

b. Congress may have also excluded plaintiffs from the advance

2

refund scheme in order to effectuate the reconciliation

3

provisions in section 6428(e)(2)

4

It is also possible that Congress believed excluding joint filers like plaintiffs from

5 the advance refund scheme in subsection (f) was necessary to effectuate the

6 reconciliation provisions set forth in 26 U.S.C. § 6428(e)(2). That provision, as

7 described above, provides that “in the case of a refund or credit made or allowed under

8 subsection (f) with respect to a joint return, half of such refund or credit shall be treated

9 as having been made or allowed to each individual filing such return.” If an advance

10 refund in any amount were issued with respect to a joint return in which only one filer

11 held an SSN valid for employment, half of the refund would be allocated to the ineligible

12 spouse whom Congress permissibly excluded from section 6428’s advance refund

13 scheme. Plaintiffs, for instance, insist that the IRS should have issued them advance

14 refunds of at least $1,200. If the refunds that they suggest were computed based on a

15 joint tax return, however, section 6428(e)(2) would require half of the advance refunds to

16 “be treated as having been made or allowed” to individuals without an SSN, thus

17 contradicting subsection (g)(1), which provides that “[n]o credit shall be allowed” for

18 such individuals. Congress may have rationally determined that the identification

19 number requirement in subsection (g) was necessary to ensure that no CARES Act credit

20 inured under subsection (e) (as an advance refund or otherwise) to an individual who

21 was not authorized to work in the United States. Whether Congress could have selected

22 a better method to effectuate this goal is not at issue.

23

c. Congress may have believed section 6428(g) was necessary to

24

effectuate section 6428(d)’s exclusion of nonresident aliens

25

Congress may have rationally determined that subsection (g)’s SSN requirement

26 was necessary to effectuate the exclusion of nonresident aliens from section 6428’s

27 statutory scheme under 26 U.S.C. § 6428(d)(1). Nonresident aliens, many of whom do

28

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Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 21 of 26 Page ID #:587

1 not have and are not entitled to receive SSNs valid for employment, are generally

2 prohibited from filing joint federal income tax returns. See 26 U.S.C. § 6013(a)(1).

3 However, nonresident aliens who are married to a citizen or resident of the United States

4 may elect with her spouse to be treated as a resident alien for tax purposes and thereby

5 file a joint federal income tax return. See 26 U.S.C. § 6013(g). Such an election is valid

6 until it is revoked by either the alien or her spouse, or by another event enumerated in

7 section 6013(g)(4), including the death of one of the taxpayers or their legal separation.

8 See 26 U.S.C. § 6013(g)(4)(A). Congress may have rationally determined that requiring

9 each joint filer to have an SSN valid for employment would prevent the advance refunds

10 from being issued to nonresident aliens who elected be treated as resident aliens on the

11 tax return used to generate the advance refund but later terminated the election on

12 account of revocation, death, or legal separation. Again, whether Congress could have

13 selected a better method to effectuate this goal is not at issue.

14

C. Congress could reasonably have adopted language in section 6428(g)

15

from other Code provisions which exclude SSN holders who file joint

16

tax returns with non-SSN holders from receiving tax credits

17

As explained above, this Court need not determine the actual motivation of

18 Congress or engage in fact-finding as to the rationality of Congress’s conceivable

19 motives. See RUI, 371 F.3d at 1155; Fortuna Enterprises, 673 F. Supp. 2d at 1013-14.

20 And a legislature does not need to “actually articulate at any time the purpose or

21 rationale supporting its classification.” Armour, 566 U.S. at 685 (quotation omitted).

22 Courts have nevertheless considered the likely genesis of statutory classifications in

23 determining whether they should survive rational-basis review. See Beach, 508 U.S. at

24 317 (finding it plausible that because Congress “borrowed” language from prior

25 administrative scheme that it also adopted earlier rationale to overcome equal protection

26 challenge); Allied Concrete, 904 F.3d at 1066 (looking to legislative history when

27

28

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1 determining plaintiffs had “not negated every conceivable justification” and concluding

2 statute passed the rational-basis test and did not violate the Equal Protection Clause).

3

There is no contemporaneous legislative history, such as a committee report or a

4 technical explanation, explaining Congress’s rationale for section 6428(g). See Joint

5 Comm. on Taxation, Description of the Tax Provisions of Public Law 116-136, The

6 Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, JCX-12R-20 (April

7 2020) at 1 n.2 (“On March 25, 2020, the Senate passed an amendment in the nature of a

8 substitute to H.R. 748. On March 27, 2020, the House passed the bill and the President

9 signed the bill. Neither the Senate amendment nor the House bill has contemporaneous

10 legislative history such as a committee report or a technical explanation.”) and 9

11 (discussing identification number requirement but not its rationale).3

12

The language in section 6428(g) that requires both spouses to provide on their

13 joint tax return SSNs valid for employment in order to receive an advance refund is

14 almost identical to language from the 1996 amendments to the EIC found in the Personal

15 Responsibility and Work Opportunity Reconciliation Act of 1996, Pub L. No. 104-193, §

16 451(b)(1), 110 Stat. 2105 (Aug. 22, 1996) codified at 26 U.S.C. § 32(c)(1)(E), (d) &

17 (m)4. As explained in a Joint Committee on Taxation report, Congress imposed an SSN

18 requirement as a requirement for the EIC because “[it] did not believe that individuals

19

20

21 22 3 The Congressional Record contains a lone relevant floor statement: 166 Cong. Rec. 61,
H1840-41 (daily ed. March 27, 2020) (statement of Rep. TJ Cox) (“I am disappointed 23 about this bill’s glaring shortcomings which must be remedied in a future bill. This bill
punishes mixed-status households and denies some American citizens benefits they 24 deserve.”) 25 4 Section 32(c)(1)(E) does not reference married filing jointly because the EIC can only
be claimed by married individuals filing jointly (see section 32(d)). 26 U.S.C. § 32(m) 26 provides “[A] taxpayer identification number means a social security number.”

27

28

15

Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 23 of 26 Page ID #:589

1 who are not authorized to work in the United States should be able to claim the credit.”5

2 Joint Committee on Taxation proposals regarding the legislation consistently contained

3 the language prohibiting the EIC from being claimed on any joint return where both

4 filers did not provide a SSN that is substantially equivalent to the language in section

5 6428(g).6

6

The Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613 (Feb. 13,

7 2008), also used substantially similar language to the 1996 EIC amendments and current

8 section 6428(g), disallowing tax credits to individuals without SSNs valid for

9 employment and requiring married joint filers to both have such SSNs in order to obtain

10 the credit. Congress apparently intended to exclude individuals not authorized to work

11

12

13 5 See Joint Comm. on Finance, Budget Reconciliation Recommendations of the

14 Committee on Finance, 25-735, at 143 (July 1996) (“The [Finance] Committee does not

believe that individuals who are not authorized to work in the United States should be

15 able to claim the credit.”). Other legislative history from the 1996 Act is consistent. See

also H.R. Rep. No. 104-725, at 392 (1996) (Conf. Rep.) (“earned income credit denied to

16

individuals not authorized to be employed in the United States”); H.R. Rep. No. 104651, at 1457 (1996) (“The [Budget] Committee does not believe that individuals who are

17 not authorized to work in the United States should be able to claim the credit.”).

18 6 See Joint Comm. on Taxation, Description of Tax Provisions Included in a Plan to Achieve a Balanced Budget Submitted to the Congress by the President on January 6,
19 1996, JCX-1-96, at 97 (January 1996) (“Description of Proposal[:] Individuals would not be eligible for the credit if they do not include their taxpayer identification number (and,
20 if married, their spouse’s taxpayer identification number) on their return. . . [T]axpayer identification number would be defined as a social security number[.]”) Joint Comm. on
21 Taxation, Description of the Tax and Health Insurance Reform Provisions in the President’s Seven-Year Balanced Budget Proposal Released on December 7, 1995, JCX-
22 58-95, at 14 (December 1995) (“Description of Proposal[:] . . . Individuals would not be eligible for the credit if they do not include their taxpayer identification number (and, if
23 married, their spouse’s taxpayer identification number) on their return. . . . [T]axpayer identification number would be defined as a social security number[.]”); Joint Comm.
24 on Taxation, Present Law and Issues Relating to the Earned Income Credit, JCX-24-95, at 8 (June 1995) (“Description of Proposal[][:] . . . Taxpayers would not be eligible for
25 the EIC if they do not include their taxpayer identification number (and, if married, their spouse's taxpayer identification number) on their tax return. . . . [T]axpayer identification
26 number would be defined as a social security number[.]”).

27

28

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Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 24 of 26 Page ID #:590

1 in the United States from obtaining the credit.7 The language in current section

2 6428(g)(3) providing for credits to military service members, even in cases where both

3 spouses do not have SSNs valid for employment and the couple files jointly, mirrors the

4 language in the 2008 economic stimulus provisions.8

5

Here, the exclusionary language of section 6428(g) that plaintiffs challenge is

6 almost identical to language from another section of the Internal Revenue Code

7 providing EICs that has been in effect for decades. A decision by Congress to “borrow”

8 language in effect and administered by the Internal Revenue Service since 1996 would

9 be a rational administrative choice to implement the advance refund and tax credit

10 scheme in the CARES Act expediently. See Beach, 508 U.S. at 317 (looking at language

11 “borrowed” by Congress in positing hypothetical rationality and upholding statute);

12 Armour, 566 U.S. at 682 (administrative implementation concerns can justify

13 distinctions under rational-basis review). It cannot be said Congress was irrational to use

14 longstanding legislative language to implement the CARES Act in ways concomitant

15 with other tax credit provisions in the Code. Whether or not Congress could have

16 tailored the restriction in current section 6428(g) to be more precise or fair than the

17 language it borrowed from other Code provisions is irrelevant for purposes of rational-

18 basis review. See Aleman, 217 F.3d at 1201 (quoting Heller, 509 U.S. at 321). The

19

20

7 See Economic Stimulus Act of 2008, Pub. L. No. 110-185, § 6428(h), 122 Stat. 613, 615 (2008); Joint Comm. on Taxation, General Explanation of Tax Legislation Enacted

21

in the 110th Congress, JCS-1-09 77 (March 2009) (explaining Economic Stimulus Act of 2008’s identification number requirement); Joint Comm. on Taxation, Technical

22

Explanation of the Revenue Provisions of H.R. 5140, the “Economic Stimulus Act of 2008” as Passed by the House of Representatives and the Senate on February 7, 2008,

23

JCX-16-08 (February 2008) (technical explanation of the Economic Stimulus Act of 2008, echoing language from JCS-1-09); Joint Comm. on Taxation, Description of the

24

Chairman’s Modification to the Provisions of the “Economic Stimulus Act of 2008”, JCX-11-08 2 (January 2008) (explaining modifications).

25 8 See Heroes Earnings Assistance and Relief Tax Act of 2008, Pub L. No. 110-245, §

26

101, 122 Stat. 1624, 1625 (June 17, 2008) (amending 2008’s section 6428(g) to make taxpayers filing joint returns eligible for rebates when at least one spouse has an SSN

27 and at least one spouse is in the military).

28

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Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 25 of 26 Page ID #:591

1 same goes for the wisdom or the fairness of the provision itself. See Nordlinger, 505

2 U.S. at 17-18; Aleman, 217 F.3d at 1200. Accordingly, the constitutionality of section

3 6428(g) should be upheld.

4

D. Plaintiffs’ action should be dismissed with prejudice and without

5

discovery

6

Courts dismiss equal protection claims for failure to state a claim upon which

7 relief can be granted when plaintiffs fail to overcome the presumption of

8 constitutionality and rationality afforded to a statute subject to rational-basis review. See

9 Aleman, 217 F.3d at 1201. The Government has posited, despite having no obligation to

10 do so, plausible reasons, including administrative expediency, why Congress might have

11 excluded individuals like plaintiffs from the advance refund scheme in section 6428. As

12 such, plaintiffs cannot meet their burden to show that there was no rational basis for the

13 classification. Moreover, because under rational-basis review a reason need only be

14 plausible and not factual, discovery regarding rational basis is not warranted. See Beach,

15 508 U.S. at 314-15 (“[A] legislative choice is not subject to courtroom fact-finding and

16 may be based on rational speculation unsupported by evidence or empirical data.”).

17

In addition, because the Government has demonstrated multiple plausible rational

18 bases for the challenged classification, the Government’s motion to dismiss for failure to

19 state a claim should be granted.9 See U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179

20 (1980) (holding that where a plausible explanation has been given, it is irrelevant

21 whether that reasoning was in fact the basis of Congress’s enactment of the legislation,

22 and the “inquiry is at an end.”). Finally, because plaintiffs have already amended their

23 complaint in response to the Government’s opposition to plaintiffs’ application for

24

25 9 Counsel for the Government understood from the July 13, 2020, hearing on this matter

26

that this brief should supplement its motion to dismiss. To the extent counsel misunderstood the procedural posture of this case, this memorandum is submitted solely

27 as briefing per the Court’s instructions (ECF 50).

28

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Case 8:20-cv-00858-SVW-JEM Document 54 Filed 07/20/20 Page 26 of 26 Page ID #:592

1 temporary restraining order, the dismissal of their case should be with prejudice. See

2 Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (“A district court’s

3 discretion to deny leave to amend is particularly broad where the plaintiff has previously

4 amended.”) (quotation omitted). Additionally, it is unclear how plaintiffs could amend

5 their complaint to state a claim under rational-basis review.

6 III. CONCLUSION

7

For the reasons stated in the Government’s motion, reply, and this brief, plaintiffs’

8 first amended complaint fails to state a claim upon which relief can be granted.

9 Plaintiffs’ action should be dismissed with prejudice.

10

11 Dated: July 20, 2020

Respectfully submitted,

12

NICOLA T. HANNA

United States Attorney

13

THOMAS D. COKER

Assistant United States Attorney

14

Chief, Tax Division

15

/s/ John D. Ellis

MELISSA BRIGGS

16

JOHN D. ELLIS

Assistant United States Attorneys

17

Attorneys for the United States of America

18

19

20

21

22

23

24

25

26

27

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19

 
 Case 8:20-cv-00858-SVW-JEM Document 56 Filed 07/27/20 Page 1 of 5 Page ID #:593

1 NICOLA T. HANNA

United States Attorney

2 THOMAS D. COKER

Assistant United States Attorney

3 Chief, Tax Division

MELISSA BRIGGS (Cal. Bar No. 320697)

4 JOHN D. ELLIS (Cal. Bar No. 322922)

Assistant United States Attorneys

5

Federal Building, Suite 7211

300 North Los Angeles Street

6

Los Angeles, California 90012

Telephone: (213) 894-6165

7

(213) 894-2740

Facsimile: (213) 894-0115

8

E-mail: melissa.briggs2@usdoj.gov

john.ellis3@usdoj.gov

9

Attorneys for the

10 United States of America

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

Opposition to Plaintiffs’ Motion to Proceed

16 v.

Using Pseudonyms (ECF 35)

17

Hearing Date: August 17, 2020

DONALD J. TRUMP, et al.,

Time:

1:30 p.m.

18

Courtroom: 10A

Defendants.

Location:

350 W. 1st Street

19

Los Angeles, CA 90012

20

Hon. Stephen V. Wilson

21

22

23

24

25

26

27

28

Case 8:20-cv-00858-SVW-JEM Document 56 Filed 07/27/20 Page 2 of 5 Page ID #:594

1

The United States of America (Government) hereby submits its Opposition to

2 Plaintiffs’ Motion to Proceed Using Pseudonyms (motion, ECF 35).

3

4 Dated: July 27, 2020

Respectfully submitted,

5

NICOLA T. HANNA

United States Attorney

6

THOMAS D. COKER

Assistant United States Attorney

7

Chief, Tax Division

8

/s/ John D. Ellis

MELISSA BRIGGS

9

JOHN D. ELLIS

Assistant United States Attorneys

10

Attorneys for the

11

United States of America

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Case 8:20-cv-00858-SVW-JEM Document 56 Filed 07/27/20 Page 3 of 5 Page ID #:595

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Plaintiffs seek an order authorizing them (as well as the putative class) to litigate

4 this case using pseudonyms. (ECF 35.) However, plaintiffs provide no evidence

5 describing threatened harm or reasonable fear specific to their particular circumstances.

6 Rather, plaintiffs rely exclusively on generalities derived from various internet resources.

7 Because plaintiffs have not proven circumstances justifying departure from the ordinary

8 presumption that litigants must use their true names, their motion should be denied.

9 II. ARGUMENT

10

Because of “the paramount importance of open courts[,] . . . the default

11 presumption is that the plaintiffs will use their true names”. Doe v. Kamehameha

12 Sch./Bernice Pauahi Bishop Estate (Kamehameha), 596 F.3d 1036, 1046 (9th Cir. 2010).

13 Allowing a party to proceed pseudonymously, then, is the “exception, rather than the

14 rule” in the Ninth Circuit. Doe v. Ayers, 789 F.3d 944, 946 (9th Cir. 2015). In

15 determining whether to allow a litigant to proceed pseudonymously, a district court must

16 balance five factors: “‘(1) the severity of the threatened harm, (2) the reasonableness of

17 the anonymous party’s fears, . . . (3) the anonymous party’s vulnerability to []

18 retaliation,’ (4) the prejudice to the opposing party, and (5) the public interest.”

19 Kamehameha, 596 F.3d at 1042 (9th Cir. 2010) (ellipsis in original) (quoting Does I

20 Thru XXIII v. Advanced Textile Corp., 214 F.3d 1068, 1069 (9th Cir. 2000)). But “[t]he

21 two most important factors” are the “severity of the threatened harm and the

22 reasonableness of the plaintiffs’ fears.” Kamehameha, 596 F.3d at 1043.

23

Plaintiffs contend that there are “exceptional circumstances” which would allow

24 them to litigate using pseudonyms. Plaintiffs state that they “are vulnerable parties and

25 are forced to proceed anonymously as a result of the immigration status of their

26 respective spouses, who include in many instances, but are not limited to, undocumented

27 immigrants.” (ECF 35 at 8.) Plaintiffs’ motion refers to and relies on publications

28

1

Case 8:20-cv-00858-SVW-JEM Document 56 Filed 07/27/20 Page 4 of 5 Page ID #:596

1 describing general implications and impacts of the United States’ immigration policies.

2 Plaintiffs, however, do not explain why pseudonymity is appropriate for their particular

3 circumstances. Their motion is not supported by declarations or any other evidence

4 regarding specific threatened harm against plaintiffs, much less evidence sufficient for

5 the Court to judge the severity of the threatened harm and the reasonableness of each

6 plaintiff’s fears. See Kamehameha, 596 F.3d at 1043-45 (affirming district court’s

7 determination that plaintiffs’ fear was not reasonable and the denial of plaintiffs’ motion

8 to proceed using pseudonyms).

9

The Government notes that there are similarly situated plaintiffs pursuing similar

10 cases against the Government. However, the plaintiffs in the other cases have generally

11 litigated using their true names. In both Amador v. Mnuchin, 1:20-cv-01102 (D. Md.),

12 and Uzoegwu v. Mnuchin, 1:20-cv-03264 (S.D.N.Y.), the named plaintiffs have

13 identified themselves. In R.V. v. Mnuchin, 8:20-cv- 01148 (D. Md.), the plaintiffs are

14 proceeding pseudonymously in accordance with the judicial protection traditionally

15 provided to minors by Federal Rule of Civil Procedure 5.2. It is unclear why the

16 plaintiffs here would require anonymity when the named plaintiffs in Amador and

17 Uzoegwu, who would all appear to be part of the purported class in this case, do not.

18 And unlike the plaintiffs in R.V., each plaintiff in this case is an adult. It is not

19 surprising, then, that the plaintiffs in Doe v. Trump, No. 1:20-cv-02531 (N.D. Ill. July 1,

20 2020), who are represented by plaintiffs’ counsel in this case, were denied leave to

21 proceed under a pseudonym in a nearly identical lawsuit. See Doe v. Trump, No. 1:20-

22 cv-02531 (N.D. Ill. July 1, 2020), Docket 42 (attached as Attachment A).

23

Further, the Government would be prejudiced if the plaintiffs were permitted to

24 proceed pseudonymously. Plaintiffs’ first amended complaint alleges that plaintiffs and

25 the purported class members are eligible individuals who would be entitled to an

26 advance refund under section 6428(f) but for their spouse’s lack of a Social Security

27 number (SSN). See ECF 28, ¶¶ 40-45. The plaintiffs contend the Government will not

28

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Case 8:20-cv-00858-SVW-JEM Document 56 Filed 07/27/20 Page 5 of 5 Page ID #:597

1 be prejudiced if their motion is granted because “the Internal Revenue Service is

2 certainly aware of the Putative Class’s identities as taxpayer identification information is

3 already in the possession of the IRS.” See ECF 35 ¶¶ 25-26. Although the plaintiffs

4 have brought this case as a class action, no class has been certified. Because the

5 Government does not know the plaintiffs’ identities, it cannot confirm their allegations

6 that they are otherwise eligible individuals under section 6428 and are adequate

7 representatives of the proposed class. The fact that the Internal Revenue Service has

8 records for most taxpayers does not mean it can identify these specific plaintiffs’ records

9 or evaluate whether they can fairly and adequately represent the putative class members

10 without knowing plaintiffs’ identities.

11

In the event that the Court is inclined to grant the plaintiffs’ motion, plaintiffs

12 should be required to disclose their identities to the Government under a protective order

13 so that the Government can determine whether plaintiffs are eligible individuals as

14 defined by 26 U.S.C. § 6428 and adequately defend this case. The Government would

15 require, at a minimum, the name and the SSN of each plaintiff and the name and

16 Individual Taxpayer Identification Number of each plaintiff’s spouse.

17 III. CONCLUSION

18

Plaintiffs’ motion should be denied.

19

20 Dated: July 27, 2020

Respectfully submitted,

21

NICOLA T. HANNA

United States Attorney

22

THOMAS D. COKER

Assistant United States Attorney

23

Chief, Tax Division

24

/s/ John D. Ellis

MELISSA BRIGGS

25

JOHN D. ELLIS

Assistant United States Attorneys

26

Attorneys for the United States of America

27

28

3

 
 Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 1 of 12 Page ID #:633

1

NICOLA T. HANNA United States Attorney

2

THOMAS D. COKER Assistant United States Attorney

3

Chief, Tax Division MELISSA BRIGGS (Cal. Bar No. 320697)

4

JOHN D. ELLIS (Cal. Bar No. 322922) Assistant United States Attorneys

5

Federal Building, Suite 7211 300 North Los Angeles Street

6

Los Angeles, California 90012 Telephone: (213) 894-6165

7

(213) 894-2740 Facsimile: (213) 894-0115

8

E-mail:

melissa.briggs2@usdoj.gov john.ellis3@usdoj.gov

9 Attorneys for the

10 United States of America

11

UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14 JANE DOE, et al.,

No. 8:20-cv-00858-SVW-JEM

15

Plaintiffs,

Reply to Response Brief (ECF 57);

16

v.

Memorandum of Points and Authorities

17 DONALD J. TRUMP, et al.,

Hearing Date: August 3, 2020

Time:

1:30 p.m.

18

Defendants.

Location:

Conducted telephonically

19

Hon. Stephen V. Wilson

20

21

22

23

24

25

26

27

28

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 2 of 12 Page ID #:634

1

The United States of America (Government) hereby replies to the July 27, 2020,

2 response brief (response, ECF 57) filed by plaintiffs Jane Doe and John Doe.

3

4 Dated: July 30, 2020

Respectfully submitted,

5

NICOLA T. HANNA United States Attorney

6

THOMAS D. COKER Assistant United States Attorney

7

Chief, Tax Division

8

/s/ John D. Ellis

MELISSA BRIGGS

9

JOHN D. ELLIS

10

Assistant United States Attorneys

Attorneys for the

11

United States of America

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 3 of 12 Page ID #:635

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

This Court determined that 26 U.S.C. § 6428(g) is subject to rational-basis review

4 and ordered briefing on whether that provision survives rational-basis review and related

5 issues of proof and discovery. As such, the Government does not respond to plaintiffs’

6 arguments that rational-basis review should not apply. It replies to plaintiffs’ remaining

7 arguments as follows.

8 II. ARGUMENT

9

A. Plaintiffs ignore binding precedent regarding the burden of proof

10

under rational-basis review

11

As the Government explained in its initial brief, under rational-basis review, “[t]he

12 burden is on the one attacking the legislative arrangement to negative every conceivable

13 basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal

14 quotations omitted). Plaintiffs completely fail to address their burden of proof under

15 Heller even though the case remains binding law. See, e.g., Krishna Lunch of S. Cal. v.

16 Gordon, 797 F. App’x 311, 314 (9th Cir. 2020) (citing Heller, 509 U.S. at 320-21).

17

As the Government also explained, no evidence is required regarding the intent of

18 Congress, and no fact-finding by the Court is required to determine whether a rational

19 basis exists for the classification. See F.C.C. v. Beach Commc’ns, Inc. (Beach), 508 U.S.

20 307, 314-15 (1993). Plaintiffs suggest that the Supreme Court’s holding in Beach is not

21

22

23

24

25

26

27

28 1

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 4 of 12 Page ID #:636

1 applicable here.1 (See ECF 57 at 25-26.) But Beach’s holdings that a legislature is not

2 required to “articulate its reasons for enacting a statute,” that “it is entirely irrelevant for

3 constitutional purposes whether the conceived reason for the challenged distinction

4 actually motivated the legislature,” and that “a legislative choice is not subject to

5 courtroom fact-finding and may be based on rational speculation unsupported by

6 evidence or empirical data” remain binding authority. Beach, 508 U.S. at 314-15.

7 Beach’s standard for rational-basis review was reiterated and upheld by the Supreme

8 Court in Armour, where it held that a classification subject to rational-basis review will

9 be upheld as long as “there is any reasonably conceivable state of facts that could

10 provide a rational basis for [it].” Armour v. City of Indianapolis, Ind., 566 U.S. 673, 681

11 (2012) (quoting Beach, 508 U.S. at 313). And the Ninth Circuit continues to rely on the

12 principles of rational-basis review set forth by Beach and Armour. See, e.g., United

13 States v. Mayea-Pulido, 946 F.3d 1055, 1059 (9th Cir. 2020) (quoting Beach, 508 U.S. at

14 313); Krishna Lunch of S. Cal. v. Gordon, 797 F. App’x 311, 314 (9th Cir. 2020)

15 (quoting Beach, 508 U.S. at 315); Crawford v. Antonio B. Won Pat Int’l Airport Auth.,

16 917 F.3d 1081, 1095 (9th Cir. 2019) (quoting Armour, 566 U.S. at 681).

17

Plaintiffs also suggest (ECF 57 at 23-24, 27) that any rational-basis review must

18 consider the weight of the consequences resulting from a classification. The Ninth

19 Circuit has explicitly rejected that approach. See Aleman v. Glickman, 217 F.3d 1191,

20 1201 (9th Cir. 2000); Alcaraz v. Block, 746 F.2d 593, 605 (9th Cir. 1984).

21

22

23

1 Plaintiffs rely on Eisenstadt v. Baird, 405 U.S. 438 (1972) and Metropolitan Life Insurance Company v. Ward, 470 U.S. 869 (1985) for the proposition that the Court

24

should conduct a probing review of the classification that is the subject of this case. Both cases, however, predate Beach. Neither Romer v. Evans, 517 U.S. 620 (1996) nor

25

dViisllcaugses

oofr

Wlimililtowthbersotoakndva. rOdloecf hre, v5i2e8wUs.eSt.f5o6rt2h

(2000), on in Beach.

which plaintiffs also rely, In Romer, the Supreme Court

26

determined the classification failed to survive an equal protection challenge because there was no legitimate purpose for the classification and it was based on animus. 517

27

U.S. at 635. And in considering an as-applied challenge in Supreme Court determined that completely arbitrary action

Vagilalaingset

oanf Winidlliovwidburaolo--k“,athe

28 class of one”--could violate equal protection guarantees. 528 U.S. at 565.

2

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 5 of 12 Page ID #:637

1

B. Plaintiffs fail to negate the rational bases posited by the Government

2

Plaintiffs do not challenge the exclusion of their spouses, who do not have Social

3 Security numbers (SSNs) valid for employment, from the advance refund scheme. The

4 issue, then, is whether Congress has a permissible reason for also excluding plaintiffs,

5 who allegedly hold SSNs valid for employment, because they filed joint tax returns with

6 ineligible individuals. Although it had no burden to do so, the Government has posited a

7 number of plausible reasons why Congress could have included the provision. Plaintiffs

8 have not met their burden to negative these bases, or any other conceivable bases which

9 might support the legislative arrangement. As such, section 6428(g) withstands rational-

10 basis review.

11

1. Administrative Considerations

12

The Government has posited that Congress may have excluded joint filers like

13 plaintiffs from the advance refund scheme because the scheme is premised in large part

14 on an individual’s (or couple’s, if filing jointly) adjusted gross income, which is defined

15 as gross income less above-the-line deductions.2 Because joint filers aggregate their

16 income and deductions, the IRS would not know from a joint tax return whether

17 plaintiffs would have qualified for an advance refund if they had filed separately.

18 Plaintiffs respond that Congress could have required the IRS to painstakingly review

19 various third-party reporting for each and every joint filer like plaintiffs in order to

20 determine their theoretical eligibility for an advance refund.3 That is beside the point.

21

22

2 Plaintiffs argue (ECF 57 at 13-14) that tax credits, unlike tax deductions, are not

23

matters of legislative grace but “property owned by the taxpayer.” Plaintiffs are mistaken. See, e.g., Hokanson v. Commissioner, 730 F.2d 1245, 1250 (9th Cir. 1984)

24

(“any tax credit is purely a matter of legislative grace”). The case on which plaintiffs rely for this point, Sorenson v. Sec’y of Treasury, 752 F.3d 1433 (9th Cir. 1985), did not

25 hold otherwise.

26

3 Plaintiffs’ argument in any event misstates the IRS’s capacity to compute an individual’s adjusted gross income without a tax return. For one thing, not all income is

27

reported to the IRS by third parties. The same is true for items that result in above-theline deductions. Moreover, joint deductions and joint income would have to be allocated

28 between the filers.

3

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 6 of 12 Page ID #:638

1 Congress could have structured its advance refund scheme in myriad ways. It settled on

2 a scheme that appears to be premised on administrative exigency--hence, its mandate

3 that advance refunds be issued “as rapidly as possible.” See 26 U.S.C. § 6428(f)(3)(A).

4 Indeed, administrative exigency would explain why Congress directed the IRS to

5 compute and issue advance refunds using tax information that was already available to it.

6 See 26 U.S.C. § 6428(f)(3)(A). It would also explain why Congress declined to require

7 that the IRS take additional steps beyond reviewing taxpayers’ 2019 tax returns and why

8 it granted the agency broad discretion to review other information (including taxpayers’

9 2018 tax returns or their Forms SSA-1009 or RRB-1099 for 2019). And it would

10 explain why Congress required taxpayers who did not receive the entire advance refund

11 to which they were entitled to claim the remaining amount as a CARES Act credit on

12 their 2020 tax return. See 26 U.S.C. §§ 6428(a), (e).

13

Each of these decisions Congress made suggests that considerations of

14 administrative exigency may have informed its decisionmaking. Although Congress

15 could have theoretically required the IRS to attempt to ascertain whether a joint filer

16 excluded from the scheme on account of her spouse’s lack of an SSN valid for

17 employment would have qualified for the credit by filing separately, Congress may have

18 reasonably determined that such requirements would be too much of an administrative

19 burden on the IRS, especially in light of its directive to issue millions of advance refunds

20 during a global pandemic.4 Under rational-basis review, such a determination is

21 sufficient. And whether Congress could have selected a different method to achieve the

22 same result is not a consideration. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,

23 563 (2012).

24

25

4 Plaintiffs suggest that the “record-breaking scope and magnitude of the CARES

26

Act, which implemented never-before seen government aid programs at record speed” demonstrates that Congress was not concerned with the administrative burdens its

27

advance refund program would impose on the IRS. (ECF 57 at 19). How plaintiffs arrived at that conclusion is unclear. The size and magnitude of the scheme and the

28

circumstances under which it was crafted suggest an increased concern for administrative burdens.

4

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 7 of 12 Page ID #:639

1

2. Section 6428(e)(2)

2

Plaintiffs next take umbrage with the Government’s suggestion that the exclusion

3 of SSN holders who filed joint tax returns with individuals without SSNs valid for

4 employment was necessary to reconcile section 6428(e)(2)’s requirement that “in the

5 case of a refund or credit made or allowed under subsection (f) with respect to a joint tax

6 return, half of such refund or credit shall be treated has having been made or allowed to

7 each individual filing such return.” As the Government has explained, if any advance

8 refund were issued with respect to a joint return for which one filer did not have an SSN

9 valid for employment, that provision would treat half of the credit “as having been made

10 or allowed” to a statutorily ineligible individual. See 26 U.S.C. §§ 6428(e)(2), (g)(1).

11 Congress may have included the identifying number requirement in section 6428(g)(1) in

12 order to prevent any portion of the credit from inuring (as an advance refund or

13 otherwise) to an individual without work authorization.

14

Plaintiffs’ response centers on the premise that section 6428(e)(1) does not require

15 the repayment of an advance refund if the amount of the advance refund exceeds the

16 CARES Act credit reported on the individual’s 2020 tax return. Plaintiffs contend that

17 “[e]ven if it turns out that an individual who received the Advance Payment was not

18 entitled to receive it, it won’t have to be repaid.” (ECF 57 at 22). But that misstates the

19 law. An advance refund may be issued only to an “eligible individual,” as defined in

20 subsection (d), and only if such an individual otherwise qualifies for the advance refund

21 on account of her adjusted gross income and SSN valid for employment. See 26 U.S.C.

22 § 6428(c), (g). That is why section 6428(f)(2), in defining “advance refund amount,”

23 refers to the “the amount that would have been allowed as a credit under this section for

24 such taxable year.” See 26 U.S.C. § 6428(f)(2). “Would have been allowed” confirms

25 that the eligibility rules set forth in section 6428(c), (d), and (g) apply with respect to any

26 advance refund that the IRS issues. Accordingly, if a statutorily ineligible individual

27 such as a nonresident alien individual nevertheless receives an advance refund, the IRS

28 5

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 8 of 12 Page ID #:640

1 advises that the individual should return the advance refund to the IRS. See Economic

2 Impact Payment Information Center, https://www.irs.gov/coronavirus/economic-impact-

3 payment-information-center, Q&A 14 (“Aliens who received a Payment but are not

4 qualifying resident aliens for 2020 should return the Payment to the IRS by following the

5 instructions about repayments”) (last accessed July 28, 2020).

6

3. Section 6428(d) and (g)

7

The Government explained that Congress may have rationally determined that

8 section 6428(g)’s SSN requirement was necessary to effectuate section 6428(d)’s

9 exclusion of nonresident aliens from the advance refund scheme. Plaintiffs do not

10 dispute the proffered basis on its merits. Nor have they ever challenged subsection (d)’s

11 exclusion of nonresident aliens from the advance refund scheme.

12

C. Proof of animus only defeats rational-basis review when a classification

13

serves no legitimate interest

14

Plaintiffs spend much of their brief alleging, without citation to authority, that the

15 SSN requirement in section 6428(g) was designed to punish the spouses of individuals

16 without SSNs. Even if the provision were motivated in part by animus, however,

17 plaintiffs’ argument would fail because there are legitimate rational bases for the

18 classification. Plaintiffs cite to Department of Agriculture v. Moreno, 413 U.S. 528

19 (1973) for the proposition that classifications based on animus fail rational-basis review.

20 But they completely ignore more recent Supreme Court and Ninth Circuit precedent that

21 holds that allegations of animus do not defeat a classification subject to rational-basis

22 review as long as there is a legitimate rational basis for the classification.

23

In Trump v. Hawaii, the Supreme Court explained that statutes “hardly ever” fail

24 rational-basis review, and only do so when it “is impossible to ‘discern a relationship to

25 legitimate state interests’ or the policy is ‘inexplicable by anything but animus.”’ -- U.S.

26 --, 138 S. Ct. 2392, 2420-21 (2018) (quoting Romer v. Evans, 517 U.S. 620, 632, 635

27 (1996)). Thus, the Supreme Court held that because a rational basis could be articulated

28 6

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 9 of 12 Page ID #:641

1 for the policy that fell within the powers delegated to the president, the policy must be

2 upheld under rational-basis review, despite the concurrent presence of animus. Here, the

3 Government has articulated multiple rational bases based on tax administration for the

4 challenged language in section 6428(g). As such, it cannot be said that the provision is

5 “inexplicable by anything but animus,” and section 6428(g) survives rational-basis

6 review.

7

Likewise, the Ninth Circuit has held that proof of animus is only relevant where

8 there is no legitimate government interest that is served by the classification. In

9 Gallinger v. Baccera, 898 F.3d 1012 (9th Cir. 2018), the plaintiffs, like the ones here,

10 relied on U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) to allege

11 that the classification failed rational-basis review because it was motivated by animus.

12 The Ninth Circuit explained that whether the provision was actually based on animus

13 was of no import. Because “the classification at issue serves legitimate state interests . . .

14 [t]hat conclusion, on its own, prevents Plaintiffs from succeeding on their Equal

15 Protection claim.” Gallinger, 898 F.3d at 1021 (citing Animal Legal Def. Fund v.

16 Wasden, 878 F.3d 1184, 1200 (9th Cir. 2018)).5

17

In short, rational-basis review requires plaintiffs to prove that there was no

18 legitimate interest served by a classification and the presence of animus. Because there

19 are legitimate Governmental interests served by the classifications in this case, plaintiffs’

20 allegations of animus, even if they could be proven, are irrelevant.

21

D. Plaintiffs ignore the use of similar language in other Code provisions

22

and cases cited by the Government

23

The Government relied on the legislative history of Internal Revenue Code

24 provisions with similar language for a fourth rational basis for section 6428(g): that

25

26

27

5 Gallinger did not cite Trump v. Hawaii for this proposition. It therefore represents an independent line of case law confirming that animus is irrelevant if a

28 legitimate reason can be proffered for the classification.

7

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 10 of 12 Page ID #:642

1 Congress could have reasonably chosen to utilize longstanding statutory language from

2 other Code provisions to implement the Act. (ECF 54 at 21-25.) As the Government

3 explained and plaintiffs acknowledge (ECF 57 at 15, 23), current section 6428(g) was

4 unanimously adopted without any contemporaneous legislative history, and a lone floor

5 statement--from a legislator who voted for the Act--states displeasure with the

6 provision.6 The legislative history of prior provisions with similar language

7 demonstrates that the statutory language was adopted to prevent individuals who are not

8 authorized to work in the United States from receiving tax credits. The legislative

9 history of those provisions indicates that the denial of credits to the SSN-holding spouses

10 of individuals without work authorization was a byproduct of Congress’s intent to deny

11 credits to individuals without an SSN valid for employment. It was not the result of

12 animus toward individuals like the plaintiffs.

13

In their response, plaintiffs do not and cannot cite to anything in the extensive

14 legislative history of the previous tax credit provisions as evidence of animus against

15 persons married to individuals without SSNs valid for employment. Congress has the

16 power of the purse and can constitutionally exclude individuals without an SSN valid for

17 employment from the tax credits at issue here, and plaintiffs do not contend otherwise.

18 See Mathews v. Diaz, 426 U.S. 67, 83 n. 22 (1976); see also Aleman, 217 F.3d at 1203;

19 Alcaraz, 746 F.2d at 606. Even if section 6428(g) were overexclusive (and it is not clear

20 that it is) with respect to SSN holders who are married to and filed joint income tax

21 returns with non SSN-holders, that would not make it constitutionally infirm. See

22 Aleman, 217 F.3d at 1201 (quoting Heller, 509 US at 321); see also Vance v. Bradley,

23 440 U.S. 93, 108 (1979).

24

25

6 See Joint Comm. on Taxation, Description of the Tax Provisions of Public Law

26

116-136, The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, JCX12R-20 (April 2020);166 Cong. Rec. 61, H1840-41 (daily ed. March 27, 2020)

27 9(s4t3ate(2m0e1n7t)o(f“[RFe]plo.oTrJsCtaotexm);esnetes ablysoinNdLivRidBuva.l SleWgisGlaetnoerrsarla, nInkca.,m-o- nUg.Sth. e--l,e1a3st7 S.Ct. 929,

28 illuminating forms of legislative history.”).

8

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 11 of 12 Page ID #:643

1

Plaintiffs argue that Congress’s longstanding use of similar statutory language

2 does not make 6428(g) constitutional. (ECF 57 at 26.) That is true. But plaintiffs

3 misunderstand the Government’s point, which is that Congress’s inclusion of tried-and-

4 true statutory language in the CARES Act could be a reasonable, legitimate choice by

5 Congress to implement the Act’s prohibition of payments to individuals without an SSN

6 valid for employment, which in and of itself would allow section 6428(g) to withstand

7 rational-basis review.

8

Plaintiffs rely on news soundbites and post-hoc political statements expressing

9 disapproval of section 6428(g) as proof of Congress’s alleged animus. (ECF 57 at 24.)

10 But these statements are not germane to whether section 6428(g) has a legitimate

11 purpose. Indeed, these arguments suggest that plaintiffs should seek relief through

12 Congress, rather than the courts. See Nordlinger v. Hahn, 505 U.S. 1, 17-18 (1992).

13

Finally, plaintiffs state (ECF 57 at 27) that “[e]xhaustive research has not

14 uncovered any case wherein any court has upheld a statutory provision treating United

15 States citizens differently than other United States citizens based on whom they were

16 married to and their marital status as elected on a federal income tax return.” (ECF 57 at

17 27.) The Government, however, has cited a number of such cases in its filings. See ECF

18 30 at 27-28 and ECF 36 at 9-10 (citing Hofstetter v. Commissioner, 98 T.C. 695, 701-02

19 (1992) and Schinasi v. Commissioner, 53 T.C. 382, 384 (1969)).

20

E. Plaintiffs should not be allowed to conduct discovery

21

The Government has posited plausible reasons why Congress might have excluded

22 individuals like plaintiffs from the advance refund scheme in section 6428(g). Because

23 under rational-basis review a justification must only be plausible, not factual, discovery

24 is not warranted. See Beach, 508 U.S. at 314-15.

25

Plaintiffs insist on discovery but cite no case law in support of that proposition or

26 state what discovery would be required to inform this Court’s determination of whether

27

28 9

Case 8:20-cv-00858-SVW-JEM Document 58 Filed 07/30/20 Page 12 of 12 Page ID #:644

1 section 6428(g) withstands rational-basis review.7 This Court has determined that

2 plaintiffs can facially challenge 6428(g) under the theory unconstitutional actions by

3 Government officials can be challenged by plaintiffs seeking solely declaratory and

4 injunctive relief. (See ECF 44 at 8.) But as a facial constitutional challenge, even if

5 actual evidence of Congress’s intent were required--which Beach and its progeny make

6 clear it is not--the only evidence of Congress’s intent would be the legislative history of

7 section 6428(g) (of which there is none) and similar Code provisions (which is already

8 available to plaintiffs and which was cited extensively in the Government’s brief). In

9 sum, because the Government has demonstrated plausible rational bases for the

10 challenged classification in section 6428(g), discovery is not warranted.

11 III. CONCLUSION

12

Plaintiffs’ action should be dismissed because the first amended complaint fails to

13 state a claim upon which relief can be granted.

14 Dated: July 30, 2020

Respectfully submitted,

15

NICOLA T. HANNA United States Attorney

16

THOMAS D. COKER Assistant United States Attorney

17

Chief, Tax Division

18

/s/ John D. Ellis

MELISSA BRIGGS

19

JOHN D. ELLIS

Assistant United States Attorneys

20

21

Attorneys for the United States of America

22

23

24

25

7 Citing anecdotal evidence, plaintiffs allege (ECF 57 at 21 n.3) that they require

26

information as to how the IRS is processing advance refunds for individuals married filing separately. How the IRS is processing advance refunds for those individuals,

27

however, is not relevant to plaintiffs’ facial equal protection challenge to section 6428(g), which the Court has determined is the only viable cause of action here. (See

28 ECF 44.)

10

 
 Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 1 of 11 Page ID #:718

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz Deputy Clerk

N/A Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [30]

I. Introduction
Pseudonymous Plaintiffs Jane Doe and John Doe (“Plaintiffs”) filed the instant lawsuit on May 6, 2020 against Donald J. Trump, Mitch McConnell, Steven Mnuchin, Charles P. Rettig, the U.S. Department of the Treasury, the U.S. Internal Revenue Service (“IRS”), and the United States of America (collectively “the Government”). Plaintiffs’ First Amended Complaint (“FAC”) was filed on June 3, 2020.
Before the Court is the Government’s motion to dismiss. For the below reasons, the Government’s motion is hereby GRANTED.
II. Factual and Procedural Background
In response to the COVID-19 pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act provides “Advance Credits” of up to $1,200 for eligible individuals and $500 for each of an eligible individual’s qualifying children under age 17. 26 U.S.C. § 6428(a). “Eligible individuals,” as defined in the Act, excludes nonresident aliens, individuals who are claimed as dependents by another taxpayer for the last taxable year, and any estate or trust. 26 U.S.C. § 6428(d).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

The amount of the credit allocated to eligible individuals is limited based on an eligible individual’s adjusted gross income (“AGI”) for their prior year tax return (either 2018 or 2019, depending on whether they filed a 2019 tax return before the IRS processed their Advance Credit), with phase-outs beginning at $75,000 for individual filers and $150,000 for joint filers. 26 U.S.C. § 6428(c). The Act also requires each recipient of an Advance Credit to have a Social Security number (“SSN”), which excludes undocumented immigrants without a work authorization who file taxes with an Individual Taxpayer Identification Number (“ITIN”). 26 U.S.C. § 6428(g); 20 C.F.R. §422.104(a). As a result, U.S. citizens who would otherwise qualify for the Advance Credit based on their income do not receive the Advance Credit if they file a joint tax return with a non-citizen spouse who lacks an SSN and instead uses an ITIN to file their taxes. 26 U.S.C. § 6428(g)(1)(B) (the “Exclusion Provision”).
Plaintiff Jane Doe alleges that she is a U.S. citizen with an AGI below $75,000, and that she has children who are also U.S. citizens. Dkt. 28 (First Amended Complaint (“FAC”) at ¶ 40. Jane Doe was excluded from access to the Advance Credit because she filed a tax return jointly with her spouse, an immigrant who pays taxes and files tax returns with an ITIN. Id. at ¶¶ 41–42. Jane Doe states that, except for her spouse’s lack of an SSN, she would otherwise be eligible for and receive an Advance Credit from the IRS, both for herself and each of her dependent US. citizen children. Id. at ¶ 42. John Doe makes similar allegations regarding his inability to receive an Advance Credit. Id. at ¶¶ 43–45.
Based on the foregoing, Plaintiffs argue that the Government denied them an immediate benefit that other similarly situated tax filers have received. Id. at ¶¶ 74, 83. Plaintiffs argue that the denial of this immediate benefit is unconstitutional because it infringes on their fundamental right to marry and their right to equal protection under the law. Id. at ¶¶ 64–85.
Plaintiffs filed an ex parte application for a temporary restraining order (“TRO”) on May 8, 2020. Dkt. 9. The Court denied the TRO on July 8, 2020. Dkt. 44. The Court concluded that, although Plaintiffs had standing to bring their claims, the Exclusion Provision they facially challenged was subject to rational basis review because it did not (1) implicate their fundamental rights, such as their to marriage or their First Amendment rights, or (2) create a suspect classification that is entitled to heightened scrutiny. Id. at 11-17. The Court explained that the substantial deference given to the Government under rational basis review made it unlikely Plaintiffs would succeed on the merits of their claims. Id. at 16-17.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

On July 13, 2020, the Court held a hearing regarding the Government’s motion to dismiss. Dkt. 50. The Court declined to grant the Government’s pending motion, instead ordering supplemental briefing from both parties on the rational basis for the Exclusion Provision because neither party addressed this issue in detail in their prior briefing on the motion to dismiss. See Dkt. 30 at 21 (one sentence in Government’s motion to dismiss positing a rational basis Congress may have acted on); Dkt. 32 (Plaintiffs’ assertion without argument that disposition at the pleading stage would be inappropriate regardless of whether rational basis existed). Both parties have now submitted their supplemental briefs, Dkts. 54, 57, and the Court therefore returns to the question of whether the constitutional issues raised by Plaintiffs state a claim for which relief can be granted.
III. Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A complaint that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 678).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). Thus, “[w]hile legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. When evaluating the sufficiency of a pleading under Fed. R. Civ. P. 12(b)(6), a court may consider only the allegations in the complaint and any attachments or documents incorporated by reference. Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019); see also United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 4 of 11 Page ID #:721
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

IV. Analysis
a. Plaintiffs’ new arguments regarding fundamental rights.
In their briefing, Plaintiffs make two new arguments suggesting that the Exclusion Provision should be subject to heightened scrutiny.1 First, they argue that the Exclusion Provision discriminates on the basis of national origin. PSB at 12. Second, they argue that the Exclusion Provision creates compelled speech by forcing individuals in their position to mark “married filing separately” on their tax return in order to receive the Advance Credit.2 Id. at 2–7.
Plaintiffs’ first argument is easily dismissed because the Exclusion Provision does not discriminate on the basis of national origin. See 26 U.S.C. § 6428(g)(1)(B). Rather, the Exclusion Provision applies to every tax filer regardless of national origin. See id. Accordingly, this first argument for heightened scrutiny is without merit.
Plaintiffs’ argument under the First Amendment is also unavailing. It is true that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977).
However, the protection against compelled speech is only applicable where the government compels a particular political or ideological message—i.e., where it requires “affirmation of a belief and an attitude of mind” the speaker opposes. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943); see also Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (finding requirement that newspapers publish replies from political candidates unconstitutional); Pacific Gas and Electric Company v. Public Utilities Commission of California, 475 U.S. 1, 14–16 (holding state may not order
1 Plaintiffs’ briefing also renewed arguments that the Exclusion Provision unconstitutionally interferes with the fundamental right of marriage, Dkt. 57 (Plaintiffs’ Supplemental Brief (“PSB”)) at 7–10, 12–13, and discriminates on the basis of alienage, id. at 11–12. The Court rejects these arguments for the same reason it rejected them in denying Plaintiffs’ motion for a temporary restraining order. Dkt. 44 at 12–16.
2 Individuals in Plaintiffs’ position can still receive the Advance Credit if they file separately rather than jointly with their non-eligible spouse. Dkt. 54 (Government’s Supplemental Brief (“GSB”)) at 11 n.1.

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 5 of 11 Page ID #:722
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

utility company to distribute the literature of groups with which it disagreed).
By contrast, the prohibition on compelled speech is inapplicable where the required speech is “essential to the maintenance of effective government and orderly society.” Barnette, 319 U.S. at 645 (Murphy, J., concurring). At least one court has expressly held that the First Amendment is not implicated by the disclosure of required information to the IRS. United States v. Sindel, 53 F.3d 874, 878 (8th Cir.1995)
Essentially, Plaintiffs ask this Court to hold that the selection of one’s filing status on a tax return is akin to the “affirmation of a belief and an attitude of mind” that the First Amendment protects against. Barnette, 319 U.S. at 633. The Court declines to do so. Choosing “married filing separately” or “married filing jointly” on a tax return does not constitute a political or ideological message. Rather, it merely provides the IRS with administrative information that is essential to the Department’s orderly operation. See Sindel, 53 F.3d at 878.
Plaintiffs’ arguments to the contrary are without merit. First, nearly all of the cases relied on by Plaintiffs involved a political or ideological message. See, e.g., Speiser v. Randall, 357 U.S. 513, 516 (1958) (statement on tax return declaring that filer does not support overthrowing government); Perry v. Sindermann, 408 U.S. 593, 595 (1972) (statements regarding educational policies); Wooley, 430 U.S. at 719 (“Live Free or Die” motto on license plates); Barnette, 319 U.S. at 633 (flag salute in classrooms); Koala, 931 F.3d at 892 (article satirizing trigger warnings and safe spaces); All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 223 (2d Cir. 2011), aff’d sub nom. Agency for Int'l Dev. v. All. for Open Soc'y Int’l, Inc., 570 U.S. 205 (2013) (financial grant condition prohibiting assistance to groups lacking express policy opposing prostitution). Here, by contrast, no such political or ideological message exists in the choice between “married filing separately” and “married filing jointly.”
Second, Plaintiff suggests that the court in Kahn v. United States, 753 F.3d 1208, 1211 (3d Cir. 1985)—in which a defendant was prosecuted for filing a frivolous tax return after demanding a nonexistent “war tax” refund—“acknowledged that tax returns constitute speech that is afforded First Amendment protection,” PSB at 3. To the contrary, the Kahn court did not decide whether the defendant’s conduct was speech related. 753 F.2d at 1217. Instead, the court explained that “[e]ven if we were to view the underlying conduct as speech-related, we believe it is sufficiently outweighed by

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 6 of 11 Page ID #:723
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

the broad public interest in maintaining a sound and administratively workable tax system.” Id. The court in the other case relied on by Plaintiffs reached the same result: “Even if plaintiffs’ attempts to avoid or redirect their taxes were treated as expressive activity protected by the First Amendment, the authorities cited above establish that the necessities of maintaining a revenue system raise a compelling governmental interest under these circumstances adequate to override this fundamental right.” Franklet v. United States, 578 F. Supp. 1552, 1556 (N.D. Cal. 1984), aff’d, 761 F.2d 529 (9th Cir. 1985).
Accordingly, Plaintiffs’ new arguments in support of heightened scrutiny are unavailing. The Court finds that the Exclusion Provision is instead subject to rational basis review.
b. Rational basis review in light of the supplemental briefing.
“[R]ational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Aleman v. Glickman, 217 F.3d 1191, 1200 (9th Cir. 2000) (quoting Heller v. Doe, 509 U.S. 312, 319 (1993) (quotations omitted). The Court must determine whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 815 (9th Cir. 2016) (quoting F.C.C. v. Beach Comms., Inc., 508 U.S. 307, 313 (1993)). “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Aleman, 217 F.3d at 1201 (quoting Heller, 509 U.S. at 321). “[I]f [the Court] find a plausible reason for [Congress’] action, [it’s] inquiry is at an end” and dismissal is warranted. Fowler, 844 F.3d at 815.
Moreover, the government “has no obligation to produce evidence to sustain the rationality of a statutory classification. . . . [T]he burden is [instead] on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Aleman, 217 F.3d at 1201 (citing Heller, 509 U.S. at 320) (emphasis added) (internal quotations omitted). Accordingly, Plaintiffs here bear the burden of negating every conceivable rational basis for the Exclusion Provision.

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 7 of 11 Page ID #:724
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

The Court finds that Plaintiffs failed to negate at least one rational basis: administrative efficiency. Moreover, the Court does not find any evidence of animus in the legislative record, nor is the Court’s conclusion altered by the Exclusion Provision’s carve out for military members.
i. Administrative efficiency for IRS implementation.
“[A]dministrative considerations can justify a tax-related distinction.” Armour v. City of Indianapolis, Ind., 566 U.S. 673, 682 (2012). These considerations include minimizing costs and burdens. Cty. of Santa Cruz v. Burwell, 584 F. App’x 425 (9th Cir. 2014) (upholding statute on the “[rational] basis of minimizing administrative cost and burden”); see also Armour, 566 U.S. at 682.
There is abundant public evidence that a primary goal of the CARES Act was speed—i.e., to get checks in the hands of eligible individuals quickly. The express text of § 6428 directs the Treasury Secretary to process Advance Credits “as rapidly as possible.” 26 U.S.C. § 6428 (f)(3)(A). Other portions of the statute permit modification to payment information by disbursing officials “for the purpose of facilitating the accurate and efficient delivery” of payments. See 26 U.S.C. § 6428 (f)(3)(C). Moreover, Congress did not want the IRS to wait until individuals submitted their 2020 tax returns to determine if those individuals were eligible for the Advance Credit. Rather, Congress authorized the IRS to immediately determine eligibility based on prior tax returns. See 26 U.S.C. § 6428 (f)(5). Accordingly, speed was a primary goal in the legislative scheme.
Yet, Congress did not just want the IRS to immediately send a check to every individual living in the country. Rather, Congress sought to restrict the provision of Advance Credits to individuals who both (1) have work authorization in the U.S., 26 U.S.C. § 6428(g), and (2) have AGIs below certain thresholds, 26 U.S.C. § 6428(c).3 Congress also expressly chose not to distribute checks to nonresident aliens. 26 U.S.C. § 6428(d)(1).
Because an individual receiving an Advance Credit must meet all those requirements, the IRS would face administrative challenges if it were required to determine whether an individual who files
3 $150,000 for joint filers, $75,000 for single filers, and $112,500 for individuals filing as head of household. See 26 U.S.C. § 6428(c).

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 8 of 11 Page ID #:725
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

jointly with a spouse lacking work authorization—i.e., with a spouse who is ineligible for the Advance Credit—would hypothetically meet the AGI requirement on their own. Specifically, the CARES Act directs the IRS to use AGI as reported on the joint filers’ 2019 tax return. 26 U.S.C. § 6428(f). That AGI equals the aggregate incomes of the joint filers less above-the-line deductions. 26 U.S.C. § 62. Accordingly, the IRS may not be able to efficiently determine the hypothetical AGI of an individual joint filer. For example, as the Government explains, the IRS may not be able to quickly determine which deductions or qualifying children claimed on the joint return would have been claimed by the eligible individual if he or she filed separately. GSB at 11.
Plaintiffs counter that “[t]his argument displays a fundamental lack of understanding of the innerworkings of the Internal Revenue Service.” PSB at 15. They identify a number of sources of information the IRS could use to determine the AGI of an individual joint filer, including W-2s and 1099s. Id. They further note that the IRS “routinely audits complex partnerships and corporations,” and they argue that any suggestion that the IRS is unable to determine the AGI of an individual joint filer is “patently false and insulting to the hard-working and highly competent employees of the IRS.”
Id.
Plaintiffs’ argument addresses the wrong question. The issue is not whether the IRS is capable of computing the hypothetical AGI of an individual who filed jointly with another. Rather, the issue is whether Congress plausibly chose not to require the IRS to do so in order to speed up the process by which stimulus checks were distributed while ensuring that the checks were only distributed to individuals with work authorization. In other words, Congress could have rationally chosen the Exclusion Provision as a means of balancing two competing objectives: efficiency in delivering checks on the one hand and, on the other, ensuring checks are distributed not to nonresident aliens but, instead, only to individuals with work authorization whose AGI is below a certain threshold.
Plaintiffs bear the burden of negating that possibility, Aleman, 217 F.3d at 1201, and Plaintiffs have failed to do so. For example, Plaintiff does not argue that the IRS could compute a hypothetical AGI with the efficiency necessary to satisfy Congress’s urgency. Nor does Plaintiff identify any instruction to the IRS that the Department use all of its available data in determining eligibility. To the contrary, the statute limits the alternative data that the IRS may use in determining eligibility to the following: (1) an individual’s 2018 tax return, (2) an individual’s 2019 Form SSA-1099 (i.e., a Social

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 9 of 11 Page ID #:726
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

Security Benefit Statement), or (3) an individual’s 2019 Form RRB-1099 (i.e., a Social Security Equivalent Benefit Statement). 26 U.S.C. § 6428(f)(5). Indeed, this limitation further suggests that Congress may have rationally decided to prevent the IRS from going down a rabbit hole in determining eligibility—i.e., to minimize delays in the distribution of checks.
Moreover, Congress is not eliminating the Advance Credit entirely for individuals such as Plaintiffs, who would ordinarily be eligible but are not because they filed jointly with a non-eligible spouse. Rather, these individuals can receive credit when they file their 2020 return—they must simply file separately from their spouse.4 GSB at 11 n.1 (the Government’s position is that Plaintiffs may file their 2020 tax returns separately in order to obtain the Advance Credit).5 In other words, Congress may have decided to shift the burden of determining eligibility for individuals such as Plaintiffs from the IRS to the Plaintiffs in order to minimize the burden on the IRS when time is of the essence.
Whether or not administrative efficiency was actually Congress’s motivation in adopting the Exclusion Provision is not relevant. RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1155 (9th Cir. 2004) (“[I]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”) (quoting Beach, 508 U.S. at 315). Rather, “it is enough that the governing body could have rationally decided that the action would further [the legitimate] interest.” Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081, 1095 (9th Cir. 2019).
4 The Court considered the possibility that requiring individuals such as Plaintiffs to file separately in order to receive the Advance Credit may deprive them of some of the benefits of filing jointly. Plaintiffs did not raise this argument in their briefing, and the particular impact of filing separately rather than jointly remains unclear absent briefing on the issue. Nonetheless, a particular classification “does not fail rational-basis review simply because . . . in practice it results in some inequality.” Aleman, 217 F.3d at 1201 (internal quotations omitted).
5 Plaintiffs suggests they are entitled to discovery on the basis of scattered accounts of the IRS denying Advance Credits to US citizens who filed their taxes separately and would otherwise qualify for the Advance Credit. Dkt. 57 at 16 n.3. However, Plaintiffs cannot base a facial challenge to a statute on the implementation of the statute’s language by an executive agency, particularly when that alleged implementation contradicts the plain language of the statute. Willis v. City of Seattle, 943 F.3d 882, 886 (9th Cir. 2019) (“A facial challenge is an attack on a law itself as opposed to a particular application.”) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015)).

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 10 of 11 Page ID #:727
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

The Court finds that Congress could have rationally included the Exclusion Provision to promote administrative efficiency and minimize delays in the distribution of checks. Plaintiffs failed to negate that rational basis and, accordingly, the Court finds that the Exclusion Provision survives rational basis review.
ii. No evidence of animus in the legislative record.
Plaintiffs suggest that the Exclusion Provision cannot satisfy rational basis review because it was motivated by animus towards nonresident aliens and anyone associated with them. PSB at 17–20.
However, Plaintiffs have not pointed to any specific evidence of animus in the legislative record with regard to the Exclusion Provision.6 See generally Dkt. 32; Dkt. 57. The Court finds that this lack of animus distinguishes the analysis here from cases cited by Plaintiffs, where clear evidence of animus towards specific groups was present in the legislative history of the disputed law. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“The legislative history that does exist, however, indicates that that amendment was intended to prevent so called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.”); see also Romer v. Evans, 517 U.S. 620, 633 (1996) (law barring gays and lesbians to protection via anti-discrimination laws failed rational basis review). This is especially so in light of the near-unanimous votes in both the Senate and House of Representatives. See H.R. 748: Senate Roll Vote Number 80 (March 25, 2020) (Yeas – 96, Nays – 0); see also H.R. 748: House Voice Vote (March 27, 2020) (Agreed by Voice Vote).
Accordingly, Plaintiffs’ argument regarding animus is unavailing.7
6 Plaintiff cites to news articles quoting the head of a non-profit, the former chairman of the Florida Republican Party, and a spokeswoman for a U.S. Senator. PSB at 19. The Court is not persuaded that these statements made by individuals uninvolved in the legislative process demonstrate legislative animus.
7 Moreover, even if animus were present, a statute will only fail if it is “impossible to discern a relationship to legitimate state interests or the policy is inexplicable by anything but animus.” Trump v. Hawaii, 138 S. Ct. 2392, 2420–21 (2018). Here, as discussed above, supra at 7–10, a legitimate interest exists: delivering checks to eligible individuals with minimal delay.

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Case 8:20-cv-00858-SVW-JEM Document 71 Filed 09/02/20 Page 11 of 11 Page ID #:728
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:20-cv-00858-SVW-JEM

Date 9/2/2020

Title

Jane Doe v. Donald J. Trump et al

iii. An exception for military servicemembers is consistent with other portions of the tax code and prior advance credit legislation.
Finally, Plaintiffs note that Congress included an express carve-out to the Exclusion Provision for members of the armed forces. 26 U.S.C. § 6428(g)(3). The carve-out permits individuals who are members of the US armed forces during the taxable year to receive the full Advance Credit as long as at least one spouse has a SSN. Id. Plaintiffs argue that this carve-out demonstrates “disparate treatment” of Plaintiffs relative to military members and other US citizens who have not married individuals without SSNs. PSB at 15–16.
The Court does not find that the carve-out rebuts the rational basis the Court found above. Indeed, special benefits to military members are provided throughout the Tax Code, and even expressly include preferential treatments with regard to other tax credits, like the Earned Income Tax Credit (“EITC”). See 26 U.S.C. § 112 (combat pay excluded from gross income); 26 U.S.C. § 7508 (extension of various tax deadlines for armed service members in combat zones); see also IRS Publication 596, “Earned Income Credit” at 8 (explaining armed service members can elect to have nontaxable pay included in earned income for purposes of EITC).
Accordingly, the decision by Congress to exempt members of the military from the Exclusion Provision does not alter the Court’s conclusion regarding the rational basis for that Provision.
V. Conclusion
For the foregoing reasons, the Court concludes that the Exclusion Provision survives rational basis review and Plaintiffs’ FAC therefore fails to state a claim upon which relief can be granted.
Accordingly, the Government’s motion to dismiss is GRANTED. Plaintiffs’ outstanding motion to proceed under pseudonyms is denied as moot.
IT IS SO ORDERED.

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