1/18/2021

District of Maryland (CM/ECF Live 6.3.3)
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:20-cv-01148-PWG

Create an Alert for This Case on RECAP

R.V. et al v. Mnuchin et al Assigned to: Judge Paul W. Grimm Related Case: 1:20-cv-01102-ELH Cause: 42:1983vp Violation of Due Process and Equal Protection

Date Filed: 05/05/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
R.V. a minor, by and through his mother and next friend, N.R.

represented by Jonathan Lev Backer Institute for Constitutional Advocacy and Protection 600 New Jersey Ave., NW Washington, DC 20001 2026629835 Email: jb2845@georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak Institute for Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 2026629042 Fax: 2026629248 Email: as3397@georgetown.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book Villanova University Widger School of Law 299 N Spring Mill Rd. Rm 235 Villanova, PA 19085 6105196416 Fax: 6105196837 Email: book@law.villanova.edu PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?137277780685271-L_1_0-1

Mary B McCord Institute for Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 2026629042 Fax: 2026629248 Email: mbm7@georgetown.edu PRO HAC VICE
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District of Maryland (CM/ECF Live 6.3.3)
ATTORNEY TO BE NOTICED

Plaintiff N.R.

Robert D. Friedman Institute of Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 9145884713 Fax: 2026629248 Email: rdf34@georgetown.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
E.V. a minor, by and through her mother and next friend, C.V. TERMINATED: 10/23/2020

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?137277780685271-L_1_0-1

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

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
C.V. TERMINATED: 10/23/2020

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
H.A.G. a minor, by and through his mother and next friend, H.G.T.

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord

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

Plaintiff
J.G. a minor, by and through her mother and next friend, H.G.T.

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
B.G. a minor, by and through her mother and next friend, H.G.T.

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?137277780685271-L_1_0-1

Mary B McCord (See above for address) PRO HAC VICE
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District of Maryland (CM/ECF Live 6.3.3)
ATTORNEY TO BE NOTICED

Plaintiff
I.G. a minor, by and through her mother and next friend, H.G.T.

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff H.G.T.

Jonathan Lev Backer (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert D. Friedman

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Plaintiff R.R. a minor, by and through her parents and next friends, M.M. and J.R. TERMINATED: 12/15/2020
Plaintiff M.M. TERMINATED: 12/15/2020

District of Maryland (CM/ECF Live 6.3.3)
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert D. Friedman (See above for address)

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Plaintiff J.R. TERMINATED: 12/15/2020

District of Maryland (CM/ECF Live 6.3.3)
PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Book (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert D. Friedman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Steven T. Mnuchin in his ofﬁcial capacity as Secretary of the Treasury
Defendant

represented by Christopher James Williamson United States Department of Justice Tax Division Ben Franklin Station PO Box 227 Washington, DC 20044 2023072250 Fax: 2025146866 Email: christopher.j.williamson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan A Konig U.S. Department of Justice PO Box 55 Washington, DC 20044 2023057917 Fax: 2025145238 Email: jordan.a.konig@usdoj.gov ATTORNEY TO BE NOTICED

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United States of America

District of Maryland (CM/ECF Live 6.3.3)
represented by Christopher James Williamson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus County of Los Angeles

Jordan A Konig (See above for address) ATTORNEY TO BE NOTICED
represented by Shannon Barrett OMelveny and Myers LLP 1625 Eye Street, NW Washington, DC 20006 12023835300 Fax: 12023835414 Email: sbarrett@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel R Suvor O'Melveny and Myers LLP 400 South Hope St. Los Angeles, CA 90071 2134306000 Fax: 2134306407 Email: dsuvor@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
CENTER ON BUDGET AND POLICY PRIORITIES

Margaret Carter O'Melveny and Myers LLP 400 South Hope St. Los Angeles, CA 90071 2134306000 Fax: 2134306407 Email: mcarter@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David McAloon Sidley Austin LLP 1501 K Street N.W. Washington, DC 20005 202-736-8316 Fax: 202-736-8711 Email: dmcaloon@sidley.com ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?137277780685271-L_1_0-1

Tobias Loss Eaton Sidley Austin LLP 1501 K St. NW Washington, DC 20005
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District of Maryland (CM/ECF Live 6.3.3)
2027368000 Fax: 2027368711 Email: tlosseaton@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED

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

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 04168639176.), ﬁled by B.G., J.G., E.V., H.A.G., M.M., J.R., R.V., R.R., H.G.T., C.V., I.G., N.R.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Secretary Mnuchin, # 3 Summons U.S. Attorney, # 4 Summons U.S. Attorney General)(Backer, Jonathan) (Entered: 05/05/2020)
2 MOTION for Permission to Proceed Pseudonymously and to Omit Home Addresses and Counties from the Complaint Caption by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Backer, Jonathan) (Entered: 05/05/2020)
3 MOTION to Appear Pro Hac Vice for Amy L. Marshak (Filing fee $100, receipt number 0416-8639332.) by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Backer, Jonathan) (Entered: 05/05/2020)
4 MOTION to Appear Pro Hac Vice for Mary B. McCord (Filing fee $100, receipt number 0416-8639354.) by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Backer, Jonathan) (Entered: 05/05/2020)
5 MOTION to Appear Pro Hac Vice for Robert D. Friedman (Filing fee $100, receipt number 0416-8639375.) by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Backer, Jonathan) (Entered: 05/05/2020)
6 QC NOTICE: 1 Complaint, ﬁled by H.G.T., E.V., M.M., R.R., B.G., H.A.G., J.G., N.R., I.G., J.R., C.V., R.V. was ﬁled incorrectly. **Not all attorneys listed as counsel have signed the document. Court staff has entered the appearance of only the attorneys who have signed the document. All other attorneys must enter their own entries of appearance. (ybs, Deputy Clerk) (Entered: 05/05/2020)
7 (FILED IN ERROR)Summons Returned Executed by Ivania Amador. Robert K. Hur served on 5/1/2020. Associated Cases: 1:20-cv-01102-ELH, 8:20-cv-01148PWG(Newman, Robert) Modiﬁed on 5/6/2020 (ybs, Deputy Clerk). Modiﬁed on 5/6/2020 (ybs, Deputy Clerk). (Entered: 05/05/2020)
8 (FILED IN ERROR)Summons Returned Executed by Ivania Amador. William P. Barr served on 5/1/2020. Associated Cases: 1:20-cv-01102-ELH, 8:20-cv-01148PWG(Newman, Robert) Modiﬁed on 5/6/2020 (ybs, Deputy Clerk). Modiﬁed on 5/6/2020 (ybs, Deputy Clerk). (Entered: 05/05/2020)
9 MOTION to Appear Pro Hac Vice for Leslie M. Book (Filing fee $100, receipt number 0416-8640257.) by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Backer, Jonathan) (Entered: 05/05/2020)
10 PAPERLESS ORDER granting 3 Motion to Appear Pro Hac Vice on behalf of Amy Marshak. Directing attorney Amy Marshak to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-ﬁling-password-reset. Signed by Clerk on 5/6/2020. (srds, Deputy Clerk) (Entered: 05/06/2020)
11 QC NOTICE: 4 Motion to Appear Pro Hac Vice ﬁled by H.G.T., E.V., M.M., R.R.,

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05/06/2020
05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/07/2020
05/07/2020 05/07/2020 05/08/2020 05/08/2020
05/08/2020
05/11/2020 05/11/2020

District of Maryland (CM/ECF Live 6.3.3)
B.G., H.A.G., J.G., N.R., I.G., J.R., C.V., R.V. needs to be modiﬁed. See attachment for details and corrective actions needed regarding missing or incomplete information. (srds, Deputy Clerk) (Entered: 05/06/2020)
12 QC NOTICE: 5 Motion to Appear Pro Hac Vice ﬁled by H.G.T., E.V., M.M., R.R., B.G., H.A.G., J.G., N.R., I.G., J.R., C.V., R.V. needs to be modiﬁed. See attachment for details and corrective actions needed regarding missing or incomplete information. (srds, Deputy Clerk) (Entered: 05/06/2020)
13 LETTER ORDER Regarding the Filing of Motions. Signed by Judge Paul W. Grimm on 5/6/2020. (ybs, Deputy Clerk) (Entered: 05/06/2020)
14 NOTICE of Appearance by Amy Marshak on behalf of All Plaintiffs (Marshak, Amy) (Entered: 05/06/2020)
15 (FILED IN ERROR) LETTER ORDER scheduling a telephone conference call on May 18, 2020 at 3:30pm. Signed by Judge Paul W. Grimm on 5/6/2020. (ybs, Deputy Clerk) Modiﬁed on 5/6/2020 (ybs, Deputy Clerk). (Entered: 05/06/2020)
16 LETTER ORDER scheduling a telephone conference on May 8, 2020 at 3:30pm. Signed by Judge Paul W. Grimm on 5/6/2020. (ybs, Deputy Clerk) (Entered: 05/06/2020)
17 Summons Issued 60 days as to Steven T. Mnuchin, United States of America, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons)(ybs, Deputy Clerk) (Entered: 05/06/2020)
18 PAPERLESS ORDER granting 9 Motion to Appear Pro Hac Vice on behalf of Leslie M Book. Directing attorney Leslie M Book to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/7/2020. (srds, Deputy Clerk) (Entered: 05/07/2020)
19 CORRECTED MOTION to Appear Pro Hac Vice for Mary B. McCord by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.. The fee has already been paid.(Backer, Jonathan) (Entered: 05/07/2020)
20 CORRECTED MOTION to Appear Pro Hac Vice for Robert D. Friedman by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.. The fee has already been paid.(Backer, Jonathan) (Entered: 05/07/2020)
21 NOTICE of Appearance by Christopher James Williamson on behalf of All Defendants (Williamson, Christopher) (Entered: 05/08/2020)
22 PAPERLESS ORDER granting 19 Corrected Motion to Appear Pro Hac Vice on behalf of Mary B McCord. Directing attorney Mary B McCord to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-ﬁling-password-reset. Signed by Clerk on 5/8/2020. (srds, Deputy Clerk) (Entered: 05/08/2020)
23 PAPERLESS ORDER granting 20 Corrected Motion to Appear Pro Hac Vice on behalf of Robert Friedman. Directing attorney Robert Friedman to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 5/8/2020. (srds, Deputy Clerk) (Entered: 05/08/2020)
24 NOTICE by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V. of Schedule for the Filing of Letter Briefs (Backer, Jonathan) (Entered: 05/11/2020)
25 NOTICE of Appearance by Mary B McCord on behalf of All Plaintiffs (McCord, Mary) (Entered: 05/11/2020)

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05/14/2020
05/14/2020 05/14/2020 05/14/2020 05/18/2020
05/18/2020
05/22/2020 05/29/2020 06/19/2020
06/19/2020 07/10/2020 07/17/2020 07/30/2020 08/04/2020 08/07/2020

District of Maryland (CM/ECF Live 6.3.3)
26 PAPERLESS ORDER APPROVING 24 schedule for ﬁling letters. The United States shall ﬁle its letter laying out grounds for dismissal by May 22, 2020. Plaintiffs shall ﬁle their responsive letter by May 29, 2020. Each letter will be no more than ﬁve pages, single-spaced. If the Court decides any issues raised in the parties respective letters without additional brieﬁng, such decided issues shall be preserved for appeal as if they were raised through a typical Rule 12 motion to dismiss. Signed by Judge Paul W. Grimm on 5/14/2020. (pk3s, Chambers) (Entered: 05/14/2020)
27 NOTICE of Appearance by Leslie Book on behalf of All Plaintiffs (Book, Leslie) (Entered: 05/14/2020)
28 NOTICE of Appearance by Robert D. Friedman on behalf of All Plaintiffs (Friedman, Robert) (Entered: 05/14/2020)
29 NOTICE of Appearance by Jordan A Konig on behalf of All Defendants (Konig, Jordan) (Entered: 05/14/2020)
30 SUMMONS Returned Executed by B.G., J.G., E.V., H.A.G., M.M., J.R., R.V., R.R., H.G.T., C.V., I.G., N.R.. All Defendants. (Attachments: # 1 Afﬁdavit of Jonathan de Jong, # 2 Receipt U.S. Attorney for Md., # 3 Receipt U.S. Attorney General, # 4 Receipt Secretary Mnuchin)(Backer, Jonathan) Modiﬁed on 5/18/2020 (ybs, Deputy Clerk). Modiﬁed on 5/20/2020 (ybs, Deputy Clerk). (Entered: 05/18/2020)
31 (FILED IN ERROR) QC NOTICE: 30 Summons Returned Executed as to USA, ﬁled by H.G.T., E.V., M.M., R.R., B.G., H.A.G., J.G., N.R., I.G., J.R., C.V., R.V. was ﬁled incorrectly. **Please reﬁle and select the individual served and enter the service date so that the answer due date is automatically populated into the docket text. It has been noted as FILED IN ERROR, and the document link has been disabled. (ybs, Deputy Clerk) Modiﬁed on 5/20/2020 (ybs, Deputy Clerk). (Entered: 05/18/2020)
32 Substantive legal issues - addressing (Williamson, Christopher) (Entered: 05/22/2020)
33 Substantive legal issues - addressing (Backer, Jonathan) (Entered: 05/29/2020)
34 MEMORANDUM OPINION and ORDER construing as a motion to dismiss and denying 32 Substantive legal issues - addressing ﬁled by United States of America, Steven T. Mnuchin. Signed by Judge Paul W. Grimm on 6/19/2020. (ybs, Deputy Clerk) (Entered: 06/19/2020)
35 AMENDED LETTER ORDER rescheduling the telephone conference call to July 17, 2020 at 1:00 p.m. Signed by Judge Paul W. Grimm on 6/19/2020. (ybs, Deputy Clerk) (Entered: 06/19/2020)
36 ANSWER to 1 Complaint, by Steven T. Mnuchin, United States of America. (Williamson, Christopher) (Entered: 07/10/2020)
37 DISCOVERY ORDER. Signed by Judge Paul W. Grimm on 7/17/2020. (Attachments: # 1 Initial Discovery Protocols)(ybs, Deputy Clerk) (Entered: 07/17/2020)
38 NOTICE by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V. (Friedman, Robert) (Entered: 07/30/2020)
39 Request for Pre-Motion Conference (Attachments: # 1 Exhibit A)(Friedman, Robert) (Entered: 08/04/2020)
40 PAPERLESS ORDER re 39 Request for Pre-Motion Conference. Defendants are directed to ﬁle a letter in response of 3 pages or less, single spaced, excluding any exhibits, by August 14, 2020. I will then hold a telephone conference with the parties,

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08/11/2020 08/14/2020 08/26/2020 08/28/2020 08/28/2020
09/11/2020 09/14/2020 09/15/2020 09/18/2020 10/05/2020 10/15/2020
10/16/2020 10/22/2020 10/23/2020 10/26/2020 12/14/2020

District of Maryland (CM/ECF Live 6.3.3)
which will be scheduled separately. Signed by Judge Paul W. Grimm on 8/7/2020. (pk3s, Chambers) (Entered: 08/07/2020)
41 LETTER ORDER scheduling a pre-motion conference call on August 28, 2020 at 3:00 p.m. Signed by Judge Paul W. Grimm on 8/11/2020. (ybs, Deputy Clerk) (Entered: 08/11/2020)
42 RESPONSE re 41 Order, 40 Order, 39 Request for Pre-Motion Conference ﬁled by Steven T. Mnuchin, United States of America. (Attachments: # 1 Ex. A)(Williamson, Christopher) (Entered: 08/14/2020)
43 Request for Pre-Motion Conference (Friedman, Robert) (Entered: 08/26/2020)
44 Telephone Conference held on 8/28/2020 before Judge Paul W. Grimm.(FTR - Ulander - 4A.) (bus, Deputy Clerk) (Entered: 08/28/2020)
45 PAPERLESS ORDER memorializing today's telephone conference. The parties will consult in light of the comments I made today on the record to try and come to a resolution on a proposed protective order. If the parties cannot agree they should submit their proposals. The parties should submit their proposal or proposals no later than September 11, 2020. Signed by Judge Paul W. Grimm on 8/28/2020. (pk3s, Chambers) (Entered: 08/28/2020)
46 STATUS REPORT Jointly Filed by Steven T. Mnuchin, United States of America (Attachments: # 1 Proposed Protective Order)(Williamson, Christopher) (Entered: 09/11/2020)
47 STATUS REPORT (Supplemental Joint Status Report) by United States of America(Konig, Jordan) (Entered: 09/14/2020)
48 Joint Status Report by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V. (Attachments: # 1 Exhibit Proposed Protective Order)(Friedman, Robert) Modiﬁed on 9/16/2020 (ybs, Deputy Clerk). (Entered: 09/15/2020)
49 PROTECTIVE ORDER. Signed by Judge Paul W. Grimm on 9/18/2020. (ybs, Deputy Clerk) (Entered: 09/18/2020)
50 Joint MOTION for Entry of Scheduling Order by B.G., C.V., E.V., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Friedman, Robert) (Entered: 10/05/2020)
51 PAPERLESS ORDER granting ECF 2 . All Plaintiffs are granted for good cause, and as unopposed, leave to proceed by their initials and to omit home addresses and counties from the Complaint. Signed by Judge Paul W. Grimm on 10/15/2020, nunc pro tunc 05/05/2020. (jc6s, Chambers) (Entered: 10/15/2020)
52 LETTER ORDER scheduling a telephone status conference call on October 23, 2020 at 1:30 p.m. Signed by Judge Paul W. Grimm on 10/16/2020. (ybs, Deputy Clerk) (Entered: 10/16/2020)
53 STIPULATION of Dismissal by C.V., E.V.(Friedman, Robert) (Entered: 10/22/2020)
54 PAPERLESS ORDER Approving 53 Stipulation of Dismissal as to Plaintiffs C.V. and E.V. The clerks ofﬁce is directed to remove these plaintiffs from the case. Signed by Judge Paul W. Grimm on 10/23/2020. (jc6s, Chambers) (Entered: 10/23/2020)
55 Joint MOTION for Entry of Scheduling Order by B.G., H.A.G., H.G.T., I.G., J.G., J.R., M.M., N.R., R.R., R.V.(Friedman, Robert) (Entered: 10/26/2020)
56 STIPULATION of Dismissal by J.R., M.M., R.R.(Friedman, Robert) (Entered: 12/14/2020)

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District of Maryland (CM/ECF Live 6.3.3)
57 ORDER granting 55 Joint Motion Scheduling Order. Signed by Judge Paul W. Grimm on 12/15/2020. (ybs, Deputy Clerk) (Entered: 12/15/2020)

12/15/2020 12/17/2020 12/22/2020

58 ORDER approving 56 Stipulation of Dismissal ﬁled by M.M., R.R., J.R.. Signed by Judge Paul W. Grimm on 12/15/2020. (ybs, Deputy Clerk) (Entered: 12/15/2020)
59 MOTION for Summary Judgment by B.G., H.A.G., H.G.T., I.G., J.G., N.R., R.V. (Attachments: # 1 Afﬁdavit of Robert D. Friedman)(Friedman, Robert) (Entered: 12/17/2020)
60 NOTICE of Appearance by Shannon Barrett on behalf of County of Los Angeles (Barrett, Shannon) (Entered: 12/22/2020)

12/22/2020 12/22/2020

61 MOTION to Appear Pro Hac Vice for Margaret L. Carter (Filing fee $100, receipt number 0416-9027387.) by County of Los Angeles(Barrett, Shannon) (Entered: 12/22/2020)
62 MOTION to Appear Pro Hac Vice for Daniel R. Suvor (Filing fee $100, receipt number 0416-9027414.) by County of Los Angeles(Barrett, Shannon) (Entered: 12/22/2020)

12/23/2020 12/23/2020

63 PAPERLESS ORDER granting 61 Motion to Appear Pro Hac Vice on behalf of Margaret Carter. Directing attorney Margaret Carter to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-ﬁling-password-reset. Signed by Clerk on 12/23/2020. (srd, Deputy Clerk) (Entered: 12/23/2020)
64 PAPERLESS ORDER granting 62 Motion to Appear Pro Hac Vice on behalf of Daniel R Suvor. Directing attorney Daniel R Suvor to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-ﬁling-password-reset. Signed by Clerk on 12/23/2020. (srd, Deputy Clerk) (Entered: 12/23/2020)

12/23/2020

65 Amicus Curiae APPEARANCE entered by David McAloon on behalf of CENTER ON BUDGET AND POLICY PRIORITIES(McAloon, David) (Entered: 12/23/2020)

12/23/2020

66 MOTION to Appear Pro Hac Vice for Tobias Loss-Eaton (Filing fee $100, receipt number 0416-9029158.) by CENTER ON BUDGET AND POLICY PRIORITIES(McAloon, David) (Entered: 12/23/2020)

12/23/2020

67 Consent MOTION for Leave to File Amicus Curiae Brief by CENTER ON BUDGET AND POLICY PRIORITIES (Attachments: # 1 Amicus Brief)(McAloon, David) (Entered: 12/23/2020)

12/23/2020

68 Local Rule 103.3 Disclosure Statement by CENTER ON BUDGET AND POLICY PRIORITIES identifying Corporate Parent CENTER ON BUDGET AND POLICY PRIORITIES for CENTER ON BUDGET AND POLICY PRIORITIES.(McAloon, David) (Entered: 12/23/2020)

12/23/2020

69 Consent MOTION for Leave to File Proposed Brief of Amici Curiae 39 Local Governments, the International City/County Management Association, the Metropolitan Area Planning Council, and the National League of Cities in Support of Plaintiffs' Motion for Summary Judgment by County of Los Angeles (Attachments: # 1 Proposed Brief of Amici Curiae 39 Local Governments, the International City/County Management Association, the Metropolitan Area Planning Council, and the National League of Cities in Support of Plaintiffs' Motion for Summary Judgment)(Barrett, Shannon) (Entered: 12/23/2020)

12/28/2020

70 PAPERLESS ORDER granting 66 Motion to Appear Pro Hac Vice on behalf of Tobias S Loss-Eaton. Directing attorney Tobias S Loss-Eaton to register online for CM/ECF at

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?137277780685271-L_1_0-1

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1/18/2021
12/29/2020 01/15/2021 01/15/2021

District of Maryland (CM/ECF Live 6.3.3)
http://www.mdd.uscourts.gov/electronic-case-ﬁling-registration. Signed by Clerk on 12/28/2020. (srd, Deputy Clerk) (Entered: 12/28/2020)
71 PAPERLESS ORDER granting 67 Motion for Leave to File; granting 69 Motion for Leave to File. The briefs ﬁled at ECF 67-1 and 69-1 are accepted as ﬁled. Signed by Judge Paul W. Grimm on 12/29/2020. (jc6s, Chambers) (Entered: 12/29/2020)
72 MOTION for Summary Judgment by Steven T. Mnuchin, United States of America (Attachments: # 1 Williamson Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Text of Proposed Order)(Williamson, Christopher) (Entered: 01/15/2021)
73 Memorandum re 72 MOTION for Summary Judgment , 59 MOTION for Summary Judgment in support of the United States' motion for summary judgment and in opposition to plaintiffs' motion for summary judgment ﬁled by Steven T. Mnuchin, United States of America.(Williamson, Christopher) (Entered: 01/15/2021)

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 Case 8:20-cv-01148-PWG Document 1 Filed 05/05/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

R.V., a minor, by and through his mother and next friend, N.R.; N.R.; E.V., a minor, by and through her mother and next friend, C.V.; C.V.; H.A.G., a minor, by and through his mother and next friend, H.G.T.; J.G., a minor, by and through her mother and next friend, H.G.T.; B.G., a minor, by and through her mother and next friend, H.G.T.; I.G., a minor, by and through her mother and next friend, H.G.T.; H.G.T.; R.R., a minor, by and through her parents and next friends, M.M. and J.R.; M.M.; and J.R., on behalf of themselves and all others similarly situated,1
Plaintiffs,
v.
STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury, 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220, and
UNITED STATES OF AMERICA, 950 Pennsylvania Avenue, NW Washington, DC 20530,
Defendants.

Civil Action No. 8:20-cv-1148 CLASS ACTION COMPLAINT

INTRODUCTION 1. This lawsuit challenges the intentional and discriminatory denial to U.S. citizen children of the benefits of emergency cash assistance distributed

1 Plaintiffs concurrently move to proceed under pseudonyms and to waive their obligations under Local Rule 102.2(a) to provide addresses and counties on the complaint.
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in response to the coronavirus pandemic, based solely on the fact that one or both of their parents are undocumented immigrants.
2. The spread of the novel coronavirus has caused not only tens of thousands of deaths and a nationwide public health crisis, but also the most severe economic downturn in years. Millions of businesses have been shuttered. More than 30 million people have filed for unemployment in less than 2 months. Lines of cars extend for blocks awaiting assistance from food banks in the modern-day equivalent of the Great Depression’s breadlines.
3. In an effort to stem the tide of this nationwide emergency, Congress passed, and President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Among other relief, the CARES Act provides a financial lifeline to millions of people by distributing through the tax system immediate means-tested cash assistance, which the federal government calls “economic impact payments.” The Act gives to certain eligible individuals up to $1,200 per adult and up to $500 for each of the adult’s children under age 17, and it directs Defendant Secretary of the Treasury Mnuchin to distribute these payments “as rapidly as possible.” See 26 U.S.C. § 6428.
4. The economic impact payments are designed to enable recipients to make basic expenditures—for example, on groceries, rent, and healthcare costs—while at the same time injecting cash flow into an economy that has
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been hit by a precipitous drop in demand. As of April 28, 2020, the government had distributed payments totaling nearly $160 billion to 89.5 million people. The government expects that, in total, Secretary Mnuchin will distribute more than 150 million economic impact payments under the CARES Act.
5. But the CARES Act discriminates against and excludes from this expansive aid program one of the country’s most vulnerable groups: U.S. citizen children of undocumented parents. The CARES Act denies these children desperately needed assistance by making the payments through the tax system only to those who are eligible for, and file tax returns using, a social security number—U.S. citizens and immigrants with work authorization.
6. Undocumented immigrants generally cannot obtain social security numbers and instead file their tax returns and pay their taxes using an individual taxpayer identification number (ITIN).2 Thus, U.S. citizen children of undocumented immigrants do not receive the benefits of the $500 economic impact payments specifically intended for children. This is true even when the children themselves, like Plaintiffs here, possess their own social security numbers and their parents pay taxes.
7. The refusal to distribute this benefit to U.S. citizen children
2 ITINs are tax processing numbers that the IRS issues to foreign-born individuals who are ineligible for a social security number. 26 U.S.C. § 6109; 26 C.F.R. § 301.6109-1.
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undermines the CARES Act’s goal of providing assistance to Americans in need, frustrates the Act’s efforts to jumpstart the economy, and punishes citizen children for their parents’ status—punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes. More fundamentally, this discrimination violates the equal protection principles embodied in the Fifth Amendment’s Due Process Clause.
8. This lawsuit is brought by seven U.S. citizen children, and their parents on their behalf, who have been denied the benefits of the $500 economic impact payments at the time when they need it most.
9. Plaintiffs R.V., E.V., H.A.G., J.G., B.G., I.G., and R.R.— collectively, “Citizen Children Plaintiffs”—on behalf of themselves and all others similarly situated, seek an injunction prohibiting Secretary Mnuchin from enforcing the CARES Act’s unconstitutional discrimination and a declaration that the CARES Act’s denial of benefits to U.S. citizen children of undocumented parents is unconstitutional. Citizen Children Plaintiffs also seek an order awarding them the economic impact payments they are due.
10. In addition, and in the alternative, Plaintiffs N.G., C.V., H.G.T., M.M., and J.R.—the parents of Citizen Children Plaintiffs and, collectively, “Parent Plaintiffs”—bring claims for the economic impact payments the United States has refused to distribute to them for the benefit of their children
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in violation of their children’s equal protection rights. JURISDICTION AND VENUE
11. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1343, and 1346. 12. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e). Plaintiffs reside in Maryland.
PARTIES 13. Plaintiff R.V. is a United States citizen and the child of Plaintiff N.R. R.V. has a valid social security number and is eight years old. R.V. relies on N.R. for support and did not provide more than half of his own support in 2019. But for the discriminatory denial of economic impact payments to U.S. citizen children of undocumented parents, R.V. would have received, through N.R., an economic impact payment of $500. 14. Plaintiff N.R. is an undocumented immigrant and the mother of Plaintiff R.V. N.R. resides in Maryland with R.V., whom she supports financially. N.R. is a resident alien for tax purposes, and she pays her state and federal taxes. N.R. was not claimed as anyone else’s dependent in 2018 or 2019. N.R. has an ITIN and does not have a social security number. 15. N.R. filed her 2019 tax return using her ITIN. N.R. filed as a head of household and her adjusted gross income was less than $35,000. N.R. did not receive an economic impact payment for herself or R.V. If the government distributed to N.R. the $500 benefit intended for children, she
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would use it to provide support for R.V. 16. Plaintiff E.V. is a United States citizen and the child of Plaintiff
C.V. E.V. is not married, has a valid social security number, and is nine years old. E.V. relies on C.V. for support and did not provide more than one half of her own support in 2019. But for the discriminatory denial of economic impact payments to citizen children of undocumented parents, E.V. would have received, through C.V., an economic impact payment of $500.
17. Plaintiff C.V. is an undocumented immigrant and the mother of Plaintiff E.V. C.V. resides in Maryland with E.V., whom she supports financially. C.V. is a resident alien for tax purposes, and she has paid her state and federal taxes. C.V. was not claimed as anyone else’s dependent in 2018 or 2019. C.V. has an ITIN and does not have a social security number.
18. C.V. filed her 2019 tax return using her ITIN. C.V. filed as a head of household and her adjusted gross income was less than $20,000. C.V. did not receive an economic impact payment for herself or E.V. If the government distributed to C.V. the $500 benefit intended for children, she would use it to provide support for E.V.
19. Plaintiffs H.A.G., J.G., B.G., and I.G. are United States citizens and the children of Plaintiff H.G.T., with whom they reside in Maryland. They are between the ages of three and eight years old. Each has a valid social security number. None provided more than one half of his or her own support
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in 2019. But for the discriminatory denial of economic impact payments to citizen children of undocumented parents, each would have received, through H.G.T., an economic impact payment of $500
20. Plaintiff H.G.T. is an undocumented immigrant and the mother of Plaintiffs H.A.G., J.G., B.G., and I.G. H.G.T. is a resident alien for tax purposes, and she has paid her state and federal taxes. H.G.T. was not claimed as anyone else’s dependent in 2018 or 2019. H.G.T. has an ITIN and does not have a social security number.
21. H.G.T. filed her 2018 tax return using her ITIN. H.G.T. filed as a head of household and acts as a full-time caretaker for her children. H.G.T. did not receive an economic impact payment for herself or her children. If the government distributed to H.G.T. the $500 benefits intended for children, she would have used the payments to support her children.
22. Plaintiff R.R. is a United States citizen and the daughter of Plaintiffs M.M., a United States citizen, and J.R., an undocumented immigrant. She lives with her parents in Maryland. R.R. is seven months old and has a valid social security number. R.R. relies on M.M. and J.R. for support and did not provide more than one half of her own support for either year. But for the discriminatory denial of economic impact payments for citizen children of undocumented parents, R.R. would have received, through her parents, an economic impact payment of $500.
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23. Plaintiffs M.M. and J.R. are married and the parents of R.R. M.M. and J.R. financially support R.R. J.R. is a resident alien for tax purposes and pays his state and federal taxes. Neither M.M. nor J.R. was claimed as anyone else’s dependent in 2018 or 2019. J.R. pays his state and federal taxes, has an ITIN, and does not have a social security number.
24. M.M. and J.R. filed their 2019 tax return using the status married filing jointly. Their adjusted gross income was below $150,000. M.M. and J.R. did not receive an economic impact payment for themselves or for R.R. If the government distributed to M.M. and J.R. the $500 benefit intended for children, they would use it to provide support for R.R.
25. Defendant Steven T. Mnuchin is the Secretary of the Treasury. Secretary Mnuchin is responsible for distributing economic impact payments under the CARES Act and, in his official capacity, has enforced the CARES Act’s discriminatory denial of benefits to U.S. citizen children of undocumented parents.
26. Defendant United States of America is sued as the appropriate defendant in an action for damages for money due under the CARES Act.
BACKGROUND 8

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I. Economic Impact Payments Under the CARES Act 27. Most income-earners, regardless of their immigration status, are
required to pay taxes. Through the Internal Revenue Service’s administration of the tax code, the federal government collects information about the annual income, employment, address, and bank accounts of the vast majority of adults in the United States. This infrastructure also enables the IRS to distribute money to taxpayers when they are due a refund on their income taxes.
28. In this way, the tax system, though normally focused on collecting money due to the federal government, provides the government a convenient mechanism for delivering cash benefits to a wide swath of residents on an emergency basis.
29. The CARES Act makes use of the tax infrastructure to distribute means-tested cash assistance through economic impact payments. Though administered through the tax code, economic impact payments are meanstested benefits just like various other benefits, such as housing and food assistance, that are intended to benefit both adults and children. As President Trump remarked upon signing the CARES Act into law, the Act “will deliver urgently needed relief to our nation’s families, workers, and businesses.”3
3 The White House, “Remarks by President Trump at Signing of H.R.748, The CARES Act,” https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signingh-r-748-cares-act/ (last visited May 4, 2020).
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30. Specifically, the CARES Act provides a cash payment of up to $1,200 for certain, but not all, statutorily “eligible” adults and up to $500 for each “qualifying child.” 26 U.S.C. § 6428(a). A married couple that files jointly can receive up to $2,400 for themselves and $500 for each qualifying child.
31. To be eligible to receive an economic impact payment under the CARES Act, a person must be a U.S. citizen or a “resident alien” and must not be claimed as a dependent on another person’s tax return. Id. § 6428(d). A person qualifies as a “resident alien” if she is lawfully admitted for permanent residence (i.e., a “green card” holder) or if she meets the “substantial presence” test, which requires residence in the United States for 183 days over the three years prior to the end of the taxable year, using a statutory formula to calculate days. 26 U.S.C. § 7701(b). Undocumented immigrants can qualify as resident aliens under the substantial presence test, but by virtue of the discriminatory provisions challenged in this case, see infra Section II, their eligibility under § 6428(d) does not entitle them to an economic impact payment.
32. To be a “qualifying child” warranting an economic impact payment of up to $500, a child must live with an eligible parent, be younger than 17 years old, and not provide more than half of his or her own financial support. Id. § 6428(a)(2); id. § 152(c).
33. The size of the payment distributed—a maximum of $1,200 for adults and $500 for children—is reduced by $5 for each additional $100 of the
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adult individual’s adjusted gross income that exceeds certain thresholds. a. For a married person filing jointly with her spouse, the income threshold is $150,000. 26 U.S.C. § 6428(c)(1). b. For a person filing as the head of household, the income threshold is $112,500. Id. § 6428(c)(2). c. For any other person, including individuals who are married filing separately from their spouse, the income threshold is $75,000. Id. § 6428(c)(3). 34. To determine the eligible individual’s income, the CARES Act
directs the Secretary to look at the individual’s income in her 2019 tax return or, if the individual has not yet filed a return for 2019, the individual’s income on her 2018 return.
35. Additionally, in implementing the CARES Act, Secretary Mnuchin has allowed anyone whose income is low enough that they are not required to file a return—meaning that their adjusted gross income is generally below $12,200 if single or $24,400 if married—to apply for economic impact payments through an online “Get My Payment” portal that the IRS has established.
II. The CARES Act’s Discriminatory Exclusion of U.S. Citizen Children
36. Not all who meet the “eligibility” requirements and means-testing provisions of the CARES Act are entitled to economic impact payments under the Act. That is because the CARES Act also includes a facially discriminatory
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condition that prevents the $500 payments intended for children from reaching millions of U.S. citizen children whose parents are undocumented immigrants.
37. The CARES Act accomplishes this discriminatory exclusion by providing economic impact payments only where all filers on a tax return, and their qualifying children, have social security numbers. Id. § 6428(g). Social security numbers, by law, can be issued only to citizens and immigrants with work authorization. 20 C.F.R. § 422.104(a).4 The CARES Act facially discriminates by cross-referencing to a statute that defines social security number to mean such numbers issued “to a citizen” or to an immigrant with work authorization. 26 U.S.C. § 6428(g)(2)(A); id. § 24(h)(7). Thus, undocumented immigrants without work authorization, who must use their ITINs to pay taxes, cannot receive economic impact payments for themselves or for their U.S. citizen children.
38. By making a social security number a prerequisite for receiving an economic impact payment, the CARES Act not only intentionally denies adult undocumented immigrants the otherwise available $1,200 payment, but also intentionally denies their U.S. citizen children—solely because of the parents’ alienage—the otherwise available $500 payment.
4 Social security numbers also can be issued to immigrants entitled to federally funded benefits, but those immigrants are denied the benefits of the CARES Act as well. See 26 U.S.C. § 6428(g)(2)(A).
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39. For U.S. citizen children who have only undocumented parents, the CARES Act makes it impossible for the children to receive any benefit.
40. For U.S. citizen children who have one undocumented parent and one citizen parent or immigrant parent with a social security number (“mixedstatus parents”), the parent with a social security number can secure the child’s benefit by filing a 2019 tax return under “married filing separately” status rather than “married filing jointly” status. Doing so, however, often will increase the family’s tax burden in an amount that reduces, or may eliminate entirely, any benefit from securing economic impact payments for qualifying children. Thus, U.S. citizen children who have mixed-status parents are denied benefits equal to those available to similarly situated U.S. citizen children who have no undocumented parents.
41. As Representative TJ Cox observed during debates on the CARES Act, this scheme “punishes mixed-status households and denies some American citizens benefits they deserve.”
42. The CARES Act is an outlier in denying government aid intended to benefit children to U.S. citizen children simply because of their parents’ undocumented status. Many other means-tested federal benefits programs provide benefits to all eligible U.S. citizen children regardless of their parents’ undocumented status. For example:
a. The child tax credit reaches citizen children even if their parents
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are undocumented.
b. Supplemental Nutrition Assistance Program benefits—commonly known as SNAP or “food stamps”—can be claimed for citizen children who have undocumented parents.
c. Benefits from the Special Supplemental Nutrition Program for Women, Infants and Children—commonly known as WIC—flow to citizen children.
d. Temporary Assistance for Needy Families (TANF) benefits— commonly known as welfare benefits—can be claimed for citizen children who have undocumented parents.
e. Housing assistance can be claimed for citizen children who have undocumented parents.5
43. Although the means of distributing the benefit to the child vary
from program to program—in some, the benefit is distributed to the
“household” whereas in the CARES Act, as a result of the use of the tax
infrastructure, the benefit is distributed in the first instance to the parent as
taxpayer—each of these programs provides additional funds specifically
intended to aid children as distinct from their relatives. It is only the CARES
Act that discriminates against a broad class of U.S. citizens.
INJURY TO PLAINTIFFS
5 The Department of Housing and Urban Development has issued a notice of proposed rulemaking that would amend federal regulations to bar U.S. citizen children from receiving housing assistance if they live with undocumented parents. See Housing and Community Development Act of 1980: Verification of Eligible Status, 84 FR 20589 (May 10, 2019), available at https://perma.cc/H87G-ZV2A. If allowed to take effect, this proposed rule, like the CARES Act, would unconstitutionally discriminate against citizen children and relegate them to second-class citizenship.
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44. The discriminatory treatment the CARES Act inflicts on plaintiffs, and their relegation to second-class citizenship, is a serious injury in its own right.
45. But by denying U.S. citizen children cash assistance now for discriminatory reasons—in the midst of a pandemic that has caused their families, like many others, serious hardships—the CARES Act has inflicted particularly severe injuries on an especially vulnerable group that numbers in the millions.
46. Undocumented immigrants, on whom these children rely for support, work in large numbers in some of the businesses—including restaurant, cleaning, retail, and child-care services—that have been hardest hit by job loss in the past two months.
47. Critically, these individuals cannot obtain unemployment insurance—which the CARES Act increased in light of its importance amid the current wave of job loss, 15 U.S.C. §§ 9021-9032—as a stopgap measure. This leaves their U.S. citizen children without critical income needed for basic daily needs such as food, shelter, and healthcare.
48. Even for those who have been lucky enough to keep their employment, undocumented immigrants historically occupy low-wage jobs that, even under normal circumstances, barely provide enough income for their children.
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49. These families are under aggravated economic duress because of the pandemic, which has generated new necessary expenses for cleaning supplies, masks, and other preventative measures taken to avoid getting infected as well as expenses related to learning aids for children who are no longer attending school in person.
50. The experiences of the named Plaintiffs illustrate these harms. 51. Plaintiffs R.V. and N.R. Because of the pandemic, N.R. lost her job at a restaurant. She has been unable to find work since. Her partner, with whom she and R.V. live, has been unable to work because he is sick with coronavirus and has quarantined himself. As a result, N.R. and R.V. currently have no income. As she continues to look for work, N.R. relies on community support and food from R.V.’s school system to provide for R.V. 52. Plaintiffs E.V. and C.V. Because of the pandemic, the catering company for which C.V. had worked closed, and C.V.’s only income now is from part-time work at a restaurant. Due to her loss in income, C.V. cannot pay rent and fears she and E.V. will be evicted if the current prohibition on evictions is lifted or her landlord disregards it. Her loss of income also has left her unable to fully provide for E.V., and so E.V. must rely on community support and school-provided food. 53. Plaintiffs H.A.G., J.G., B.G., I.G., and H.G.T. Before the pandemic, H.A.G., J.G., B.G., and I.G. received necessary financial support
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from a family member, who has now lost his job because of the pandemic. With this loss in income, H.G.T., who lives with and cares for the children full time, does not know how they will pay rent in the coming months. They now rely on community support and, for the youngest, the Special Supplemental Nutrition Program for Women, Infants and Children for food. The pandemic also has made having an internet connection necessary as her oldest children attempt to attend school virtually, but H.G.T. cannot afford her own internet plan and must rely on a neighbor’s. She does not know how long this arrangement will last.
54. Plaintiffs R.R., J.R., and M.M. To ensure that he and M.M. fully provide for R.R., J.R. has continued to work during the pandemic in the face of serious health concerns. In addition to on-the-job health concerns, J.R.’s job requires him to travel long distances; to avoid risks associated with overnight travel, J.R. has endured a daily four-hour commute to keep his job. Additionally, J.R.’s employer is in a financially precarious position, and J.R.’s job security—and the family financial security—is uncertain as a result.
55. For each of these U.S. citizen children, the economic impact payments would put food on the table for weeks and help keep a roof over their heads.
CLASS ALLEGATIONS 56. Plaintiffs seek to certify two classes.
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57. First, Citizen Children Plaintiffs seek to certify a nationwide class defined as: all U.S. citizen children under age 17 who have been or will be denied the benefits of economic impact payments for “qualified children” under the CARES Act solely because the children have a parent who is an undocumented immigrant who has no social security number.
58. Although the exact size of the class is an unknown, it numbers in the millions.6 Joinder of this substantial class is impractical.
59. There are multiple questions of law and fact common to the class. These include:
a. What level of scrutiny applies to the CARES Act’s discrimination against citizen children;
b. Whether the CARES Act’s discrimination against citizen children serves any important government interest; and
c. What the appropriate remedy is for the CARES Act’s violation of the equal protection component of the Due Process Clause.
60. Citizen Children Plaintiffs’ claims are typical of the class. But for their parents’ undocumented status, Citizen Children Plaintiffs would receive the benefits of economic impact payments intended for children. The answer to whether Defendants have violated Citizen Children Plaintiffs’ rights will determine whether they have violated the rights of all other proposed class
6 Randy Capps, et al., A Profile of U.S. Children with Unauthorized Immigration Parents, Migration Policy Institute (2016), available at https://www.migrationpolicy.org/research/profile-uschildren-unauthorized-immigrant-parents.
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members. 61. Citizen Children Plaintiffs will serve as adequate class
representatives. Their interests are aligned with the interests of the class. There is no known conflict among class members.
62. Citizen Children Plaintiffs are represented by counsel competent to serve as class counsel. Together, counsel have expertise in immigration law, tax law, and constitutional law and have been appointed as class counsel in other federal litigation.
63. Certification of the class for injunctive relief is appropriate under Rule 23(b)(2) because Secretary Mnuchin has acted on grounds that apply generally to the whole class. Additionally, certification of this class for damages is appropriate under Rule 23(b)(1) because separate actions create a risk of adjudications requiring incompatible standards of conduct for Defendants. Additionally, class treatment is appropriate under Rule 23(b)(3) because the common questions of fact and law predominate over questions specific to individual class members. The common questions of law will determine the liability of the United States to every member of the class. Class-wide treatment of liability is a superior means of determining the legality of the CARES Act than potentially thousands of other lawsuits. Although the amount of the economic impact payment for individual class members may vary, the amount can be calculated in a ministerial fashion based on
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information in tax returns that are, or by July 15, 2020, will be, in the United States’ possession or, for individuals who are not required to file returns, based on information that can be provided through a system similar to the United States’ existing online portal for non-filers. As a result, class-wide adjudication of the United States’ liability is the most efficient means of adjudication.
64. Second, Plaintiff Parents seek to certify a nationwide class for damages. The class is defined as: persons whose U.S. citizen children have not received the benefits of economic impact payments for “qualified children” under the CARES Act solely because at least one of the children’s parents is an undocumented immigrant who has no social security number.
65. Although the exact size of the class is an unknown, it numbers in the millions. Joinder of this substantial class is impractical.
66. There are multiple questions common to the class. These include: a. What level of scrutiny applies to the CARES Act’s discrimination against citizen children; b. Whether the CARES Act’s discrimination against citizen children serves any important government interest; and c. What the appropriate remedy is for the CARES Act’s violation of the equal protection component of the Due Process Clause.
67. Plaintiff Parents’ claims are typical of the class. The United States would have distributed economic impact payments intended for children to Plaintiff Parents but for the undocumented status of at least one parent. The
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answer to whether the United States has illegally withheld money owed to Plaintiff Parents will determine whether it has illegally withheld money owed to all other proposed class members.
68. Plaintiff Parents will serve as adequate class representatives. Their interests are aligned with the interests of the class. There is no known conflict among class members.
69. Plaintiff Parents are represented by counsel competent to serve in as class counsel. Together, counsel have expertise in immigration law, tax law, and constitutional law and have been appointed as class counsel in other federal litigation.
70. Class treatment is appropriate under Rule 23(b)(1) because separate actions create a risk of adjudications requiring incompatible standards of conduct for Defendants. Additionally, class treatment is appropriate under Rule 23(b)(3) because the common questions of fact and law predominate over questions specific to individual class members. The common questions of law will determine the liability of the United States to every member of the class. Class-wide treatment of liability is a superior means of determining the legality of the CARES Act than potentially thousands of other lawsuits. Although the amount of the economic impact payment for individual class members may vary, the amount can be calculated in a ministerial fashion based on information in tax returns that are, or by July 15, 2020, will be, in the United
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States’ possession or, for individuals who are not required to file returns, based on information that can be provided through a system similar to the United States’ existing online portal for non-filers. As a result, class-wide adjudication of the United States’ liability is the most efficient means of adjudication.
CLAIMS FOR RELIEF COUNT I
Citizen Children Plaintiffs, on behalf of themselves and others similarly situated, against Defendant Mnuchin – violation of the Fifth Amendment of the United States Constitution 71. Citizen Children Plaintiffs repeat and incorporate by reference
each of the allegations set forth in each of the preceding paragraphs of this Complaint.
72. The CARES Act intentionally discriminates against U.S. citizen children who have undocumented parents, including Citizen Children Plaintiffs, by denying them the benefit of the Act’s economic impact payments for children. This punishes citizen children for their parents’ immigration status and treats them worse than similarly situated citizen children whose parents are U.S. citizens or immigrants eligible to obtain social security numbers, in violation of the equal protection principles embodied in the Fifth Amendment of the Due Process Clause. In effect, the CARES Act renders U.S. citizen children like Citizen Children Plaintiffs second-class citizens.
73. Denying U.S. citizen children economic impact payments serves
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no important government interest. It undermines the United States’ goals of providing urgent cash assistance for Americans to obtain basic necessities and of injecting money into the economy during the crisis brought on by the coronavirus pandemic.
74. Denying U.S. citizen children economic impact payments is also not substantially related to any interest the government has in denying assistance to undocumented relatives of citizen children. The CARES Act denies economic impact payments to undocumented adults and children. Denying U.S. citizen children the economic impact payments intended specifically for children does not further the aim of denying benefits to undocumented immigrants.
COUNT II Citizen Children Plaintiffs, on behalf of themselves and others similarly situated, against Defendant United States – action for money damages
under 26 U.S.C. § 6428 and 28 U.S.C. 1346(a)(2) 75. Citizen Children Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 76. 26 U.S.C. § 6428 is a money-mandating statute that obligates the United States to disburse funds for the benefit of Citizen Children Plaintiffs. 77. The CARES Act intentionally discriminates against U.S. citizen children who have undocumented parents by denying them the benefit of the
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Act’s economic impact payments for children. This punishes citizen children for their parents’ immigration status and treats them worse than similarly situated citizen children whose parents are U.S. citizens or immigrants eligible to obtain social security numbers, in violation of the equal protection principles embodied in the Fifth Amendment of the Due Process Clause. In effect, the CARES Act renders U.S. citizen children like Citizen Children Plaintiffs second-class citizens.
78. Denying U.S. citizen children economic impact payments serves no important government interest. It undermines the United States’ goals of providing urgent cash assistance for Americans to obtain basic necessities and of injecting money into the economy during the crisis brought on by the coronavirus pandemic.
79. Denying U.S. citizen children economic impact payments is also not substantially related to any interest the government has in denying assistance to undocumented relatives of citizen children. The CARES Act denies economic impact payments to undocumented adults and children. Denying U.S. citizen children the economic impact payments intended specifically for children does not further the aim of denying benefits to undocumented immigrants.
80. Defendant United States’ constitutional violation has denied Citizen Children Plaintiffs the $500 economic impact payments to which they
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otherwise are entitled. COUNT III
Parent Plaintiffs, and all others similarly situated, against the United States – Action for money damages under 26 U.S.C. § 6428 and 28 U.S.C.
§ 1346(a)(2) 81. Parent Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 82. Parent Plaintiffs have a close relationship with their children. Each provides financial and/or emotional support and serves as a primary caretaker. 83. 26 U.S.C. § 6428 is a money-mandating statute that obligates the United States to disburse funds to Parent Plaintiffs for the benefit of their U.S. citizen children. 84. The refusal to disburse the economic impact payments intended for children to Parent Plaintiffs, even though their children are United States citizens, violates Citizen Children Plaintiffs’ equal protection rights embodied in the Fifth Amendment. 85. The CARES Act intentionally discriminates against U.S. citizen children who have undocumented parents by denying them the benefit of the Act’s economic impact payments for children. This punishes citizen children for their parents’ alienage and treats them worse than similarly situated citizen children whose parents are U.S. citizens or immigrants who are eligible to
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obtain social security numbers, in violation of the equal protection principles embodied in the Fifth Amendment of the Due Process Clause. In effect, the CARES Act renders U.S. citizen children like Citizen Children Plaintiffs second-class citizens.
86. Denying U.S. citizen children economic impact payments serves no important government interest. It undermines the United States’ goals of providing urgent cash assistance for Americans to obtain basic necessities and of injecting money into the economy during the crisis brought on by the coronavirus pandemic.
87. Denying U.S. citizen children economic impact payments is also not substantially related to any interest the government has in denying assistance to undocumented relatives of citizen children. The CARES Act denies economic impact payments to undocumented adults and children. Denying U.S. citizen children the economic impact payments intended specifically for children does not further the aim of denying benefits to undocumented immigrants.
88. Defendant United States’ constitutional violation has denied Citizen Children Plaintiffs, and all others similarly situated, the $500 economic impact payments to which they otherwise are entitled.
RELIEF REQUESTED Wherefore, Plaintiff respectfully requests that this Court:
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A. Declare unconstitutional the CARES Act’s denial of the distribution of

economic impact payments for the benefit of Citizen Children Plaintiffs

and all similarly situated U.S. citizen children because of their parents’

undocumented status;

B. Enjoin Secretary Mnuchin from refusing to distribute economic impact

payments for the benefit of Citizen Children Plaintiffs and all similarly

situated U.S. citizen children because of their parents’ undocumented

status;

C. Award damages to Citizen Children Plaintiffs and all similarly situated

citizen children in amounts of up to $500 for each citizen child, in

accordance with the thresholds in the CARES Act;

D. In the alternative, award damages to Plaintiff Parents and all similarly

situated parents of citizen children in amounts of up to $500 for each

citizen child, in accordance with the thresholds in the CARES Act;

E. Award Plaintiffs their reasonable fees, costs, and expenses, including

attorneys’ fees, pursuant to 28 U.S.C. § 2412; and

F. Award such additional relief as the interests of justice may require.

May 5, 2020

Respectfully submitted,

/s/ Jonathan L. Backer Jonathan L. Backer (D. Md. 20000) Robert D. Friedman* Amy L. Marshak* Mary B. McCord*

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INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 (202) 662-9835 jb2845@georgetown.edu
Leslie Book* Villanova University Charles Widger School of Law 299 N. Spring Mill Rd. Villanova, PA 19085 (610)519-6416 book@law.villanova.edu Attorneys for Plaintiffs *Pro hac vice motions forthcoming
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 Case 8:20-cv-01148-PWG Document 32 Filed 05/22/20 Page 1 of 5 U.S. Department of Justice

Trial Attorney: Christopher J. Williamson Tel: 202-307-2250 / Fax: 202-514-6866 Christopher.J.Williamson@usdoj.gov
REZ:DSM:CJWilliamson

Tax Division
Please reply to:

Civil Trial Section, Eastern Region P.O. Box 227 Washington, D.C. 20044

DJ 5-35-12736 / CMN 2020100874

The Honorable Paul W. Grimm United States District Court for the District of Maryland 6500 Cherrywood Lane, Suite 465A Greenbelt, MD 20770
Re: R.V., et al., v. Mnuchin, et al., 8:20-CV-1148-PWG (D. Md.)
Dear Judge Grimm,
Pursuant to the Court’s May 14, 2020 order, Dkt. 26, the United States submits this letter briefly setting forth grounds for dismissing plaintiffs’ complaint under Fed. R. Civ. P. 12(b).
Plaintiffs are seven children who, on behalf of a purported class, seek to invalidate certain eligibility requirements to obtain a refundable tax credit under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). They allege they are U.S. citizens whose parents are not permitted advance payment of an additional $500 amount added to the tax credits of “eligible individuals” with a qualifying child. They seek a declaration that 26 U.S.C. § 6428(g) is an unconstitutional alienage classification and demand payment of $500 per child as damages.
The complaint should be dismissed. First, since qualifying children are not entitled to the tax credit, plaintiffs have suffered no cognizable injury and lack standing. Second, there is no waiver of sovereign immunity conferring jurisdiction over this action. Third, plaintiffs fail to state a claim because 26 U.S.C. § 6428(g) is not an impermissible alienage classification.
1. Background of the CARES Act and plaintiffs’ claims.
The CARES Act creates a refundable tax credit through 26 U.S.C. § 6428 (the “CARES Act credit”). Section 6428(a) affords eligible taxpayers a refundable tax credit against federal income tax liability for the 2020 tax year. Eligible taxpayers are entitled to a credit of $1,200, or $2,400 in the case of eligible taxpayers filing a joint return, plus $500 per qualifying child. 26 U.S.C. § 6428(a). A qualifying child is not entitled to the credit. Instead, an eligible taxpayer’s credit is determined, in part, by the number of qualifying children included on her tax return.
The CARES Act credit is implemented, in part, through advance refunds, also referred to as economic impact payments. Section 6428(f) provides that an eligible taxpayer may receive advance payment of the CARES Act credit during 2020. Each eligible taxpayer is treated as having made an overpayment of her 2019 federal income tax liability. See id. § 6428(f). This treatment enables the IRS to issue an advance refund of the credit to expedite relief.
Section 6428(f)(3)(A) provides that advance payments are to be made “as rapidly as possible,” but does not confer upon eligible taxpayers, or their dependents, any justiciable right to payment of an advance refund. Nor does the Act confer any right to receive funds at a particular time or in a particular manner. If the IRS does not issue an advance refund to an eligible taxpayer, for any reason, there is no statutory mechanism to compel advance payment.

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Not every taxpayer may claim a CARES Act credit. It is limited based upon income and is available only to a statutorily defined “eligible individual,” id. §§ 6428(c), (d). The 2008 Economic Stimulus Act, Pub. L. No. 110-185 (“ESA”), contained a substantially similar refundable tax credit with the same eligibility requirement that is at issue in this lawsuit. Both the ESA and the CARES Act define an “eligible individual” as anyone other than a nonresident alien or a dependent as defined in section 152. See 26 U.S.C. § 6428(d). Plaintiffs do not challenge this provision. Rather, they fault section 6428(g), which disallows any credit to an “eligible individual” who does not include on her tax return a valid social security number (“SSN”) for the taxpayer, her spouse (if filing a joint return), and any qualifying child. See id. §§ 6428(g)(1), (2). An otherwise eligible U.S. citizen married to a spouse without a valid SSN may file a separate return or amend her filing status by July 15, 2020, and obtain the credit (including any additional credit amount based on the number of her qualifying children). See id.
2. Plaintiffs lack both Article III and statutory standing.
Plaintiffs (or their representatives) have no standing to challenge the CARES Act credit’s eligibility rules, since, as qualifying children, they are not, and cannot be, recipients of the credit. Section 6428 does not entitle any qualifying child to the credit, even if both parents have SSNs.
To have standing to sue, plaintiffs must show they suffered a concrete and particularized injury-in-fact that is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). They also must establish a fairly traceable causal connection between the injury and defendants’ conduct and that the alleged harm will be redressed by a favorable ruling. Id. at 56061. The “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
Here, plaintiffs cannot establish injury in fact because they are not “among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972). They concede CARES Act credits are available as advance refunds only to eligible taxpayers. See Dkt. 1, ¶67 (alleging defendants “withheld money owed to Plaintiff Parents”). The credit amount for eligible taxpayers increases based on the number of qualifying children. See 26 U.S.C. §§ 6428(a)(2), (d)(2). That is because the credit is “‘accorded by Congress to the parent(s) filing the tax return(s), since the expenses of raising the child are borne by the parent(s). It is not a severable stimulus payment.’” In re Smith, 393 B.R. 205, 209 n.11 (Bankr. S.D. Ind. 2008) (emphasis in original) (citation omitted) (describing the 2008 ESA tax credit, which was also paid in advance).
Like other provisions of the Tax Code, the CARES Act credit inures to parents, not children. See In re Parisi, 2010 WL 1849386, at *2 (Bankr. E.D.N.Y. May 6, 2010) (“there is no evidence that the child tax credit was intended to be given to parents in trust for their children with the parents being the conduit”). Congress created tax credits, like the Child Tax Credit, to reduce the individual income tax burden of eligible taxpayers with dependent children, given the financial responsibilities of raising dependent children. In re Hardy, 787 F.3d 1189, 1193 (8th Cir. 2015). Plaintiffs themselves have suffered no “direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citation omitted).
In similar contexts like child support, courts repeatedly have held that a child does not have the direct interest in the suit needed for standing, because payments are made to her parents.

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See, e.g., Matter of Hosier, 875 F.2d 128, 129 (7th Cir. 1989); Kelleher v. Kelleher, 316 N.E.2d 212, 215 (Ill. App. 1974); Ben Ami v. Ben Ami, 168 N.E.2d 723 (N.Y. 1960). Any injury asserted by such plaintiffs is not “concrete and particularized,” since the alleged injury does not “affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1.
Plaintiffs cannot overcome their lack of a cognizable interest in a CARES Act credit by seeking to litigate on behalf of their parents, or having their parents litigate on their behalf. Under prudential or statutory standing, a litigant is barred from raising another person’s legal rights or adjudicating general grievances, and her complaint must fall in the “zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126-29 (2014). Courts thus generally do not permit litigating the tax liability of others, or suing to obtain another’s benefits. See, e.g., Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 36 (1976); Warth v. Seldin, 422 U.S. 490, 498-501 (1975). It is improper for “one person to litigate about the amount of someone else’s taxes (or someone else’s subsidies, which are taxes in reverse).” Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014); see also United States v. Williams, 514 U.S. 527, 536 (1995) (tax refund suit limited to those against whom a tax was assessed or collected).
3. The Court does not have subject matter jurisdiction over plaintiffs’ claims.
Plaintiffs’ failure to affirmatively establish jurisdiction requires dismissal of their complaint. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The United States and its officials cannot be sued without an “unequivocally expressed” statutory waiver of sovereign immunity. Lane v. Pena, 518 U.S. 187, 192 (1996). Waivers are strictly construed “so that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text requires[.]” F.A.A. v. Cooper, 566 U.S. 284, 290 (2012).
The CARES Act itself does not contain any jurisdictional grant or waiver of sovereign immunity. See Pub. L. No. 116-136. Instead, plaintiffs allege jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1346(a)(2). See Dkt. 1, ¶11. However, those statutes do not permit this lawsuit. Instead, plaintiffs with standing must bring the claims in a properly filed refund action.
Neither section 1331 nor section 1343 provide the unequivocally expressed waiver of sovereign immunity necessary to proceed against the United States. Section 1331 “‘is not a general waiver of sovereign immunity. It merely establishes a subject matter that is within the competence of federal courts to entertain.’” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (citation omitted). Section 1343, originally passed as part of the Civil Rights Act of 1871, also does not waive sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 341 (1979).
The Little Tucker Act, 28 U.S.C. § 1346(a), creates jurisdiction in a district court and waives sovereign immunity for an action falling within its jurisdictional grant. See United States v. Mitchell, 463 U.S. 206, 212-18 (1983); United States v. Testan, 424 U.S. 392, 397-98 (1976). However, section 1346(a)(2) does not create a substantive cause of action; in order to come within its jurisdictional reach and waiver, a plaintiff must identify a separate “money-mandating” statute that creates the right to compensation for damages she sustained due to government misconduct. Mitchell, 463 U.S. at 217; Testan, 424 U.S. at 398. Money-mandating provisions are “uncommon.” Maine Comm. Health Options v. United States, 140 S. Ct. 1308, 1327-29 (2020).
The CARES Act cannot be fairly interpreted as mandating compensation by the United

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States for any alleged harm it caused to plaintiffs. See id. (quoting Mitchell, 463 U.S. at 216-17). 26 U.S.C. § 6428 is a tax statute; there is no waiver of sovereign immunity authorizing damages related to taxes under 28 U.S.C. § 1346(a)(2). Rather, any challenge to the denial of a credit is governed by section 1346(a)(1), which permits such suits only under 26 U.S.C. § 7422. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 5-8 (2008); Webb v. United States, 66 F.3d 691, 693 (4th Cir. 1995). A section 7422 refund suit is also the vehicle to raise a constitutional challenge to the denial of a refund or credit. See Clintwood, 553 U.S. at 9-10.
Congress expressly limited the circumstances under which a plaintiff may bring a tax refund suit; a section 7422 action can be brought only if certain jurisdictional prerequisites are fully met. See id. at 5-8; Webb, 66 F.3d at 693; United States v. Dalm, 494 U.S. 596 (1990); see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008). A taxpayer first must file a timely administrative claim with the IRS, see 26 U.S.C. §§ 6511(a), 7422(a), and the IRS must deny the claim or fail to act upon it within six months. See 26 U.S.C. § 6532(a)(1); 28 U.S.C. §§ 1346(a)(1), 1491; United States v. Felt & Tarrant Mfg., 283 U.S. 269, 272 (1931). The exhaustion requirement applies to all refund suits, including claims that provisions of the Tax Code violate the Constitution. See Clintwood, 553 U.S. at 9. If a plaintiff fails to exhaust administrative remedies in this manner, her lawsuit must be dismissed for lack of jurisdiction. Beckwith Realty, Inc. v. United States, 896 F.2d 860, 863 (4th Cir. 1990); Lewis v. Sadler, 498 F.2d 395, 399-400 (4th Cir. 1974); Brest v. Lewis, 2009 WL 4679649, at *3 (N.D. Ill. Dec. 7, 2009) (barring challenge to withholding of ESA advance refund because plaintiff failed to exhaust remedies); Fatani v. I.R.S., 2009 WL 763059, at *1 (D. Utah Mar. 23, 2009) (same).
Neither plaintiffs, see Count II, nor their parents, see Count III, may seek damages under section 1346(a)(2). In order to challenge ineligibility for the CARES Act credit, a taxpayer may proceed only by a refund action, filed after she exhausts administrative remedies, even if she thinks exhaustion is futile. See Felt, 283 U.S. at 272-73. Plaintiffs’ parents may submit a 2020 tax return in 2021 and file a claim with the IRS alleging entitlement to the credit because section 6428(g) is unconstitutional. Until they do so, the Court is without jurisdiction.
4. Plaintiffs fail to state an equal protection claim based on their parents’ alienage.
Plaintiffs allege that the SSN requirement of section 6428(g)(1) discriminates due to their parents’ alienage. But section 6428(g)(1) turns on whether a person has an SSN, not alienage. And, even if the exclusion implicates alienage, it has a rational basis.
An SSN is not a proxy for alienage. Rather, it authorizes an individual to work in the United States. See 20 C.F.R. § 422.104. Many non-U.S. citizens have an SSN, and they are entitled to receive a CARES Act credit if they otherwise meet section 6428’s requirements. By contrast, “nonresident alien” status, for taxation purposes, generally relates to time spent in the United States. See 26 U.S.C. § 7701(b); IRS Pub. 519. Unlike a nonresident, a resident must pay tax on worldwide income. See 26 C.F.R. § 1.1(b). Section 6428(d)(1) precludes nonresident aliens from claiming the credit.
The Constitution permits Congress to impose this policy distinction based on work authorization. See McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980) (requiring all family members provide SSNs as a condition of public aid eligibility does not violate equal protection). The Tax Code contains multiple provisions excluding non-SSN holders from credits available to SSN holders. For example, the Earned Income Tax Credit requires taxpayers to provide SSNs for

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both spouses filing a joint return and any qualifying child. See 26 U.S.C. § 32(c)(1), (c)(3), (m). Likewise, a full Child Tax Credit is available only to those who include the qualifying child’s SSN on the return. See 26 U.S.C. § 24(h)(7). The 2008 Economic Stimulus Act included a tax credit, which was also payable in advance “as rapidly as possible,” with the same eligibility limitation at issue here. See 26 U.S.C. § 6428(e)(3) (2008).
Further, to the extent section 6428(g) implicates alienage, it does not violate equal protection. Fifth Amendment equal protection “is not an obligation to provide the best governance possible;” it only requires legislation to “classify the persons it affects in a manner rationally related to legitimate governmental objectives.” Schweiker v. Wilson, 450 U.S. 221, 230 (1981). The federal government has “broad, undoubted power over . . . immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). Rational basis review applies to federal laws classifying individuals based on alienage. See Mathews v. Diaz, 426, U.S. 67, 81-85 (1976). Likewise, Courts must give “substantial deference” to tax classifications, because Congress has broad latitude in the area of tax. Mueller v. Allen, 463 U.S. 388, 396 (1983). Ultimately, “the Fifth Amendment cannot apply” to reasonable classifications of taxpayers. Barclay & Co. v. Edwards, 267 U.S. 442, 450 (1925).
Under rational basis review, a statute like the CARES Act “is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to” a legitimate interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). A statute with a reasonable basis does not violate the Constitution even if it “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911); see also FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (A “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”).
Section 6428(g) is rationally based because it assists with the efficient and accurate implementation of the CARES Act. See Lewis v. Thompson, 252 F.3d 567, 583 (2d Cir. 2001) (finding rational basis for distinction based on undocumented status). To further its policy goal of providing the credit only to individuals authorized to work, and to effectuate section 6428(d)(1), Congress generally precluded credit claims submitted by individuals without SSNs, whether the claim is submitted on a joint or individual return. This decision was reasonable given Congress’ desires to disburse aid efficiently, avoid payments to statutorily ineligible individuals, and reduce fraud and abuse. It is irrelevant whether Congress could have selected a different method to achieve the same result, and the wisdom of policy is not at issue. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012); Brushaber v. Union Pac. R. Co., 240 U.S. 1, 26 (1916).
*** For the foregoing reasons, plaintiffs’ complaint should be dismissed.
Respectfully submitted,
/s/ Christopher J. Williamson CHRISTOPHER J. WILLIAMSON JORDAN A. KONIG Trial Attorneys

 
 Case 8:20-cv-01148-PWG Document 33 Filed 05/29/20 Page 1 of 6
INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER
May 29, 2020 The Honorable Paul W. Grimm United States District Court for the District of Maryland 6500 Cherrywood Lane, Suite 465A Greenbelt, MD 20770
Re: R.V., et al., v. Mnuchin, et al., 8:20-CV-1148-PWG (D. Md.) Dear Judge Grimm,
The Coronavirus Aid, Relief, and Economic Security (CARES) Act has provided immediate means-tested financial assistance to tens of millions of Americans grappling with the economic fallout from the coronavirus pandemic. This case challenges the discriminatory denial of that assistance to one subset of U.S. citizens: children with one or more parents who are undocumented immigrants. This disparate treatment—which punishes children for their parents’ status—lacks any substantial relation to an important government interest and, consequently, violates the equal protection component of the Fifth Amendment.
As explained below, the grounds for dismissal that Defendants have asserted lack merit, and this case should proceed to summary judgment motion practice. I. The CARES Act’s Structure and Plaintiffs’ Claims
Section 2201(a) of the CARES Act, codified at 26 U.S.C. § 6428, uses the federal tax infrastructure to provides means-tested financial assistance, termed “economic impact payments” (EIPs), of up to $1,200 for adults and $500 for children where certain prerequisites are met. First, the tax filer’s income must fall below a statutory threshold. Id. § 6428(c). Second, adults must be “eligible,” meaning not a dependent of another person and either a citizen or a resident alien— where residency is defined by durational presence in the United States, not lawful status. Id. §§ 6428(d), § 7701(b)). Third, children must “qualify[]” in order to receive the additional benefit through a tax-filing parent. Id. § 6428(a)(2). This means that the child must be under age 17, not depend primarily on herself for support, and reside with the tax-filing parent. Id. § 24(c). A tax filer can satisfy these requirements in calendar year 2020 based on her 2019 or 2018 tax return, id. § 6428(f), or in calendar year 2021 based on her 2020 tax return, id. § 6428(a).1
In addition, the CARES Act imposes a hurdle on top of these requirements that is unrelated to need. Section 6428(g) requires that, to receive an EIP—including the portion earmarked for children—an eligible individual must include on her tax return a social security number (SSN) issued “to a citizen of the United States,” to a lawful permanent resident (LPR), or to a noncitizen who is not an LPR but has work authorization. Id. §§ 6428(a)(2), 24(h)(7). Undocumented immigrants cannot obtain an SSN and instead use an “individual taxpayer identification number” (ITIN) to file
1 Thus, a person entitled to an EIP now can lose that entitlement due to a change in income or a child aging out if forced to wait—as Defendants assert is proper—until 2021 to file a claim. Plaintiffs are considering amending the complaint to add such a plaintiff.
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taxes. This means that “qualifying” U.S. citizen children, even if they have valid SSNs, are denied the benefits of the $500 EIP for children if their parents are undocumented. Id. § 6428(g)(1)(A).
Plaintiffs are seven U.S. citizen children and their parents. Citizen Children Plaintiffs have not received the benefit of the $500 payments intended for children because one or more of their parents are undocumented. They seek an injunction prohibiting Defendants from enforcing this discriminatory policy and a declaration that it is unlawful, or, in the alternative, damages. Also in the alternative, Parent Plaintiffs seek damages on their children’s behalf.
II. Section 6428 Discriminates Against Citizen Children Plaintiffs
Defendants argue that Plaintiffs have failed to state a claim on the merits because § 6428 does not create an alienage classification and, even if it does, the classification survives rational-basis review. Defendants are wrong at each step.
The SSN requirement is an obvious proxy intended to exclude undocumented immigrants. Defendants do not contest that facial discrimination can be effectuated through a proxy. Defs.’ Ltr. at 4; see also, e.g., Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (“a classification that is ostensibly neutral but is an obvious pretext for racial discrimination” is “presumptively invalid”). Nor do they dispute that the SSN requirement efficiently excludes undocumented immigrants. And for good reason. Undocumented immigrants cannot obtain an SSN, 20 C.F.R. § 422.104 (delineating “who can be assigned a social security number”), and must use an ITIN instead. 26 C.F.R. § 301.6109-1(d)(3). Undocumented immigrants thus make up the “vast majority” of ITIN holders.2
Defendants claim that § 6428’s SSN requirement is not a proxy, but a classification based on the policy choice to provide EIPs based on work authorization. This characterization does not withstand scrutiny. First, the CARES Act does not require a person to have earned income to receive an EIP, so any purported policy distinction based on work authorization has no relationship to the CARES Act’s goals of providing emergency cash assistance for basic life necessities while injecting cash flow into the economy. This distinguishes § 6428’s use of SSNs from that of the Earned Income Tax Credit and the 2008 stimulus package, to which Defendants compare it.3 Second, the CARES Act provides benefits for children only if the children do not support themselves. The Act’s requirement that children receiving assistance have an SSN therefore makes little sense if its purpose is to ensure work authorization. Third, although the CARES Act generally provides EIPs to married couples filing jointly only where both spouses have SSNs (thus denying the benefit to mixed-status couples who file jointly), it grants an exception—unrelated to work authorization but focused on helping a favored group—if one spouse serves in the military. 26 U.S.C. § 6428(g)(3).

2 Laura E. Hill & Hans P. Johnson, Public Policy Inst. of Cal., Unauthorized Immigrants in California 11 (2011), available at https://perma.cc/TX46-YAXM. The other ITIN holders generally include people who are ineligible for EIPs because they are not “resident aliens” under § 6428(d). Regardless, a proxy need not be a perfect one-to-one fit. See McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (gray hair can be a proxy for age because “the ‘fit’ . . . is sufficiently close that they would form the same basis for invidious classification”). 3 Defendants also compare the requirement to one used in the Aid to Families with Dependent Children program discussed in McElrath v. Califano, 615 F.2d 434 (7th Cir. 1980). That program predated the existence of ITINs, and the replacement program, Temporary Assistance for Needy Families (TANF), allows U.S. citizen children to receive benefits even if their parents are undocumented. See TANF, 64 Fed. Reg. 17720-01, at 17740.

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These inconsistencies, along with the reality that undocumented immigrants cannot obtain SSNs, demonstrate that the requirement serves as an intentional proxy for undocumented status.4
Moreover, this case does not challenge just § 6428’s alienage classification, for which Defendants assert that rational-basis scrutiny applies. Rather, it challenges the imposition of this classification on citizen children. Although children like Plaintiffs must independently “qualify” for an additional $500 to be disbursed and must have their own SSN, they are nonetheless denied the benefit of that assistance because their parents are undocumented. In this way, the CARES Act discriminates against children based on their parents’ status.
The Supreme Court has recognized that “[b]urden[ing] . . . children for the sake of punishing the illicit” status of their parents “is illogical and unjust.” Clark v. Jeter, 486 U.S. 456, 461 (1988). To protect against the unwarranted effects of such discrimination, laws that classify children based on their parents’ status are subject to heightened scrutiny, i.e., the classification must be substantially related to advancing an important government interest. Id.; Lewis v. Thompson, 252 F.3d 567, 591 (2d Cir. 2001) (heightened scrutiny applied to exclusion of citizen children of undocumented mothers from automatic Medicaid enrollment).
The CARES Act’s blanket exclusion of U.S. citizen children of undocumented parents does not survive heightened scrutiny. Aside from the circular desire to exclude “statutorily ineligible individuals,” the only justifications that Defendants offer are “the efficient and accurate implementation of the CARES Act” and the reduction of “fraud and abuse.” Defs.’ Ltr. 5. Notably, these have nothing to do with “work authorization.” In any event, the purported necessity that all members of a family unit possess an SSN to ensure efficiency and prevent fraud is belied by Congress’s extension of EIPs to SSN holders who file taxes separately from their ITIN-holding spouses; to SSN holders whose children lack an SSN; and to military families when one spouse lacks an SSN. 26 U.S.C. § 6428(g).
Indeed, Defendants’ justifications are too conclusory to survive even rational-basis review. Defendants provide no explanation for how excluding ITIN holders reduces fraud or leads to greater efficiency, let alone explain how those interests are furthered by excluding the U.S. citizen children of ITIN holders, which is the actual discrimination that must be justified in this case. Cf. Jimenez v. Weinberger, 417 U.S. 628, 636 (1974) (blanket exclusion of illegitimate children not “reasonably related to” “prevention of spurious claims” when it defeated statutory purpose of “provid[ing] for dependents”).
III. Plaintiffs Have Standing
Defendants argue that Citizen Children Plaintiffs lack an injury-in-fact because the CARES Act distributes financial assistance in the first instance to Parent Plaintiffs. But a person need not be the immediate recipient of a government benefit to have Article III standing to challenge its denial. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). In Arlington Heights, for example, a housing developer’s rezoning application was denied for discriminatory reasons. The Court found that an individual who lived in a nearby city had standing to challenge the denial because it deprived him of the “opportunity” to seek to live in the not-yet-constructed housing. Id. at 264 (citing Warth v. Seldin, 422 U.S. 490, 505 (1975)); see also, e.g., W. Va. Ass’n of Cmty. Health Ctrs., Inc. v. Heckler, 734 F.2d 1570, 1574 (D.C. Cir. 1984) (health center had standing to challenge denial
4 Defendants observe that “[m]any non-U.S. citizens have an SSN,” Defs.’ Ltr. at 4, but the Supreme Court has held that discrimination against a subclass of noncitizens still creates an alienage classification. Nyquist v. Mauclet, 432 U.S. 1, 7-9 (1977).

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of funding to West Virginia because, if funding were increased, center would have an “opportunity to compete” for it).
Citizen Children Plaintiffs’ injury here is even more concrete. They are not merely losing the “opportunity” to apply for emergency assistance; they are losing the actual benefits earmarked for children that they otherwise would have enjoyed were it not for their parent’s undocumented status. This denial leaves them without access to funds that could be used to obtain food, stabilize their housing situation, and increase their ability to participate in online learning while schools are closed. Compl. ¶¶ 51-54. The child support cases Defendants cite as contrary authority, Defs.’ Ltr. at 3, address who may seek child support under state law; they do not even mention Article III’s injury-infact requirement.
Defendants also broadly assert that courts “generally do not permit litigating the tax liability of others.” Defs.’ Ltr. at 3. Setting aside that this case is about financial assistance, not “tax liability,” see infra at 5, each case Defendants cite involved an attenuated chain of causation that made redress of the plaintiffs’ injuries speculative. E.g., Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014) (rejecting claim of standing based on “a long, intermediated chain of effects” dependent on the “market economy”). The chain of causation here is far more direct, and redress is certain. Compl. ¶¶ 14-24.
Finally, Defendants attack Parent Plaintiffs’ “prudential or statutory standing” on the ground that their claim for damages depends on their children’s rights. Defs.’ Ltr. at 3. A party can proceed based on such “third-party standing” when a “hindrance” prevents the third party from asserting its own rights. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017). Plaintiffs do not dispute that if this Court holds that Citizen Children Plaintiffs can vindicate their own rights, Parent Plaintiffs’ claim may be subject to dismissal. But it cannot be, as Defendants urge, that no party can challenge the discriminatory statute at issue.
IV. This Court Has Jurisdiction Over Plaintiffs’ Claims
Injunctive and Declaratory Relief. This Court has jurisdiction over Citizen Children Plaintiffs’ claim for injunctive and declaratory relief under 28 U.S.C. § 1331 because it arises under the Constitution. Defendants argue that § 1331 does not waive sovereign immunity “against the United States.” Defs.’ Ltr. at 3. But this claim is brought only against Defendant Mnuchin, see Compl. at 22, and, thus, presents a routine application of Ex Parte Young principles. See Armstrong v. Exceptional Child Ctr., 575 U.S. 320, 327 (2015).
Defendants further argue that there is no jurisdiction because Citizen Children Plaintiffs must raise their claims in a tax refund suit after exhausting administrative remedies. As relevant here, the refund statute provides a cause of action for the “recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected.” 26 U.S.C. § 7422(a). In recent cases, Defendants have argued that this language should be “construed narrowly.” Br. of Appellant 24, 41, Bank of America v. United States, No. 19-2357 (Fed. Cir. Nov. 4, 2019); see also Pfizer Inc. v. United States, 939 F.3d 173, 179 (2d Cir. 2019) (accepting Defendants’ argument). And examining this text—a step Defendants now conveniently skip—demonstrates that it does not govern here.
First, this suit does not seek the recovery of anything wrongfully “assessed.” “The term ‘assessment’ involves a ‘recording’ of the amount the taxpayer owes the Government.” Hibbs v. Winn, 542 U.S. 88, 100 (2004). It “serves as the trigger for levy and collection efforts.” Id. at 102. Plaintiffs do not contend that the IRS improperly assessed Parent Plaintiffs’ tax liability. Second, Plaintiffs do not complain of taxes wrongfully “collected.” This is not a case where the disfavored

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class has been taxed at a higher rate or made payments under an illegal tax, but one where that class has been denied assistance disbursed to others similarly situated. Third, even if this case did concern taxes illegally “assessed” or “collected,” a refund action still would not be an available vehicle for Citizen Children Plaintiffs to vindicate their rights: they do not seek the “recovery” of anything that they have paid. Rather, their claim is for equal treatment by means of injunctive and declaratory relief. “Section 7422(a) does not allow for prospective relief. Instead, it bars [absent exhaustion] suit for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected.” King v. Burwell, 759 F.3d 358, 366-67 (4th Cir. 2014) (emphasis in original), aff’d 135 S. Ct. 2480 (2015).
Importantly, forcing Plaintiffs into a refund action to obtain the EIP they are due based on their 2019 returns would do nothing to further § 7422’s purposes. Along with a prohibition on injunctions against the “assessment or collection” of taxes prior to the payment of taxes, see 26 U.S.C. § 7421—which Defendants notably do not invoke—post-payment refund actions under § 7422 exist to ensure the orderly collection of revenue owed and to provide the IRS with an opportunity to administratively determine whether a taxpayer has overpaid a tax liability. But as Defendants previously explained in addressing the materially identical provisions of the 2008 stimulus package, “[t]he stimulus payment . . . is not really a refund of an overpayment at all. In truth it is . . . a statutory windfall.” Amicus Br. of United States 5, In re Smith, No. 08-1664 (Bankr. S.D Ind. Aug. 6, 2008). This reflects Congress’s goal of providing immediate financial assistance; forcing a refund suit undermines that aim while doing nothing to advance § 7422’s revenue-collection focus.
Damages. Both sets of Plaintiffs also have properly asserted claims for damages directly under the CARES Act. The Little Tucker Act is a jurisdictional statute that “waives sovereign immunity protection and authorizes monetary claims ‘founded either upon the Constitution, or any Act of Congress.’” South Carolina v. United States, 221 F. Supp. 3d 684, 693 (D.S.C. 2016) (quoting 28 U.S.C. § 1346(a)(2)). A statute authorizes monetary claims if it is “money-mandating,” that is, if the statute “can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [it] impose[s].” United States v. Mitchell, 463 U.S. 206, 219 (1983). When a moneymandating provision violates a plaintiff’s equal protection rights, courts read the provision “in light of the Fifth Amendment.” E.g., Gentry v. United States, 546 F.2d 343, 348 (Ct. Cl. 1976) (claim for annuity benefit that was denied due to illegitimacy).
Defendants’ sole argument that § 6428 is not money-mandating is that it is a “tax statute.” Defs.’ Ltr. at 4. They provide no citation for the assertion that tax statutes cannot be moneymandating, and have recently (successfully) argued the opposite. See Pfizer Inc., 939 F.3d at 176; see also, e.g., New York & Presb. Hosp. v. United States, 881 F.3d 877, 882 (Fed. Cir. 2018) (provision that “mandates the Government to reimburse FICA taxes paid by an employer” is money-mandating). To be sure, “the [Little] Tucker Act is displaced when a law assertedly imposing monetary liability on the United States contains its own judicial remedies.” Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1329 (2020). But neither the CARES Act nor refund actions, as explained above, afford a separate remedy for EIPs denied this year.
* * *
Defendants provide no valid grounds for dismissal. To the extent the Court would like further briefing on any issue presented herein, Plaintiffs respectfully request that it be incorporated into summary judgment briefing.

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Respectfully submitted,
/s/ Jonathan L. Backer
Jonathan L. Backer (D. Md. 20000)
Robert D. Friedman* Amy L. Marshak* Mary B. McCord* INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 (202) 662-9835 jb2845@georgetown.edu
Leslie Book* Villanova University Charles Widger School of Law 299 N. Spring Mill Rd. Villanova, PA 19085 (610)519-6416 book@law.villanova.edu
Attorneys for Plaintiffs
*Admitted pro hac vice

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R.V. et al., v. Mnuchin, et. al, * * *

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division
*
* Case No. 20-cv-1148
*
* * * * * * * * *

* *

MEMORANDUM OPINION AND ORDER This Memorandum Opinion and Order addresses the Government’s letter regarding a proposed motion to dismiss, ECF No. 32, and Plaintiffs’ response, ECF No. 33. For the reasons discussed below, the Government’s letter is construed as a motion to dismiss and is denied without prejudice. This case will proceed with the Government filing an answer, and the Court will schedule a conference call to determine whether any discovery is needed before scheduling the briefing of cross motions for summary judgment. Because the briefing on the Government’s intended motion to dismiss was both expedited and truncated, the Government may reassert its arguments for dismissal with any additional authority as part of the summary judgment briefing.
Background To begin, I briefly memorialize the discussion with the parties during our video conference on May 8, 2020. During that conference, we discussed the unprecedented nature of the COVID-19 pandemic, its strain on the resources of the Court and the parties, and its particular relevance to the claims of this case. In light of this, the parties agreed to outline the bases for a proposed motion to dismiss and opposition in letters of five pages or less, single spaced. I informed the parties that I would review their letters to determine whether full briefing was necessary, and if not decide whether to dismiss the case or allow it to move forward. If the

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case did move forward, the Government’s proposed bases to dismiss the case would be preserved and they could raise them again at the summary judgment stage.
Turning to the substance of this case, Plaintiffs are seven children who are U.S. citizens (“Citizen Children Plaintiffs”), and their parents, one or both of which is an undocumented immigrant (“Plaintiff Parents”). Compl., ECF No. 1 at ¶¶ 13–21. Plaintiffs challenge the allegedly intentional and discriminatory denial to U.S. citizen children of the benefits of emergency cash assistance distributed under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in response to the COVID-19 pandemic solely because one or both of a child’s parents are undocumented immigrants. Id. at ¶ 1.
The CARES Act provides “economic impact payments” of up to $1,200 for eligible individuals and $500 for each of the individual’s qualifying children under age 17. 26 U.S.C. § 6428(a). The Act directs Defendant Secretary of the Treasury Mnuchin to distribute these payments “as rapidly as possible.” 26 U.S.C. § 6428(f). The Act requires a recipient of the economic impact payments to have a social security number (“SSN”), which excludes undocumented immigrants without a work authorization who file taxes with an Individual Taxpayer Identification Number. Compl. at ¶ 37; 26 U.S.C. § 6428(g); 20 C.F.R. §422.104(a). The result is that qualifying U.S. citizen children who have only undocumented parents cannot receive the $500 economic impact payments intended for their benefit. Compl. at ¶ 39. Similarly, U.S. citizen children who have one undocumented parent and one citizen parent or immigrant parent with a social security number cannot receive the $500 economic impact payments intended for their benefit unless the parents file a 2019 tax return as “married filing separately” rather than “married filing jointly,” which can increase the family’s tax burden. Id.
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at ¶ 40. Plaintiffs allege that this scheme intentionally discriminates against U.S. citizen children solely because of their parents’ alienage. Id. at ¶ 3.
Plaintiffs seek to certify two classes. First, Citizen Children Plaintiffs seek to certify a nationwide class of “all U.S. citizen children under age 17 who have been or will be denied the benefits of economic impact payments for ‘qualified children’ under the CARES Act solely because the children have a parent who is an undocumented immigrant who has no social security number.” Id. at ¶ 57. Second, Parent Plaintiffs seek to certify a nationwide class for damages of “persons whose U.S. citizen children have not received the benefits of economic impact payments for ‘qualified children’ under the CARES Act solely because at least one of the children’s parents is an undocumented immigrant who has no social security number.” Id. at ¶ 64.
Plaintiffs allege three counts for relief. First, Citizen Children Plaintiffs, on behalf of themselves and all others similarly situated, bring a claim against Secretary of the Treasury Mnuchin for violation of the Fifth Amendment of the United States Constitution for intentional discrimination based on their parents’ alienage. Id. at ¶¶ 71–74. Second, Citizen Children Plaintiffs, on behalf of themselves and all other similarly situated, bring a claim against the United States for money damages under 26 U.S.C. § 6428 and 28 U.S.C. 1346(a)(2). Id. at ¶¶ 75–80. Third, Parent Plaintiffs, on behalf of themselves and all others similarly situated, bring a claim against the United States for money damages under 26 U.S.C. § 6428 and 28 U.S.C. § 1346(a)(2).
Pending is the Government’s letter, construed as a motion to dismiss, in which the Government argues the Plaintiffs’ lack standing, this Court lacks jurisdiction, and Plaintiffs
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failed to state a claim. ECF No. 32. Plaintiffs have filed a response. ECF No. 33. A hearing is not necessary. See Local Rule 105.6 (D. Md. 2018).
Standard of Review Plaintiffs’ claims are subject to dismissal if they “fail[] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A pleading must meet the standard of Rule 8(a), which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain factual content, and more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). Therefore, mere legal conclusions will not suffice. Iqbal, 556 U.S. at 678. Finally, the factual allegations presented in the complaint must be construed “in the light most favorable to [the] plaintiff.” Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008).
Discussion In its letter, the Government outlines three bases to dismiss the case. First, that the Plaintiffs lack Article III and statutory standing. Second, that the Court lacks subject matter jurisdiction because the Government has not waived sovereign immunity. And third, that the Plaintiffs have failed to state a claim. ECF No. 32. Plaintiffs oppose each argument. ECF No. 33. I discuss each in turn.
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A. Standing The Government argues that the Citizen Children Plaintiffs, and the Parent Plaintiffs as their representatives, lack both Article III and statutory standing. For Article III standing, a plaintiff must meet three requirements: (1) [the party] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (same). The Government argues that the plaintiffs cannot establish injury in fact because they are not “among the injured.” ECF No. 32 at 2 (quoting Sierra Club v. Morton, 405 U.S. 727, 734– 35 (1972)). This is because the CARES Act structures the economic impact payments to inure to parents, and not to children, and therefore children cannot claim to be injured by their parents’ failure to receive any payments. The Government cites to cases regarding the Child Tax Credit and state child support payments to support the proposition that children do not have a direct interest needed for standing when seeking to recover payments for their benefit that are made to parents. ECF No. 32 at 2–3 (citing In re Parisi, 2010 WL 1849386, at *2 (Bankr. E.D.N.Y. May 6, 2010); In re Hardy, 787 F.3d 1189, 1193 (8th Cir. 2015); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); Matter of Hosier, 875 F.2d 128, 129 (7th Cir. 1989); Kelleher v. Kelleher, 316 N.E.2d 212, 215 (Ill. App. 1974); Ben Ami v. Ben Ami, 168 N.E.2d 723 (N.Y. 1960)).
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In response, Plaintiffs argue that a person need not be the immediate recipient of a government benefit to have Article III standing to challenge its denial. ECF No. 33 at 3–4 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) and W. Va. Ass’n of Cmty. Health Ctrs., Inc. v. Heckler, 734 F.2d 1570, 1574 (D.C. Cir. 1984)). In Village of Arlington, the Supreme Court held that an individual who was interested in living in a particular community had standing to challenge a denial of a rezoning application that blocked an affordable housing project from being approved for allegedly discriminatory reasons. 429 U.S. at 264. Although it was not certain that the housing development would materialize, or that the plaintiff would live there, he adequately alleged injury that “his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory.” Id. Similarly, in West Virginia Association of Community Health Centers, Inc. v. Heckler, the D.C. Circuit found that two non-profit health organizations had standing to challenge the formula adopted by the Secretary of Health and Human Services for awarding block grants, alleging that West Virginia was entitled to additional monies. 734 F.2d at 1573, 1576. Although there was no guarantee that the organizations would receive additional money from West Virginia even if the funding formula were changed, the Court found that it was sufficient that they “qualified” for receiving grants from the state and that the Secretary’s formula deprived them of the opportunity to “compete” for additional funding. Id. at 1576.
Here Citizen Children Plaintiffs, and the Parent Plaintiffs on their behalf, allege that they were deprived the benefit of economic impact payments that the children otherwise “qualified” for, except for the alleged discrimination based on their parents’ alienage. This discrimination allegedly deprived them of funds that would go toward purchasing cleaning supplies and other preventative measures related to COVID-19, healthcare, food, shelter and school supplies. See
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Compl. at ¶¶ 44–55. Like the plaintiffs in Village of Arlington and Heckler, Citizen Children Plaintiffs, and the Parent Plaintiffs as their representatives, were deprived of a chance to benefit from the $500 economic impact payments for qualifying children. In other words, even if the economic impact payments are not sent directly to children, Plaintiffs have sufficiently alleged a causal connection that they have been injured by being denied the opportunity to benefit from them.
The cases cited by the Government are not persuasive to the contrary. In re Parisi involved a bankruptcy proceeding in which the debtor argued that the Child Tax Credit was not property of the bankruptcy estate and therefore she was entitled to retain the funds on the theory that it was a trust fund or a grant for families with dependent children. No. 10-70021-478, 2010 WL 1849386, at *1 (Bankr. E.D.N.Y. May 6, 2010). The bankruptcy court rejected this view, finding no evidence from the legislative history that Congress intended the Child Tax Credit to be held in trust for the benefit of the child and exempt from the parent’s creditors. Id. at *2. But the opinion did not address Article III standing. The Eighth Circuit in In re Hardy, 787 F.3d 1189, 1197 (8th Cir. 2015) held that the Additional Child Tax Credit qualified as a public assistance benefit under Missouri law and was therefore exempt from the debtor’s bankruptcy estate, but again did not address standing. Similarly, the child support cases cited by the Government relate to child support payments under the laws of Illinois and New York and do not discuss Article III standing. Moreover, even if economic impact payments under the CARES Act were analogous to the Child Tax Credit, Additional Child Tax Credit, or child support payments under state law such that they are paid directly to parents and not to children, this still does not address whether children suffered an injury in fact based on the lost opportunity to benefit from the economic impact payments.
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Therefore Citizen Children Plaintiffs and the Parent Plaintiffs as their representatives have suffered an injury in fact. The Government does not dispute that this injury is fairly traceable to the challenged action of the defendant or that the injury would be redressed by a favorable decision. Taken together, Plaintiffs have Article III standing.
As to statutory standing, the Government argues that Plaintiffs fall outside of the “zone of interests protected by the law invoked.” ECF No. 32 at 3 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126–29 (2014)). “Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim.” Lexmark Int'l, Inc, 572 U.S. at 127 (internal quotation marks omitted).
Plaintiffs meet the test for statutory standing. As described above, in response to the COVID-19 pandemic, the CARES Act directs Secretary Mnuchin to distribute economic impact payments “as rapidly as possible” of up to $1,200 for eligible individuals and $500 for each of the individual’s qualifying children. 26 U.S.C. § 6428(a), (f). Each of the Citizen Children Plaintiffs alleges that they meet the definition of a “qualifying child” under the CARES Act and would therefore have the opportunity to benefit from the economic impact payments, but for the discrimination against them based on their parents’ alienage. Therefore the interests of the Citizen Children Plaintiffs, and the Parent Plaintiffs as their representatives, in the opportunity to enjoy the benefit of the economic impact payments for food, shelter, and supplies, are squarely within zone of interests of the statute.
The Government argues that the Citizen Children Plaintiffs, and the Parent Plaintiffs on their behalf, fall outside the zone of interests of the CARES Act because they are attempting to litigate the tax benefits of others – namely, the parents. ECF No. 32 at 3. The Government cites
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several cases involving other provisions of the tax code or benefits in support of its position that courts generally do not permit litigating the tax liability of others or to obtain another’s benefits. Id. (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 36 (1976); Warth v. Seldin, 422 U.S. 490, 498–501 (1975); Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014); United States v. Williams, 514 U.S. 527, 536 (1995)).
These cases do not establish that the Citizen Children Plaintiffs lack statutory standing. Simon v. E. Ky. Welfare Rights Org. and Warth v. Seldin address Article III standing, not statutory standing. For the reasons discussed above, Plaintiffs have established Article III standing. In Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014), physicians who mainly accepted cash and not insurance challenged portions of the Patient Protection and Affordable Care Act (“ACA”) on the theory that it would reduce demand for their services. The Seventh Circuit found that the plaintiffs lacked Article III standing, reasoning that the injury was too remote, and also noted that the plaintiffs were outside the statutory zone of protection of the ACA as “[o]nly persons seeking to advance the interests protected by the mandatory-insurance portions of the Affordable Care Act would have a plausible claim to relief.” Koskinen, 768 F.3d at 642. In contrast to the physicians in Koskinen, whose theory of liability depended on tenuous assumptions regarding shifting economic demand, the Citizen Children Plaintiffs’ claims here are directly related to the interests protected by the CARES Act.
The Government also cites United States v. Williams, 514 U.S. 527, 536 (1995), but if anything, that case supports Plaintiffs. In Williams, the plaintiff paid a tax lien under protest that was assessed against her husband’s interest on property they jointly owned before it was deeded to Williams as part of a divorce settlement without her knowledge of the lien. Williams later requested a refund but was denied. The Government argued that Williams could not bring suit
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for a refund because the tax was never assessed against Williams in the first place. The Supreme Court rejected this view, finding that Congress did not intend such a result and noting that “[t]he Government's strained reading of § 1346(a)(1), . . . would leave people in Williams' position without a remedy. . . This consequence reinforces our conclusion that Congress did not intend refund actions under § 1346(a)(1) to be unavailable to persons situated as Lori Williams is.”) United States v. Williams, 514 U.S. at 536. While this involves a different provision of the tax code, it is instructive in that the Government’s reading of the CARES Act, taken to its logical conclusion, would limit anyone from challenging the alleged unlawful discrimination against the Citizen Children Plaintiffs based on their parents’ alienage. Thus, the Citizen Children Plaintiffs, and the Parent Plaintiffs as their representatives, have established statutory standing.
B. Sovereign Immunity Plaintiffs allege that this Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1346. Compl. ¶ 11. Well enough. But the United States and its officials cannot be sued without an express waiver of sovereign immunity. Lane v. Pena, 518 U.S. 187, 192 (1996). The Government argues that this case must be dismissed because 28 U.S.C. §§ 1331, 1343, and 1346(a)(2) do not provide the requisite waiver of sovereign immunity and therefore this Court lacks jurisdiction to hear the Plaintiffs’ claims. Further, the Government argues that the Court lacks jurisdiction until the Parent Plaintiffs file a refund action for their 2020 taxes (in year 2021) and exhaust their administrative remedies with the IRS under 26 U.S.C. § 7422(a). In response, Plaintiffs argue that the Court has jurisdiction over the Citizen Children Plaintiffs’ claims for injunctive and declaratory relief (“Count I”) under 28 U.S.C. § 1331 because they arise under the Constitution and are asserted solely against Defendant Secretary Mnuchin. ECF No. 33 at 4; Compl. ¶¶ 71–74; p. 26–27. I agree. It is true that “section 1331 is
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not a general waiver of sovereign immunity” and “merely establishes a subject matter that is within the competence of federal courts to entertain.” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (internal quotation marks omitted). But Ex Parte Young, 209 U.S. 123 (1908) and its progeny established that suits can be maintained for injunctive and declaratory relief for alleged violations of federal law by federal officers. See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–27 (2015) (“[W]e have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. . . . But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials.”) (internal citations omitted); Antrican v. Odom, 290 F.3d 178, 191 (4th Cir. 2002) (holding suit for declaratory and injunctive relief against North Carolina official falls within Ex Parte Young exception for sovereign immunity). Given that Plaintiffs’ claims for injunctive and declaratory relief arise under the Constitution and are asserted against a federal officer, this Court has jurisdiction to hear them.
For the damages claims (Counts II and III), Plaintiffs argue that this Court has jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). “The Tucker Act is a jurisdictional statute that waives sovereign immunity protection and authorizes monetary claims ‘founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort.’” South Carolina v. United States, 221 F. Supp. 3d 684, 693 (D.S.C. 2016) (quoting 28 U.S.C. §§ 1346, 1491(a)(1)). To invoke the Little Tucker Act’s waiver of sovereign immunity, a statute must be “fairly be interpreted as mandating compensation by the Federal Government.” Maine Cmty. Health Options v. United States, 140
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S. Ct. 1308, 1329 (2020) (quoting Mitchell, 463 U.S. 206, 216–17 (1983)) (internal quotation
marks omitted). In Maine Community, the Supreme Court recently explained the relevant test as
follows:
To determine whether a statutory claim falls within the Tucker Act's immunity waiver, we typically employ a “fair interpretation” test. A statute creates a “right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, (2003) (quoting Mitchell, 463 U.S. at 217); see also Navajo Nation, 556 U.S. at 290 (“The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages”).
Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1328 (2020). In that case, the
Supreme Court held that § 1342 of the ACA (codified at 42 U.S.C. § 18062), which established
the “risk corridors” program for compensating insurers for unexpectedly unprofitable plans
during the first three years of the ACA’s online insurance marketplaces, was a money-mandating
statute and that petitioners could sue the Government for damages. Id. at 1315. In reaching this
conclusion, it found the “shall pay” language in § 1342 significant. It explained:
Statutory “‘shall pay’ language” often reflects congressional intent “to create both a right and a remedy” under the Tucker Act. Bowen, 487 U.S. at 906, n. 42; see also, e.g., id., at 923, (Scalia, J., dissenting) (“[A] statute commanding the payment of a specified amount of money by the United States impliedly authorizes (absent other indication) a claim for damages in the defaulted amount”); United States v. Testan, 424 U.S. 392, 404 (1976) (suggesting that the Back Pay Act, 5 U.S.C. § 5596, may permit damages suits under the Tucker Act “in carefully limited circumstances”); Mitchell, 463 U.S. at 217 (similar). Section 1342’s triple mandate—that the HHS Secretary “shall establish and administer” the program, “shall provide” for payment according to the statutory formula, and “shall pay” qualifying insurers—falls comfortably within the class of money mandating statutes that permit recovery of money damages in the Court of Federal Claims.
Maine Cmty. Health Options v. United States, 140 S. Ct. at 1329. In other words, absent other
indication, “shall pay” language is an indication of Congressional intent to waive sovereign
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immunity under the Tucker Act. And this type of language in § 1342 of the ACA placed it “comfortably” in this category of money-mandating statutes.
In Gentry v. United States, 546 F.2d 343, 348 (Ct. Cl. 1976), the Court of Federal Claims analyzed a waiver of sovereign immunity under the Tucker Act in relation to an equal protection challenge. There plaintiff was an “illegitimate minor child” that filed a claim for benefits allegedly due to him under the under the Civil Service Retirement Act of 1930, as amended, 5 U.S.C. §§ 8331 et seq. (1970), as the survivor of his deceased father, a retired civilian welder for the Navy. Gentry v. United States, 546 F.2d at 344. The statute expressly excluded the plaintiff from receiving the benefits because the plaintiff did not live with his father. The Government argued that the Court lacked jurisdiction under the Tucker Act because the statute did not provide for any money to plaintiff given the live-in requirement. Plaintiff challenged the live-in requirement as a violation the guarantee of equal protection provided by the due process clause of the Fifth Amendment. To determine whether it had jurisdiction under the Tucker Act, the Court read the statute “in light of the Fifth Amendment.” Gentry v. United States, 546 F.2d 343, 346 (Ct. Cl. 1976). Put another way, the court construed the statute without the constitutionally offensive language, ultimately finding that it did have jurisdiction and that the live-in requirement was unconstitutional. Id. at 347, 354.
These cases provide support for the position that this Court has jurisdiction over the damages claims under the Little Tucker Act. The CARES Act contains compulsory language for economic impact payments similar to the language in § 1342 of the ACA discussed in Maine Community. Section 1342 of the ACA provided that that the HHS Secretary “shall establish and administer” the risk corridors program, “shall provide” for payment according to the statutory formula, and “shall pay” qualifying insurers. Maine Cmty. Health Options v. United States, 140
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S. Ct. at 1329. The CARES Act provides for economic impact payments by creating a legal fiction that qualified individuals “overpaid” on previously filed taxes. The Act states “there shall be allowed a credit” of $1,200 for eligible individuals and $500 for qualifying children for this overpayment and that “[t]he Secretary shall, subject to the provisions of this title, refund or credit any overpayment attributable to this section as rapidly as possible.” 26 U.S. Code §§ 6428(a), (f)(3)(a) (emphasis added). The Act therefore requires the government to pay the fictional overpayment, and be quick about it. This indicates that 26 U.S. Code § 6428 is a money-mandating statute. And like in Gentry, this Court should consider the statute “in light of the Fifth Amendment,” such that the alleged unconstitutional discrimination that Plaintiffs challenge in the statute is not itself a bar to finding jurisdiction.
The Government argues that 26 U.S.C. § 6428 is not a money-mandating statute because it is a tax statute. True. But the two are not mutually exclusive. See, e.g., Pfizer Inc. v. United States, 939 F.3d 173, 179 (2d Cir. 2019) (finding Court of Federal Claims had jurisdiction under Tucker Act for suit regarding tax overpayment interest under 26 U.S.C. § 1611); New York & Presbyterian Hosp. v. United States, 881 F.3d 877, 888 (Fed. Cir. 2018) (holding that 26 U.S.C. § 3102(b) regarding Federal Insurance Contribution Act taxes is a money-mandating provision providing jurisdiction under the Tucker Act). Therefore for the reasons stated above, I find that the Court has jurisdiction over Plaintiffs’ damages claims under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).
Finally, Plaintiffs need not exhaust administrative remedies with the IRS under 26 U.S.C. § 7422(a), as suggested by the Government, for this Court to have jurisdiction over any of the claims. That section provides:
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or
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collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof. 26 U.S.C. § 7422(a). By its plain language, § 7422(a) does not apply here because it is not a suit for any tax, penalty, or sum wrongfully collected. See also King v. Burwell, 759 F.3d 358, 366– 67 (4th Cir. 2014) (emphasis in original), aff’d 135 S. Ct. 2480 (2015) (“Section 7422(a) does not allow for prospective relief. Instead, it bars [absent exhaustion] suit for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected.”). Thus, the Court finds that it has subject matter jurisdiction over all of Plaintiffs’ claims. C. Failure to State a Claim Finally, the Government argues that Plaintiffs have failed to state an equal protection claim. The Government argues that 26 U.S.C. § 6428(g) is not an impermissible alienage classification because it concerns whether individuals have an SSN, and not their alienage. The Government asserts that the SSN requirement is a policy choice to provide economic impact payments based on work authorization. And that even if the eligibility requirements implicated alienage, it would be subject to rational basis review. See Matthews v. Diaz, 426 U.S. 67, 81–85 (1976). Under rational basis review, the statute “is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to” a legitimate interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The Government argues that § 6428(g) passes that test because it assists with the efficient and accurate implementation of the CARES Act. In response, Plaintiffs argue that 26 U.S.C. § 6428(g)’s SSN requirement is an impermissible proxy to exclude undocumented immigrants. See Personnel Adm’r of Mass. v.
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Feeney, 442 U.S. 256, 272 (1979) (“a classification that is ostensibly neutral but is an obvious pretext for racial discrimination” is “presumptively invalid”). In support of their position, Plaintiffs argue that undocumented immigrants cannot obtain an SSN and that the Government’s work authorization justification does not withstand scrutiny including because the CARES Act provides benefits for children only if they are dependent. Further, Plaintiffs point out that they are challenging § 6428(g)’s alleged alienage classification as it applies to payments for qualifying children. In this way they are challenging discrimination against U.S. citizen children based on their parents’ status, which they argue receives heightened scrutiny review. See Clark v. Jeter, 486 U.S. 456, 461 (1988) (applying heightened scrutiny to statute of limitations for paternity suit and summarizing its prior holding in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 , 175 (1972) that “[b]urden[ing] . . . children for the sake of punishing the illicit” status of their parents “is illogical and unjust.”); Lewis v. Thompson, 252 F.3d 567, 590–91 (2d Cir. 2001) (applying heightened scrutiny to exclusion of citizen children of undocumented mothers from automatic Medicaid enrollment). And regardless of whether rational basis or heightened scrutiny applies, Plaintiffs argue the Government’s proffered bureaucratic efficiency reasons provide no justification for how the Government’s interests are furthered by excluding otherwise qualifying U.S. citizen children whose parents do not have SSNs from receiving the benefit of economic impact payments.
Plaintiffs have properly alleged an equal protection claim. They have adequately pled that the CARES Act discriminates against the Citizen Children Plaintiffs and the Parent Plaintiffs as their representatives based on their parents’ alienage. I need not decide whether rational basis or heightened scrutiny applies at this stage, because under either standard the Government’s
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proffered rationale to date does not warrant dismissal of their claims. The parties will be able to brief these issues more fully for the Court’s consideration at the summary judgment stage.
Conclusion Based on the complaint and the submissions to date, I find that Plaintiffs have established Article III and statutory standing, that this Court has subject matter jurisdiction over their claims, and that they have adequately alleged an equal protection claim. Therefore the Government’s letter, ECF No. 32, is construed as a motion to dismiss and is denied. The Government is directed to file an answer by July 10, 2020. I will schedule a conference with the parties to discuss whether discovery is needed and schedule summary judgment briefing. To the extent the Government wishes to reassert its arguments for dismissal discussed above with additional authority, it will be permitted to do so at the summary judgment stage.
ORDER
For the reasons stated in this Memorandum Opinion and Order, it is this 19th day of June 2020, hereby ORDERED:
1. The Government’s letter, ECF No. 32, is construed as a motion to dismiss and is DENIED;
2. The Government is directed to file an answer by July 10, 2020; 3. The Court will schedule a conference call with the parties to discuss whether discovery is
needed and to schedule summary judgment briefing.
/S/ Paul W. Grimm United States District Judge
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