IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN DOE, )

)

Plaintiff, ) Case No. 20-cv-2531

)

v. ) Judge Sharon Johnson Coleman

)

DONALD J. TRUMP, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

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

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

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

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6428(g); 20 C.F.R. § 422.104(a). As a result, United States citizens, who would otherwise qualify for 

the Advance Credit, cannot receive the Advance Credit if they filed a joint tax return with a noncitizen spouse who lacks an SSN. See 26 U.S.C. § 6428(g)(1)(B). In short, § 6428(g)(1)(B), called the 

exclusion provision, excludes eligible individuals from receiving cash assistance if his or her spouse 

is an undocumented immigrant.

Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the

sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 

L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded 

factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. 

Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion 

to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible 

when the plaintiff alleges “factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 

1937, 173 L.Ed.2d 868 (2009). 

Discussion

The United States first asserts that the official capacity claims against the individual 

defendants are duplicative of the claims against the United States. The Court agrees. It is wellsettled that official capacity claims are just “another way of pleading an action against an entity of 

which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 

(1985). In other words, “[a]ctions against individual defendants in their official capacities are treated 

as suits brought against the government entity itself.” Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 

2008). Accordingly, the official capacity claims against Donald J. Trump, Mitch McConnell, Steven 

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Mnuchin, and Charles Rettig are duplicative, especially in light of Doe’s allegations that the 

individual defendants are liable for their role in implementing the CARES Act, not that the 

individual defendants themselves violated the law or acted in excess of their authority. The Court 

therefore grants this aspect of the United States’ motion.

In addition, both the President and the Senate Majority Leader are absolutely immune from 

this lawsuit because the allegations against them stem from their constitutional and official duties as 

federal office holders. See Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 2727, 73 L.Ed.2d 396 

(1982) (“judicial, prosecutorial, and legislative functions require absolute immunity”); Nixon v. 

Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (“In view of the special nature of 

the President’s constitutional office and functions, we think it appropriate to recognize absolute 

Presidential immunity from damages liability for acts within the “outer perimeter” of his official 

responsibility.”).

Although Doe agrees that Senator McConnell is immune from suit, he argues that the 

President’s conduct concerned “unofficial acts” because the President affixed his name to CARES 

Act checks. See Clinton v. Jones, 520 U.S. 681, 694, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (“[W]e 

have never suggested that the President, or any other official, has an immunity that extends beyond 

the scope of any action taken in an official capacity.”). Doe’s argument is unsupported by legal 

authority except for a treasury directive that does not indicate whether the President can or cannot 

sign checks drawn from Treasury. Without more, Doe has waived this argument because it is 

undeveloped and lacks sufficient legal authority. Harrington v. Duszak, 971 F.3d 739, 741 (7th Cir. 

2020).

Doe further argues that he can bring his constitutional claims against the individual 

defendants by extending the holding in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 

S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, “an individual injured by a federal agent’s alleged 

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violation of the Fourth Amendment may bring an action for damages against the agent.” F.D.I.C. v. 

Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In FDIC v. Meyer, the Supreme 

Court declined to extend Bivens to lawsuits seeking money damages from federal agencies. Id. at 486. 

Doe does not address FDIC v. Meyer in his legal memorandum nor does he distinguish the fact that

he did not allege the individual defendants were acting outside the scope of their official duties. In 

the end, the Supreme Court has repeatedly refused to extend Bivens, see Ziglar v. Abbasi, ––– U.S. –––, 

137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017), and Doe has failed to make a sufficient argument for 

the Court to do so. 

Next, the United States argues that Doe’s official capacity claims against the Department of 

the Treasury and the Internal Revenue Service are untenable because federal agencies cannot be 

sued in their own name absent waiver of sovereign immunity, see F.D.I.C. v. Meyer, 510 U.S. at 475, 

and, it takes unequivocal language in a statute to waive sovereign immunity. Bormes v. United States, 

759 F.3d 793, 796 (7th Cir. 2014). Doe does not point to unequivocal language in which either 

Treasury or the IRS waived their sovereign immunity under the circumstances, namely, a 

constitutional challenge to the CARES Act. Instead, he argues that the Administrative Procedure 

Act (“APA”) provides immunity to bring this lawsuit against Treasury and the IRS even though Doe 

is not seeking review of a final agency action. The Court agrees.

“The APA provides a limited waiver of the United States’ sovereign immunity and supports 

a claim for a challenge to agency action, but only to the extent that the plaintiffs ‘seek relief other 

than money damages.’” Cook County, Ill. v. Wolf, 962 F.3d 208, 233 (7th Cir. 2020) (quoting 5 U.S.C. 

§ 702). Because Doe is seeking injunctive relief, his argument is not barred by § 702. In addition, 

despite the United States’ argument to the contrary, “the waiver in § 702 is not limited to claims 

brought pursuant to the review provisions contained in the APA itself,” but also “applies when any 

federal statute authorizes review of agency action, as well as in cases involving constitutional 

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

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

defendants to this lawsuit.

Conclusion

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

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

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

Treasury.

IT IS SO ORDERED.

Date: 12/14/2020

Entered: _____________________________

 SHARON JOHNSON COLEMAN

 United States District Judge

 

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