5-5-20 RV V Mnuchin Complaint
5-5-20 RV V Mnuchin Complaint
Plaintiffs,
v.
Defendants.
INTRODUCTION
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
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
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
Congress passed, and President Trump signed into law, the Coronavirus Aid,
Relief, and Economic Security (CARES) Act. Among other relief, the CARES
the tax system immediate means-tested cash assistance, which the federal
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
6428.
costs—while at the same time injecting cash flow into an economy that has
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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.
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
numbers and instead file their tax returns and pay their taxes using an
impact payments specifically intended for children. This is true even when the
children themselves, like Plaintiffs here, possess their own social security
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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need, frustrates the Act’s efforts to jumpstart the economy, and punishes
dollars each year in taxes. More fundamentally, this discrimination violates the
Clause.
parents on their behalf, who have been denied the benefits of the $500
declaration that the CARES Act’s denial of benefits to U.S. citizen children of
an order awarding them the economic impact payments they are due.
United States has refused to distribute to them for the benefit of their children
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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.
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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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
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
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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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
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
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
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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,
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
under the CARES Act and, in his official capacity, has enforced the CARES
undocumented parents.
defendant in an action for damages for money due under the CARES Act.
BACKGROUND
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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
emergency basis.
29. The CARES Act makes use of the tax infrastructure to distribute
administered through the tax code, economic impact payments are means-
tested 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
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-signing-
h-r-748-cares-act/ (last visited May 4, 2020).
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$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.
CARES Act, a person must be a U.S. citizen or a “resident alien” and must not
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
aliens under the substantial presence test, but by virtue of the discriminatory
provisions challenged in this case, see infra Section II, their eligibility under
than 17 years old, and not provide more than half of his or her own financial
adults and $500 for children—is reduced by $5 for each additional $100 of the
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a. For a married person filing jointly with her spouse, the income
threshold is $150,000. 26 U.S.C. § 6428(c)(1).
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).
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
has allowed anyone whose income is low enough that they are not required to
payments through an online “Get My Payment” portal that the IRS has
established.
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
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
ITINs to pay taxes, cannot receive economic impact payments for themselves
economic impact payment, the CARES Act not only intentionally denies adult
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 (“mixed-
status 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
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.
CARES Act, this scheme “punishes mixed-status households and denies some
provide benefits to all eligible U.S. citizen children regardless of their parents’
a. The child tax credit reaches citizen children even if their parents
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are undocumented.
43. Although the means of distributing the benefit to the child vary
“household” whereas in the CARES Act, as a result of the use of the tax
intended to aid children as distinct from their relatives. It is only the CARES
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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45. But by denying U.S. citizen children cash assistance now for
families, like many others, serious hardships—the CARES Act has inflicted
the millions.
restaurant, cleaning, retail, and child-care services—that have been hardest hit
insurance—which the CARES Act increased in light of its importance amid the
leaves their U.S. citizen children without critical income needed for basic daily
48. Even for those who have been lucky enough to keep their
that, even under normal circumstances, barely provide enough income for their
children.
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the pandemic, which has generated new necessary expenses for cleaning
infected as well as expenses related to learning aids for children who are no
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
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
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
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
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
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defined as: all U.S. citizen children under age 17 who have been or will be
under the CARES Act solely because the children have a parent who is an
59. There are multiple questions of law and fact common to the class.
These include:
60. Citizen Children Plaintiffs’ claims are typical of the class. But for
the benefits of economic impact payments intended for children. The answer
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-us-
children-unauthorized-immigrant-parents.
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members.
representatives. Their interests are aligned with the interests of the class.
tax law, and constitutional law and have been appointed as class counsel in
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
individual class members. The common questions of law will determine the
amount of the economic impact payment for individual class members may
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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
damages. The class is defined as: persons whose U.S. citizen children have not
under the CARES Act solely because at least one of the children’s parents is an
66. There are multiple questions common to the class. These include:
67. Plaintiff Parents’ claims are typical of the class. The United States
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
interests are aligned with the interests of the class. There is no known conflict
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.
Rule 23(b)(3) because the common questions of fact and law predominate over
will determine the liability of the United States to every member of the class.
of the CARES Act than potentially thousands of other lawsuits. Although the
amount of the economic impact payment for individual class members may
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
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
each of the allegations set forth in each of the preceding paragraphs of this
Complaint.
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
Amendment of the Due Process Clause. In effect, the CARES Act renders
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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.
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)
each of the allegations set forth in each of the preceding paragraphs of this
Complaint.
United States to disburse funds for the benefit of Citizen Children Plaintiffs.
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
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.
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.
specifically for children does not further the aim of denying benefits to
undocumented immigrants.
Citizen Children Plaintiffs the $500 economic impact payments to which they
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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)
caretaker.
United States to disburse funds to Parent Plaintiffs for the benefit of their U.S.
citizen children.
for children to Parent Plaintiffs, even though their children are United States
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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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.
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.
specifically for children does not further the aim of denying benefits to
undocumented immigrants.
Citizen Children Plaintiffs, and all others similarly situated, the $500 economic
RELIEF REQUESTED
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and all similarly situated U.S. citizen children because of their parents’
undocumented status;
payments for the benefit of Citizen Children Plaintiffs and all similarly
status;
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Leslie Book*
Villanova University
Charles Widger School of Law
299 N. Spring Mill Rd.
Villanova, PA 19085
(610)519-6416
[email protected]
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