1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ELIJAH LEE MILLER, Case No. 23-cv-01783-PJH

6 Plaintiff, ORDER OF DISMISSAL v. 7

8 URSULA DEAN, et al., Defendants. 9

10 11 Plaintiff, a state prisoner, proceeds with a pro se civil action against a 12 governmental entity. He has been granted leave to proceed in forma pauperis. 13 DISCUSSION 14 STANDARD OF REVIEW 15 Federal courts must engage in a preliminary screening of cases in which prisoners 16 seek redress from a governmental entity or officer or employee of a governmental entity. 17 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 18 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 19 may be granted, or seek monetary relief from a defendant who is immune from such 20 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 21 Pacifica Police Dep't,

(9th Cir. 1990). 22 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 23 of the claim showing that the pleader is entitled to relief." "Specific facts are not 24 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 25 is and the grounds upon which it rests."'" Erickson v. Pardus,

(2007) 26 (citations omitted). Although in order to state a claim a complaint “does not need detailed 27 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 1 elements of a cause of action will not do. . . . Factual allegations must be enough to 2 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 4 a claim to relief that is plausible on its face."

. The United States Supreme 5 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 6 conclusions can provide the framework of a complaint, they must be supported by factual 7 allegations. When there are well-pleaded factual allegations, a court should assume their 8 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 9 Ashcroft v. Iqbal,

(2009). 10 LEGAL CLAIMS 11 Plaintiff seeks court intervention in obtaining his economic impact payment (“EIP”) 12 pursuant to the Coronavirus Aid, Relief, and Economic Security Act (The “CARES Act”), 13

Stat. 281 (2020). 14 Background 15 In Scholl v. Mnuchin,

(N.D. Cal. 2020) (Scholl II), the court 16 summarized the underlying issue that is central to plaintiff’s complaint:

17 The CARES Act, codified in part at section 6428 of the Internal Revenue Code,

, establishes a tax credit for 18 eligible individuals in the amount of $1,200 ($2,400 if filing a joint return), plus $500 multiplied by the number of qualifying 19 children.

(a). For purposes of the Act, an eligible individual is defined as “any individual” other than (1) 20 any nonresident alien individual, (2) any individual who is allowed as a dependent deduction on another taxpayer's 21 return, and (3) an estate or trust. § 6428(d). The EIP is an advance refund of the subsection (a) tax credit and subsection 22 (f) describes the mechanism for implementing the advance refund. Paragraph (1) of subsection (f) provides that “each 23 individual who was an eligible individual for such individual's first taxable year beginning in 2019 shall be treated as having 24 made a payment against the tax imposed by chapter 1 for such taxable year in an amount equal to the advance refund amount 25 for such taxable year.” § 6428(f)(1).

26 Paragraph (3) of subsection (f) requires the IRS to “refund or 27 credit any overpayment attributable to this section as rapidly as subsection after December 31, 2020.” Id. The CARES Act also 1 has a reconciliation provision between the advance refund and the tax credit such that if a taxpayer receives an advance refund 2 of the tax credit then the amount of the credit is reduced by the aggregate amount of the refund. § 6428(e). 3 Three days after the President signed the CARES Act, the IRS 4 issued a news release explaining that the agency would calculate and automatically issue an EIP to eligible individuals. 5 Declaration of Yaman Salahi (“Salahi Decl.”), Dkt. 55, Ex. 1 at 1. Though not required to do so by the Act, the IRS established 6 an online portal for individuals who are not typically required to file federal income tax returns (e.g., because an individual's 7 income is less than $12,200), which allows those non-filers to enter their information to receive an EIP. Id., Ex. 2. Individuals 8 who use the non-filer online portal have until October 15, 2020 to register in order to receive the EIP by the December 31, 2020 9 deadline imposed by the CARES Act. Id., Ex. 3.

10 On May 6, 2020, the IRS published responses to “Frequently Asked Questions” (“FAQ”) on the IRS.gov website. Id., Ex. 4. 11 Question 15 asked “Does someone who is incarcerated qualify for the Payment [i.e., an EIP]?” The IRS responded: 12 A15. No. A Payment made to someone who is 13 incarcerated should be returned to the IRS by following the instructions about repayments. A person is 14 incarcerated if he or she is described in one or more of clauses (i) through (v) of Section 202(x)(1)(A) of the 15 Social Security Act (

(x)(1)(A)(i) through (v)). For a Payment made with respect to a joint return 16 where only one spouse is incarcerated, you only need to return the portion of the Payment made on account of 17 the incarcerated spouse. This amount will be $1,200 unless adjusted gross income exceeded $150,000. 18

(footnotes omitted). 19 In Scholl v. Mnuchin,

(N.D. Cal. 2020) (Scholl I), the court 20 preliminarily certified the following class: 21 All United States citizens and legal permanent residents who: 22 (a) are or were incarcerated (i.e., confined in a jail, prison, or 23 other penal institution or correctional facility pursuant to their conviction of a criminal offense) in the United States, or have 24 been held to have violated a condition of parole or probation imposed under federal or state law, at any time from March 27, 25 2020 to the present;

26 (b) filed a tax return in 2018 or 2019, or were exempt from a 27 filing obligation because they earned an income below $12,000 (c) were not claimed as a dependent on another person's tax 1 return; and

2 (d) filed their taxes with a valid Social Security Number, and, if they claimed qualifying children or filed jointly with another 3 person, those individuals also held a valid Social Security Number. 4 Excluded from the class are estates and trusts; defendants; the 5 officers, directors, or employees of any defendant agency; and, any judicial officer presiding over this action and his/her 6 immediate family and judicial staff. 7 Id. at 1047. In Scholl II, the court granted final certification of this class and entered the 8 following declaratory relief:

9 [T]he court finds and declares that title

does not authorize defendants to withhold advance refunds or credits 10 from class members solely because they are or were incarcerated. The court further finds and declares that 11 defendants’ policy that persons who are or were incarcerated at any time in 2020 were ineligible for advance refunds under 12 the Act is both arbitrary and capricious and not in accordance with law. 13 Scholl II at 692. A permanent injunction was entered and defendants were to reconsider 14 EIPs that were denied solely due to an individual’s incarcerated status.

. 15 With respect to specific payments the court stated: 16 The court takes no position on whether plaintiffs or class 17 members are in fact owed advance refund payments or the amount of those payments. Indeed, the court’s Rule 23(b)(2) 18 finding was premised on the “indivisible nature of the injunctive or declaratory remedy warranted” but not “an individualized 19 award of monetary damages.” Dkt. 50 at 42 (quoting Wal-Mart Stores, Inc. v. Dukes,

,

, 20

(2011)). The court’s determination in this order is that the IRS’s action was “arbitrary, capricious, . . . or 21 otherwise not in accordance with law” and the appropriate remedy is to “hold unlawful and set aside” that agency action. 22

(2). It is incumbent on the IRS, as the agency charged by Congress, to make individual determinations 23 whether an individual is an “eligible individual” and meets the various criteria delineated in the Act. 24

. 25 Discussion 26 Plaintiff is incarcerated and part of the Scholl class. He states that EIPs were sent 27 but he did not receive them, and they were either lost or mailed to the wrong person. He 1 seeks the court to compel the IRS to provide new EIPs. 2 Plaintiff is not entitled to relief to the extent he seeks the court to compel the IRS to 3 reissue his EIPs pursuant to Scholl or the CARES Act. The court in Scholl found that the 4 EIP could not be denied only because an individual was incarcerated. However, the 5 court was clear that it took no position on whether individual incarcerated plaintiffs were 6 owed the EIP, which is the relief sought in the instant case. That responsibility fell to the 7 IRS to make an individual determination. More importantly, funds cannot now be 8 distributed pursuant to the CARES Act. As noted above, the CARES Act imposed a 9 deadline of December 31, 2020, for EIPs to be made or allowed. That deadline has 10 passed, and no more funds may be issued.1 Plaintiff cannot obtain the relief he seeks in 11 this case. 12 For all these reasons, plaintiff fails to state a claim for relief. To the extent EIPs 13 were mailed and lost, plaintiff should contact the IRS to learn more information. Simply 14 that he did not receive them does not confer the court with jurisdiction in this case. If 15 plaintiff learns more relevant information he may seek to reopen this case. 16 CONCLUSION 17 The action is DISMISSED for failure to state a claim. The clerk shall close this 18 case. 19 IT IS SO ORDERED. 20 Dated: May 15, 2023 21 22 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 23 United States District Judge

24

25 26 1 Prior to the deadline, 385,995 incarcerated individuals were issued the EIP after they 27 were reconsidered despite previously being identified as incarcerated. Scholl v. Mnuchin,