Case 3:20-cv-01444-FAB Document 34 Filed 05/13/22 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF PUERTO RICO

EMANUEL RIVERA FUENTES, et al. CIV. NO. 3:20-cv-01444

Plaintiffs

v.
CLASS ACTION
ANDREW SAUL, et al. DECLARATORY JUDGMENT,
INJUNCTION,
Defendants DAMAGES

JURY DEMAND

MOTION REQUESTING LEAVE TO AMEND

PURSUANT TO Fed. R. Civ. P. 15 (a)(2)

TO THE HONORABLE COURT:

PLAINTIFFS, EMANUEL RIVERA FUENTES et al., through the

undersigned legal representative, hereby appear, and for good cause, allege and very

respectfully request this motion be granted on the following grounds:

Plaintiffs are U.S. citizens whose rights, privileges and immunities are

not diminished by the Territorial Clause. It is in the interest of Justice to allow Plaintiffs

to be heard and seen by this Honorable Court in regards to questions of facts and issues

of law that were not examined in United States v. Vaello Madero, No. 20-303, 2022 WL

1177499 (U.S. Apr. 21, 2022).

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1. Procedural Background

On August 26, 2020, Plaintiff Emanuel Rivera-Fuentes filed Complaint [1] on

behalf of the whole class of similarly situated SSI-eligible U.S. citizens who reside or

have resided in Puerto Rico.

On November 20, 2020, Defendants filed Motion to Stay [22] pending the U.S.

Supreme Court decision regarding the certiorari filed in United States v. Vaello Madero,

No. 20-303, 2022 WL 1177499 (U.S. Apr. 21, 2022). On November 23, 2020, this

Honorable Court granted said motion. [23]. As of this date, the stay has not been lifted.

On March 26, 2022, while the present case was stayed and Defendants’ time to

plead had not started running, Plaintiffs led Amended Complaint [30] as a matter of

course, adding Plaintiffs and supplemental pleadings.

On April 21, 2022, the United States Supreme Court decided Vaello Madero. In

view of the expressions made by the majority, concurring and dissident opinions,

Plaintiffs believe this case is distinguishable from Vaello Madero and request this

Honorable Court’s leave to amend the complaint pursuant to Fed. R. Civ. P. 15(a)(2).

2. Fed. R. Civ. P. 15 (a)(2) warrants leave be granted2

Fed. R. Civ. P. 15(a)(2) provides that “a party may amend its pleading only with

the opposing party’s written consent or the court’s leave. The court should freely give

leave when justice so requires.” To this date, the stay has not been lifted and Defendants’

time to respond has not started running yet. Therefore, Plaintiffs respectfully request this

Honorable Court’s leave to amend.

Plaintiffs’ request to amend the Complaint is made in good faith, without any

dilatory motives and will not cause undue delay.  Further, Plaintiffs’ proposed

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amendments and supplemental pleadings do not cause harm or prejudice to Defendants,

since: a) the proposed amendments are related to the same conduct described in the

original Complaint and the Amended Complaint, b) Defendants’ time to le their

pleadings has not started to elapse, and c) granting leave does not upend any pending

court schedule.

Most importantly, Justice requires leave be granted freely in this plight for the

rights of the most vulnerable citizens of the Nation. Plaintiffs are members of a

population for which $841 per month makes a big difference,1 yet they were made to wait

for a year and a half to see if the decision in Vaello Madero would make the exercise of

their right to access SSI viable for them sooner. If Justice has been delayed by the

Supreme Court decision in Vaello Madero, let this Honorable Court not deny Plaintiffs

the opportunity to be fully heard and seen.

3. Argument

On April 21, 2022, the U.S. Supreme Court decided United States v. Vaello

Madero, No. 20-303, 2022 WL 1177499 (U.S. Apr. 21, 2022). The U.S. Supreme Court’s

decision omits the fact that people born in Puerto Rico are U.S. citizens since 1917.

Therefore, the Court did not examine the case based on citizenship rights of Plaintiffs,

who are SSI-eligible U.S. citizens.

Justice Thomas, concurring, however, expressed that a careful “interpretation of

the Citizenship Clause might have yielded a similar, and more supportable, result.”

1 Even small amounts have a direct, measurable impact. See, for example: Troller-Renfree,
Sonya, et al., The impact of a poverty reduction intervention on infant brain activity, Proceedings
of the National Academy of Sciences (February 2022). https://www.pnas.org/doi/10.1073/
pnas.2115649119. This study concluded that “the weight of the evidence supports the conclusion
that monthly unconditional cash transfers given to the mothers in our study affected brain activity
in their infants.” (Emphasis added).
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Plaintiffs have af rmatively plead their citizenship already, but in view of Justice

Thomas’s conclusion, Plaintiffs request leave to amend their allegations to the effect that

they are U.S. citizens whose rights, privileges and immunities are not diminished by the

Territorial Clause.2

In addition, Justice Gorsuch, concurring, explicitly stated the Court should

overrule the Insular Cases. Likewise, Plaintiffs request leave to amend their allegations

to explicitly request the Insular Cases be overruled. In particular, Plaintiffs request leave

to pray that a historic decision of that magnitude be in fact accompanied by the equality

guaranteed to all American citizens that make the plight for overruling the Insular Cases

more than symbolic. Lest it be a pyrrhic victory.3

Further, Plaintiffs argue the issue of federal income tax in Vaello Madero was

limited by the speci c set of facts and the record developed there, and thus, incompletely

addressed in the courts below. The tax analysis focused on Puerto Rico versus States as

government subdivisions. Although the dollar for dollar analysis on the whole actually

weighed favorably for Puerto Rico as a political subdivision, the courts did not examine

the federal tax-payment history of individuals in all the categories eligible to SSI. Since

SSI bene ts are based on individual evaluations, not budget allocations to government

subdivisions, the courts’ analysis is incomplete.

2Plaintiffs corrected some typographical errors. The content of the pleadings are mostly the same
as the previous amendment; except the new pleadings can be found at paragraphs 12, 76, 77, 80,
105-123, 167, 168, 186, 203 of the Second Amended Complaint.
3 Plaintiffs are aware that "it is [the Supreme] Court's prerogative alone to overrule one of its
precedents.” U.S. v. Vaello-Madero, 956 F.3d 12 (1st Cir. 2020), citing State Oil Co. v. Kahn, 522
U.S. 3, 20 (1997). In view of the foregoing, Plaintiffs do not ask this Honorable Court to resolve
the Insular Cases in this proceeding. Plaintiffs just seek to reserve the argument at this time.
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Plaintiffs have alleged the law provides SSI to several other categories of

individuals who may or may not pay federal taxes. In fact, at least twice as many non-

citizens, as Plaintiffs who are U.S. citizens, receive SSI. Plaintiffs have not yet found

anything in the legislative history of the later amendments to SSI to the effect that

Congress performed a tax burden analysis when deciding to extend SSI bene ts to certain

categories of non-citizens. The Vaello Madero courts did not compare and contrast SSI-

eligible non-citizens and U.S. citizens in Puerto Rico in the context of federal taxes.

Plaintiffs argue that the payment of federal income tax as a speculative pre-requisite to

justify the exclusion of U.S. citizens in Puerto Rico from SSI is not rational, regardless of

the “bene ts and burdens” analysis.

Plaintiffs clarify that, in making this argument, they do not stand against non-

citizens receiving SSI. On the contrary, everyone who meets SSI’s criteria by de nition

suffers such poor health and poverty that the Federal Government has the duty to extend

this minimal protection to all such persons alike, regardless of where they reside or where

they come from. It is unfathomable that the Federal Government continues to uphold

distinctions between similarly disabled, poor and racially or ethnically othered U.S.

citizens.

4. Conclusion

Justice Sotomayor, dissenting, expressed “denying bene ts to hundreds of

thousands of eligible Puerto Rico residents because they do not pay enough in taxes is

utterly irrational […] and especially cruel given those citizens’ dire need for aid.”

Plaintiffs believe that, not only is there no rational basis to exclude them as U.S. citizens

on the basis of the relationship between Puerto Rico and the Federal Government as
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government subdivisions, but also that the Territorial Clause cannot deny them equal

treatment as U.S. citizens.

In her dissent, Justice Sotomayor added “Equal treatment of citizens should not be

left to the vagaries of the political process. Because residents of Puerto Rico do not have

voting representation in Congress, they cannot rely on their elected representatives to

remedy the punishing disparities suffered by citizen residents of Puerto Rico under

Congress’ unequal treatment.” Plaintiffs argue further that many of them are doubly

punished by Defendants’ unequal treatment, since some appearing Plaintiffs, and an

estimated amount of over 100,000 members of the SSI-excluded Plaintiff population, are

mentally disabled and poor U.S. citizens who cannot vote at all.

Used in another context, Justice Kagan expressed that Congress has “no magic

wand or airbrush, to erase…”4 Plaintiffs borrow those words today to express that

Congress has “no magic wand or airbrush, to erase” U.S. citizens from the territory. SSI

is made for people, not trees or acres. Congress cannot rely on the Territorial Clause to

diminish Plaintiffs’ rights, privileges and immunities as U.S. citizens.

It is in the interest of Justice to allow Plaintiffs to expose their different questions

of facts and issues of law and allow them to move forward, with human dignity.

DATED: May 13, 2022. Respectfully submitted,

By: /s/ Isabel Abislaimán-Quílez

Isabel Abislaimán-Quílez, Esq.
USDCPR No. 208914
P.O. Box 9023303
San Juan, Puerto Rico 00902-3303
Tel. (787) 525-6242
E-mail: abislaiman@yahoo.com

4 Commonwealth of Puerto Rico v. Sánchez-Valle, 579 U.S. 59, 77 (2016).

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of May, 2022, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF System, which will
automatically send notifications of this filing to all attorneys of record.