Case 3:20-cv-01444-FAB Document 36 Filed 05/27/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

EMANUEL RIVERA FUENTES, )

)
Plaintiff, )
)
v. ) Case No. 3:20-cv-1444-FAB
)
)
KILOLO KIJAKAZI, Acting Commissioner )
1

of the Social Security Administration, in her )

official capacity et al., )
)
Defendants. )
__________________________________________)

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR LEAVE TO AMEND COMPLAINT

INTRODUCTION

Defendants Kilolo Kijakazi, Acting Commissioner of the Social Security Administration ,

in her official capacity; and the Social Security Administration (“Official Capacity Defendants”);

together with Andrew Saul and Nancy Berryhill in their individual capacities (“Individua l

Capacity Defendants”), hereby respond to Plaintiff’s motion for leave to amend. Notwithstanding

the fact that the Court has stayed this case, Plaintiff has filed a motion for leave to amend his

complaint to add a claim under the Privileges and Immunities Clause of Article IV of the United

States Constitution, and to insert various miscellaneous paragraphs. As discussed below, the

current stay of proceedings forecloses Plaintiff’s motion. In any event, as also explained below,

amendment would be futile because Plaintiff’s proposed Privileges and Immunities claim would

1
Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is automatically substituted
for her predecessor, Andrew Saul, Commissioner of the Social Security Administration, in his
official capacity.

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be meritless, and the other paragraphs that he seeks to insert do not state a claim on which relief

can be granted. More fundamentally, Plaintiff’s proposed amendments would not cure the

fundamental defect with this lawsuit—namely, that it is has been foreclosed by the Supreme

Court’s decision in United States v. Vaello Madero, 142 S. Ct. 1539 (2022). The Court should

therefore deny Plaintiff’s motion.

STATUTORY BACKGROUND

The Social Security Administration (“SSA”) provides benefits to aged persons and persons

with disabilities primarily under two programs. Under Title II of the Social Security Act, 42 U.S.C.

§ 401 et seq., SSA pays benefits to insured workers and their families at retirement or death, or in

the event of disability. Under the Supplemental Security Income (“SSI”) program, established by

Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., SSA provides benefits to aged and

blind persons, and persons with disabilities, who meet certain income and resource requirements.

No individual is eligible for SSI benefits for any month during all of which he or she “is outside

the United States.” Id. § 1382(f)(1). For purposes of the SSI program, “the term ‘United States,’

when used in a geographical sense,” is defined as “the 50 States and the District of Columbia.” Id.

§ 1382c(e). 2

BACKGROUND

Plaintiff filed his original complaint in August 2020. Compl., ECF No. 1. That complaint

contends that, but for Plaintiff’s current residence in Puerto Rico, he would be eligible to receive

SSI disability benefits. It asserts due process and equal protection claims against Defendants in

2 Additionally, by passing a Joint Resolution in 1976, the U.S. Congress made SSI program
benefits available to residents of the Northern Mariana Islands. See Pub. L. No. 94-241, §
502(a)(1), 90 Stat. 263, 268 (1976) (codified at 48 U.S.C. § 1801 note, and implemented by 20
C.F.R. § 416.120(c)(10)).
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their official and individual capacities. Id. ¶¶ 66-144. On November 23, 2020, the Court stayed

all proceedings in this case pending the Supreme Court’s resolution of United States v. Vaello

Madero, a case involving similar claims. Order, ECF No. 23. On March 17, 2022, Plaintiff filed

a document entitled “Amended Complaint” purporting to add additional plaintiffs. ECF No. 30.

The Court issued an order four days later regarding this filing, noting that “[t]his case has been

stayed,” and that “[o]nce the stay is vacated, defendants may object to the filing of this Amended

Complaint, or respond to it.” Order, ECF No. 32. 3

On April 21, 2022, the Supreme Court issued its decision in Vaello Madero addressing

“whether, under the Constitution, Congress must extend Supplemental Security Income to

residents of Puerto Rico to the same extent as to residents of the States.” 142 S. Ct. at 1544. The

Court answered that question in the negative. Id. As the Court explained, “[t]he Constitution

affords Congress substantial discretion over how to structure federal tax and benefits programs for

residents of the Territories.” Id.

On May 13, 2022, Plaintiff filed a motion for leave to amend his complaint to make

additional changes not encompassed in the earlier-filed document entitled “Amended Complaint.”

ECF No. 34. The Court directed the Social Security Commissioner to respond to this motion on

or before May 27, 2022. Order dated May 16, 2022.

3 The Court has previously recognized, that until the stay is lifted, Defendants need not object to
the filing of, or respond to, the document entitled “Amended Complaint” (ECF No. 30). Therefore,
this opposition is limited to responding to Plaintiff’s motion to amend (ECF No. 34). In the event
that the Court were to vacate the present stay, Defendants would respectfully request an extension
of time to object to the filing of Plaintiff’s amended complaint (ECF No. 30) and/or respond to
that filing, until 14 days after the Court has lifted the stay.
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ARGUMENT

I. Until the Stay Has Been Lifted, Plaintiff’s Motion to Amend Is Premature.

Because this case is currently stayed, Plaintiff’s motion to amend his complaint is

premature. After Plaintiff had filed his original complaint, see ECF No. 1, the Court ordered:

“This case is stayed pending the Supreme Court’s final resolution of United States v. Vaello-

Madero.” Order, ECF No. 23. To date, the Court has not vacated the stay, as Plaintiff himself

concedes. See Mot. for Leave to Amend at 2, ECF No. 34 (“Mot.”) (“To this date, the stay has not

been lifted. . . .”). Indeed, when Plaintiff previously attempted to amend his complaint, the Court

expressly noted that “[t]his case has been stayed” and that “[o]nce the stay is vacated, defendants

may object to the filing of this Amended Complaint, or may respond to it.” Order, ECF No. 32.

Therefore, until the stay has been vacated, Plaintiff’s motion to amend his complaint is not properly

before the Court.

II. In Any Event, Amendment Is Futile.

Even if the pendency of a stay did not prevent the Court from entertaining Plaintiff’s

motion, and assuming arguendo that the document entitled “Amended Complaint” (ECF No. 30)

represents a prior amendment, the present amendment would be futile. Plaintiff’s proposed

Privileges and Immunities claim would not survive a motion to dismiss, and the various

miscellaneous paragraphs that he seeks to insert do not state a claim on which relief can be granted.

“If a proffered amendment would be an exercise in futility, the district court does not need

to allow it.” Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 145 (1st Cir. 2016) (citation

omitted). “‘Futility’ means that the complaint, as amended, would fail to state a claim upon which

relief could be granted,” Rife v. One W. Bank, F.S.B., 873 F.3d 17, 21 (1st Cir. 2017) (citation

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omitted), which is to say, the complaint would not withstand a motion to dismiss under Fed. R.

Civ. P. 12(b)(6). See Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).

The new paragraphs Plaintiff seeks to add are paragraphs 12, 77, 80, 105-23, 166-68, 186,

and 204 of his proposed second amended complaint. See Mot. at 4 n.2; 4 Proposed Second Am.

Compl. (ECF No. 34-1). With the exception of paragraphs 105-23, these new paragraphs merely

modify the existing claims or present background information but do not themselves state valid

claims upon which relief could be granted. Moreover, paragraphs 105-23 fail to state a valid cause

of action. Amendment would therefore be futile.

Paragraph 12 describes the U.S. Supreme Court’s recent decision in Vaello Madero, 142

S. Ct. 1539, and avers that the Court’s decision “omits mention that people in Puerto Rico are U.S.

citizens and any related analysis.” Proposed Second Am. Compl. ¶ 12. Nothing in this paragraph,

which merely describes a recent judicial decision, states a claim on which relief can be granted.

Paragraph 77 avers that “on information and reasonable belief,” unspecified persons who

traveled to Puerto Rico during the last two years were deemed ineligible to receive SSI benefits

during their residence in Puerto Rico, notwithstanding the COVID pandemic. Proposed Second

Am. Compl. ¶¶ 76-77. Nothing in these paragraphs states a valid claim for relief. As an initial

matter, a complaint cannot survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) by alleging

conclusory statements “on information and belief,” without supporting facts. The pleading

requirements set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007), forbid precisely the practice Plaintiff seeks to employ here—

namely, seeking to survive a motion to dismiss by making allegations based on facts he alleges to

4Plaintiff’s motion incorrectly numbers the paragraphs that have changed in the proposed amended
complaint.
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be in his possession, without providing the Court or Defendants with the “factual content” to permit

a response or an assessment of the credibility or plausibility of the allegations. Iqbal, 556 U.S. at

678; see also, e.g., Hampshire House Corp. v. Fireman’s Fund Ins. Co., 557 F. Supp. 3d 284, 296

& n.7 (D. Mass. 2021) (allegations “on information and belief” that COVID-19 was present at

plaintiff’s properties were “entirely conclusory”); Doe v. Brown Univ., 209 F. Supp. 3d 460, 478

(D.R.I. 2016) (complaint’s “barebones assertions and the ‘upon information and belief’ nature of

[plaintiff’s] statement fail to nudge her claim over the line from possible to plausible”), aff’d, 943

F.3d 61 (1st Cir. 2019).

In any event, Plaintiff’s allegations do not state a valid claim for relief. As explained above,

see supra Statutory Background, by the express terms of the relevant statutory text, no individua l

is eligible for SSI benefits for any month during all of which he or she “is outside the United

States,” id. § 1382(f)(1), and for purposes of the SSI program, “the term ‘United States,’ when

used in a geographical sense,” is defined as “the 50 States and the District of Columbia.” Id.

§ 1382c(e). Thus, that an individual is ineligible to receive SSI benefits for any month during all

of which he or she “is outside the United States,” as statutorily defined, is a straightforward

application of the express statutory text. Plaintiff might prefer, as a policy matter, that Congress

would have imposed a moratorium on such an application of this statutory requirement at some

point during the pandemic, but a mere allegation that Congress did not do so does not state a valid

claim for relief under principles of due process or equal protection.

Paragraph 80 of the proposed amended complaint alters Plaintiff’s proposed definition of

a putative class on behalf of which Plaintiff seeks relief to include “U.S. citizens who are not

residents of Puerto Rico who have had their SSI benefits revoked for spending more than 30 days

in Puerto Rico.” See Proposed Am. Compl. ¶ 80. However, a class definition merely defines a

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group of individuals or entities; it does not state a claim for relief. Plaintiff’s changes to the

proposed definition of this putative class therefore cannot (and do not) constitute factual

allegations that state a plausible claim for relief.

Paragraphs 105-123 allege a new cause of action under the Privileges and Immunities

Clause of Article IV of the U.S. Constitution. Proposed Am. Compl. ¶¶ 105-32. 5 That clause

provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of

Citizens in the several States.” U.S. Const., art. IV, § 2. Every court to have reached the issue—

including the First Circuit—has held that the Privileges and Immunities Clause is a limitation on

the powers of the states, and that the Clause does not apply to the federal government. See Hawes

v. Club Ecuestre El Comandante, 535 F.2d 140, 145 (1st Cir. 1976) (“Article IV, § 2 is a limitation

on powers of states and in no way affects the powers of a federal district court.”); Maehr v. U.S.

Dep’t of State, 5 F.4th 1100, 1107 (10th Cir. 2021) (Clause “appl[ies] to states, not the federal

government”), cert. denied, 142 S. Ct. 1123 (2022); Pollack v. Duff, 793 F.3d 34, 41 (D.C. Cir.

2015) (same); Nehme v. INS, 252 F.3d 415, 430 n.18 (5th Cir. 2001) (same); Nevada v. Watkins,

914 F.2d 1545, 1555 (9th Cir. 1990) (same). And even if Privileges and Immunities jurisprudence

had some relevance here, Plaintiff has failed to identify any decision holding that eligibility to

receive SSI benefits is “sufficiently basic to the livelihood of the Nation . . . as to fall within the

purview of the Privileges and Immunities Clause.” Supreme Court of Va. v. Friedman, 487 U.S.

5 The proposed claim also references the Privileges or Immunities Clause of the Fourteenth
Amendment. See id. ¶ 121. By its express terms, that Clause applies to the states only, rather than
to the federal government. See U.S. Const., amend. XIV, § 1 (providing that “[n]o State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States”).
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59, 64 (1988). 6 Plaintiff’s new proposed claim under the Privileges and Immunities Clause thus

would not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

Paragraphs 166-68 and 186 of the proposed amended complaint represent amendments to

Plaintiff’s damages claims against the Individual Capacity Defendants under Bivens v. Six

Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Specifically, Plaintiff has

qualified paragraphs 166-67 to apply only “[f]rom February 2019 to October 2020,” has inserted

a new paragraph 168 alleging that “Defendants knew or should have known that Plaintiffs are U.S.

citizens,” and has inserted the phrase “who are U.S. citizens” after the word “applicants.” See

Proposed Am. Compl. ¶¶ 166-68, 186. However, amendment of these paragraphs would be futile.

First, the Supreme Court has already determined that the context of Social Security benefits

administration is not a proper one for extending the court-made Bivens remedy. Schweiker v.

Chilicky, 487 U.S. 412, 424-29 (1988); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

That lack of a Bivens cause of action is dispositive of Plaintiff’s claims against the Individua l

Capacity Defendants and renders his proposed amendment futile. Second, qualified immunity bars

liability. In light of the Supreme Court’s Vaello Madero decision, the Individual Capacity

Defendants violated no “clearly established” constitutional right. See generally Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Plaintiff is mistaken in his contrary claim that the First Circuit’s Vaello Madero decision,

see 956 F.3d at 12, clearly established law under which the Individual Capacity Defendants could

6 In supporting his motion for leave to amend, Plaintiff places great reliance on Justice Thomas’
concurrence in United States v. Vaello-Madero. See Mot. at 3-4; Vaello-Madero, 142 S. Ct. at
1544-52. However, no other Justice joined that opinion, and it does not constitute binding
precedent. See United States v. Robinson, 241 F.3d 115, 122 n.7 (1st Cir. 2001) (single-Justice
concurrence is not binding precedent); Newton v. LePage, 789 F. Supp. 2d 172, 189 (D. Me. 2011)
(same). Instead, the Court is bound by the First Circuit’s holding that the Privileges and
Immunities Clause does not apply to the federal government.
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be liable. The Supreme Court reversed the First Circuit’s judgment. 142 S. Ct. at 1544. And an

erroneous circuit court decision that has been reversed by the Supreme Court cannot be a source

of clearly established law. Cf. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (recognizing

determination that officers did not violate the Fourth Amendment was “sufficient to resolve this

case,” but exercising discretion to correct the court of appeals’ additional qualified-immun ity

error). Indeed, for purposes of assessing qualified immunity, “[a] necessary concomitant to the

determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at

the time the defendant acted is the determination of whether the plaintiff has asserted a violation

of a constitutional right at all.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). Here, the Supreme

Court has squarely held that the Individual Capacity Defendants’ conduct at issue in this case is

constitutional. Vaello Madero, 142 S. Ct. at 1544. Consequently, Plaintiff has not alleged a

violation, and qualified immunity applies. 7

Finally, new paragraph 204 states only that “Puerto Rico is not a foreign country.”

Proposed Am. Compl. ¶ 204. This new paragraph does not state a claim on which relief can be

granted, and amendment would therefore be futile.

In sum, neither Plaintiff’s new Privileges and Immunities claim nor the miscellaneous new

paragraphs in his proposed amended complaint state valid claims for relief or resuscitate this

lawsuit after the Supreme Court’s decision in Vaello Madero. Accordingly, Plaintiff’s proposed

amendment to his complaint would be futile, and the Court should deny leave to amend.

7 Plaintiff has not properly effected service upon the Individual Capacity Defendants under Fed.
R. Civ. P. 4. The Individual Capacity Defendants accordingly reserve that defense for presentation
under Rule 12(b) should Plaintiff not voluntarily dismiss the action in light of Vaello Madero and
a dismissal motion is necessary.
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CONCLUSION

For the reasons stated above, Defendants respectfully request that the Court deny Plaintiff’s

motion for leave to amend.

Dated: May 27, 2022 Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General

BRAD P. ROSENBERG
Assistant Branch Director

/s/ Daniel Riess

DANIEL RIESS (Texas Bar No. 24037359)
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20005
Telephone: (202) 353-3098
Email: Daniel.Riess@usdoj.gov

Attorneys for Official Capacity Defendants

C. SALVATORE D’ALESSIO, JR.

Acting Director, Torts Branch

RICHARD MONTAGUE
Senior Trial Counsel, Torts Branch

/s/ Daniel C. Luecke

DANIEL C. LUECKE (Cal. Bar. No. 326695)
Trial Attorney
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044
Phone: (202) 616-3049
Fax: (202) 616-4314
E-mail: daniel.c.luecke@usdoj.gov

Attorneys for Individual Capacity Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on this 27th 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.

/s/ Daniel Riess

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