ISSUED: October 20, 2003
I. Purpose
This Temporary Instruction (TI) sets forth the procedures
for implementing the parties' joint Settlement Agreement (see
Attachment 1), approved by the United States District Court for the
Southern District of California on November 19, 2002, in the Dut
Ban Le v. Barnhart class action involving allegations
of bias by an Administrative Law Judge (ALJ) against Southeast
Asian Supplemental Security Income (SSI) disability refugee claimants.
Pursuant to the terms of the Settlement, the OHA Headquarters
Dut Ban Le Screening Unit (located at 5107
Leesburg Pike, 1 Skyline Tower, Suite 1605, Falls Church, VA 22041;
office code Y50) will send individual notices to approximately
61 class members informing them of their opportunity to request
Appeals Council review of their claims. The Screening Unit will
screen the requests received, and will forward the files of eligible
claimants to the Appeals Council for consideration.
II. Background
The lawsuit was filed against SSA on October 19, 1998 in the
United States District Court for the Southern District of California.
The district court certified the class as consisting of Southeast
Asian SSI refugee disability claimants who received a disability
denial (unfavorable or partially favorable hearing decision) or
dismissal from ALJ Albert Tom (hereinafter the subject ALJ) on or
after January 1,1995 through December 31, 1999. The settlement
of the lawsuit stated SSA would take certain specified actions including
giving potential class members the opportunity to request Appeals
Council review.
III. Guiding Principles
for Processing and Adjudication
Under Dut Ban Le, the Appeals Council
will consider the request for review of those persons who:
1)
respond to the notice informing them of the opportunity
to request review; and
2)
are determined, after screening by the Dut
Ban Le Screening Unit to be class members potentially
eligible for relief (see Parts IV. and V. below).
The Appeals Council will consider the cases of screened-in
class members pursuant to the normal regulatory rules for consideration
of requests for review (see 20 CFR 416.1467 et. seq.).
Class members can submit new and material evidence if it relates
the period on or before the date of the subject ALJ hearing decision
(see 20
CFR 416.1476(b)). As the Dut Ban Le class
action plaintiffs have alleged that the subject ALJ displayed improper
biases, the Appeals Council in considering the requests for review
will comply with the requirement of HALLEX HA 01320.025 and audit the hearing
recording in each class member case. As stated in the settlement,
if the Appeals Council grants review and remands a case to an ALJ
(per the settlement not the subject ALJ), the appeal rights at 20 CFR 416.1455 (the
effect of an administrative law judge's decision) and 416.1467-416.1481 (Appeals
Council review) will apply with respect to the new ALJ decision,
and not the regulatory language regarding individual court remand
cases. If the Appeals Council denies review, the judicial appeal rights
set forth in 20
CFR 416.1481 will apply.
IV. Definition of Class
Except as noted below, for purposes of implementing the terms
of the Settlement and Order, the Dut Ban Le class
membership potentially eligible for relief consists of all Southeast Asian
SSI disability refugee claimants:
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Who filed a claim
for disability benefits pursuant to Title XVI of the Social Security Act;
and
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Who requested a hearing by an ALJ on that claim
or any issues arising from that claim; and
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Whose request was dismissed by or who received a
less than fully favorable decision on the claim from the subject
ALJ; and
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Whose dismissal or decision by the subject ALJ was
dated on or after January 1, 1995 through December 31, 1999.
A. Individuals Who Will
Receive a Potential Class Member Notice and are Eligible to Request
Review of Their Claims Under Dut Ban Le:
(i)
Class members who did not request Appeals Council
review of their dismissal or decision from the subject ALJ that
was issued during the applicable period, or did not request review
in a timely manner, i.e., within 60 days of receipt of the hearing
decision or dismissal (or any period extended by the Appeals Council);
(ii)
Class members who requested Appeals Council review
of their dismissal or decision that was issued during the applicable
period by the subject ALJ and whose requests for review were denied
by the Appeals Council; and
(iii)
Class members who requested judicial review of their
individual claims involving a decision issued by the subject ALJ
during the applicable period, but had such requests dismissed as
being untimely filed.
B. Individuals Who Are
Excluded From Consideration for Review of Their Claims Under Dut
Ban Le:
A person is
not a class member eligible to be considered
for Dut Ban Le relief if the individual:
(i)
Successfully appealed an adverse decision or dismissal
by the subject ALJ and ultimately received all of the benefits sought
in the claim before the subject ALJ whether by administrative action
or by judicial order, or
(ii)
Received a new hearing decision from an ALJ other
than the subject ALJ on his/her class member claim following a remand
by the Appeals Council; or
(iii)
Requested judicial review in a timely manner of
his/her individual decision or dismissal by the subject ALJ.
If a class member is deceased, the
usual survivor and substitute party provisions and existing procedures
for determining distribution of any potential underpayment may apply.
If further development is needed, the normal procedures for such
development will apply.
V. Determination of Class
Membership and Eligibility for Relief and Preadjudication Actions
A. Pre-Screening Actions
- General
a.
The Dut
Ban Le Screening Unit shall send an individual notice
to the last known address of every individual who has been identified
by computer run as a potential class member (Attachment 2). Individuals
will have 60 days from the date they receive the notice, unless
extended for good cause, to request that SSA consider their request
for review under the terms of the Dut Ban Le Settlement and Order.
SSA will presume receipt of the notice within five days after the
date of notice, unless the notice is returned as undeliverable or
the individual establishes that receipt actually occurred later.
b.
An individual who does not receive the potential
class member notice but believes that he/she is eligible for relief,
may request a review of his/her Dut Ban Le claim(s)
by contacting any SSA office within 60 days of the date that SSA
initially mails the notices to the system-identified potential class
members, and having an SSA employee fill out a SSA 795 form. All
response forms and requests for relief including those filed by
individuals who did not receive the potential class member notice
(i.e., individuals who contact SSA by telephone, in person, or in
writing) should be faxed or mailed to the Dut Ban Le Screening
Unit. Requests for change of address (filed using Attachment 3) should
also be forwarded to the Dut Ban Le Screening
Unit.
c.
SSA employees who are contacted should inform the
individual that to be a potential class member he/she must be a
Southeast Asian SSI refugee disability claimant who received a disability
denial (unfavorable or partially favorable hearing decision) or dismissal
from ALJ Albert Tom (hereinafter the subject ALJ) on or after January
1,1995 through December 31, 1999.
d.
The SSA employee should obtain an OHA query for
the individual which identifies the hearing disposition for that
individual by the subject ALJ that occurred during the applicable
time frame and attach it to the SSA 795 Form. The SSA office must
fax or mail the form and the query to:
Dut Ban Le Screening Unit
OHA
1
Skyline Tower, Suite 1605
5107 Leesburg Pike
Falls
Church, VA 22041
Fax number-703-605-8251e.
The Dut Ban Le Screening
Unit will analyze for the timeliness of the reply form (Attachment
3). The Screening Unit will notify the servicing FO of untimely
responses and request that the FO, using normal procedures, develop
for possible evidence of good cause for the untimely response.
Good cause determinations will be based on the standards in 20 CFR §§ 404.909, 404.911, 416.1409 and 416.1411.
f.
If good cause is established, the FO will forward
the good cause determination and any folders currently in the FO,
to the Dut Ban Le Screening Unit. All title
XVI only folders, including current claim folders currently reading
into the FO will be associated with the query package from the Dut
Ban Le Screening Unit. The FO will then ship the query
package with all folders to the Dut Ban Le Screening
Unit (see the address above in paragraph a). If good cause is not
established, the FO will send the individual a good cause denial
notice (Attachment 7).
2. Folder Retrieval
Process
The Dut Ban Le Screening Unit will
work with the appropriate components to retrieve folders after
an individual requests review.
When claim folders cannot be located, the Dut Ban
Le Screening Unit will forward any information it has
on cases that need to be reconstructed with a reconstruction request (Attachment
5) to the servicing FO along with a copy of the documentation of
attempts to locate the file, and will request that the reconstructed
file be forwarded back to the Screening Unit for coordination of
final screening and assignment via the Office of Appellate Operations
(OAO) Executive Director's office to an Appeals Council branch.
The FO will utilize normal reconstruction procedures including
having the DDS reconstruct the medical evidence and then sending
the file back to the Screening Unit.
In cases where the claim file(s) cannot be located, systems
queries will be obtained and utilized to attempt to determine whether
the individual in question is a class member potentially eligible
for relief. However, if information contained in the queries or
otherwise obtained clearly indicates that the claimant is not a
class member potentially eligible for relief, reconstruction efforts
will not be initiated. If all the missing claims cannot be screened out
via queries, the claim file(s) will be reconstructed based upon
available information. If in trying to reconstruct, the claimant
cannot be located, or is located and declines to pursue his/her
request, the FO will follow normal procedures concerning dismissal
in such situations.
All screening will be performed by the Dut Ban
Le Screening Unit. Prior to screening, the Dut
Ban Le Screening Unit will obtain current systems queries
(e.g., OHAQ, SSID, DDSQ) to determine the status of the class member
claim(s) and other pending claim(s) (e.g., subsequent claims pending
at the DDS, OHA or court level) for individuals who request relief under
the settlement.
a. Current or Other
Claim Is Pending or Stored at OHA or in Court
If a current claim is before the Appeals Council or pending
in a HO, or a civil action is pending, the Screening Unit will advise
the OAO Executive Director's Office and where appropriate, the HO
where the current claim is pending, that the individual has also
requested relief under Dut Ban Le. If the
current file(s) is needed for screening, the Screening Unit will
request the file.
If a claimant with a pending case
should allege class membership, contact the Screening Unit for assistance
in determining the claimant's status.
b. Claim at OHA Headquarters
But No Current Action Pending
If a claim file (either a class member or a subsequent claim)
is located in OHA Headquarters but there is no claim actively pending
administrative review, i.e., Headquarters is holding the file awaiting
potential receipt of a request for review or notification that a
civil action has been filed, the OHA component will forward the
claim file to the Screening Unit. If the Screening Unit determines
that the individual is not a class member eligible for relief, the Screening
Unit will return the file to the appropriate storage location.
(See Part V.B.3., below, for non-class member processing instructions.)
The Screening Unit will complete a screening sheet (see Attachment
4) for each individual who requests relief under the settlement
and place it in the claim file. The Screening Unit will retain
a copy of the screening sheet for all cases screened.
3. Post-Screening Actions
a. Individuals Determined
to Be Class Members Eligible for Relief
If the Screening Unit determines that the individual is a
class member eligible to request review, it will forward the claim
file, the systems queries and the Screening Sheet (Attachment 4),
using Attachment 8, to the OAO Executive Director's Office for assignment
to an OAO Program Review Branch (PRB) for consideration of the request
for review (see section III above for processing instructions).
The Screening Unit will also advise the OAO Executive Director's
Office if a current claim is pending at the DDS, OHA or court level
or a subsequent claim has been allowed.
b. Individuals Determined
Not to Be Class Members Eligible for Relief
If the Screening Unit determines that the individual is not
a class member eligible for relief, the Screening Unit will:
•
Notify the individual
and representative, if any, of that determination using Attachment 6,
•
Retain a copy of the notice in the claim file; and
•
retain the claim file(s) for 90 days before sending
the file to the appropriate storage facility.
VI. Inquiries
HO personnel should direct any questions to their Regional
Office. Regional Office personnel should contact the Division of
Field Practices and Procedures in the Office of the Chief Administrative
Law Judge at (703) 605-8500. OHA Headquarters personnel should contact
the Dut Ban Le Screening Unit at (703) 605-8250.
VII. Attachments for Dut
Ban Le Class Action Cases
PATRICK K. O'TOOLE
United States Attorney
JOHN
B. SCHERLING
Assistant U.S. Attorney
California
State Bar No. 122234
Office of U.S. Attorney
Federal
Building
880 Front Street, Room 6293
San Diego,
California 92101-8893
Telephone: (619) 557-7120
Attorneys For Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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DUT BAN LE, TRANG LE, |
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Case No. 98cv1896-L(JFS) |
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HOA NGUYEN, VUI NGUYEN, |
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THANH NGUYEN, HUNG TONG, |
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SETTLEMENT AGREEMENT |
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HOANH NGUYEN, THAN PHAM, |
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BE NGUYEN, YEN CHU, HIEN TA, |
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TIENG TRANG, DAO BUI, and |
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DOES 1 to 10, |
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Plaintiffs,
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v.
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JO ANNE B. BARNHART, |
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Commissioner, Social Security |
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Administration, |
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Defendant.
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__________________________________ |
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IT HEREBY IS AGREED by and between defendant Jo Anne B. Barnhart,
Commissioner of Social Security (“Defendant”) and the
plaintiff class as defined in the order of the Court filed on March
8, 2001 (“Plaintiffs”), by and through their attorneys
of record, Alexandra T. Manbeck, Esquire, Quoc M. Vuong, Esquire
and Michael H. Crosby, Esquire, that this action will be remanded
pursuant to sentence four of 42 U.S.C. § 405(g) in accordance
with the following terms:
1.a. Members of the class who received denials (unfavorable
or partially favorable hearing decisions) or dismissals of their
supplemental security income ("SSI") disability claims from the subject
administrative law judge ("ALJ") between 1995 and 1999 who meet
the criteria discussed below will be sent a new notice offering
them the opportunity to request review by the Appeals Council of
the ALJ's decision or dismissal. The recipients of this notice
must request this additional relief within 60 days of receipt of
such notice. The individuals who will receive such notice include
the following:
(i) class members who did not request Appeals
Council review or did not do so in a timely manner, i.e., within
60 days of receipt of the hearing decision or dismissal (or any
period extended by the Appeals Council);
(ii) class members who requested Appeals Council review and
whose requests for review were denied by the Appeals Council; and
(iii) class members who have requested judicial review of
their individual claims, but have had such requests dismissed as
being untimely filed. However, all other class members who have
requested judicial review of their individual claims may continue
to pursue available administrative and judicial remedies respecting
their claims for SSI disability benefits but shall be accorded no
other relief, except as provided by paragraph 3 below. Class members
who already have obtained all the benefits sought by the aforementioned
SSI disability claims, whether by administrative action or judicial
order, will not be offered the opportunity to request Appeals Council
review of such claims.
1.b. If the Appeals Council grants review and remands a case
to an ALJ, the appeal rights in the regulations at 20 C.F.R. §§ 416.1455 and 416.1467-416.1481 (2001)
will apply with respect to the new ALJ decision, and not the regulatory
language regarding individual court remand cases set out at 20 C.F.R. §§ 416.1483-416.1484 (2001).
If the Appeals Council denies review, the appeal rights set forth
in 20 C.F.R. § 416.1481 will
apply.
1.c. Each individual class member whose claim is reviewed
pursuant to the provisions set forth in the preceding paragraphs
may be entitled to SSI disability benefits as of the date of such
application, provided that disability and other eligibility factors
are satisfied pursuant to the Social Security Act and regulations.
2. During the pendency of this litigation, the ALJ who is
the subject of the instant action voluntarily has agreed to recuse
himself from handling any class member's individual SSI disability claim.
The claim of any class member whose SSI disability claim is remanded
for a new ALJ hearing pursuant to the provisions of paragraph 1.a,
supra, shall be assigned to an ALJ other than the subject ALJ. Each
individual SSI disability claimant, including future claimants,
has the right to object to the ALJ assigned to conduct the hearing
in his or her individual case, pursuant to 20 C.F.R. § 416.1440 (2001).
3.a The parties stipulate to remand of the instant action
pursuant to 42 U.S.C. § 405(g), sentence four. The Social
Security Administration Office of Hearings and Appeals ("OHA") will
appoint a management ALJ, specifically a Hearing Office Chief ALJ
("HOCALJ"), from a region other than the region of the subject ALJ,
to conduct an evaluation to determine whether the subject ALJ has
displayed improper biases against Southeast Asian SSI disability
claimants. The HOCALJ will: examine class member claim files insofar
as they pertain to hearings and decisions involving the subject
ALJ, relevant non-class member files, and hearing tapes; interview
the subject ALJ and, to the extent it seems appropriate, third parties;
and, where relevant, accept and consider documentary evidence offered
by the plaintiffs in this context. The HOCALJ will review 30 percent
of the class claim cases, or approximately 23 cases, whichever is
greater, which will be randomly selected. In addition, the HOCALJ
will consider documentary evidence submitted by plaintiffs' counsel
regarding ten named plaintiffs' files, but such evidence will be
examined separate and apart from the random sample. The HOCALJ shall
determine whether evidence submitted is relevant. The HOCALJ will
determine whether the subject ALJ's questioning of claimants, approach
to representatives and physicians, ability to develop the record,
and overall demeanor in hearings demonstrate an ability to fairly
and impartially hear and decide Social Security disability claims.
The HOCALJ may take any other action in furtherance of the inquiry consistent
with a fair, thorough, and impartial examination of the issues.
The HOCALJ, based on his review of the evidence, will provide a
confidential internal report and recommendation to the Office of
the Chief Administrative Law Judge. The Chief Administrative Law
Judge will provide a final recommendation to the Associate Commissioner
for Hearings and Appeals consistent with the requirements of 42
U.S.C. § 405(g). The agency shall then enter a Final Agency
decision respecting the issue of the ALJ's alleged bias against
Southeast Asian SSI disability claimants. The administrative record
for the Final Agency decision will include all the relevant evidence used
in reaching the decision, but will not necessarily include specific
claim files or portions of such files. The administrative record
of the Final Agency decision will be made available to Plaintiffs'
counsel. Any personnel and program records developed and/or examined
in connection with the HOCALJ's inquiry and preparation of the aforesaid
report, and the Final Agency decision, shall be subject to the disclosure
limitations set forth in the Privacy Act, 5 U.S.C. § 552a,
the Social Security Act, 42 U.S.C. § 1306, and the Commissioner's
regulations, 20
C.F.R. §§ 401.100 et seq. (2001). OHA
shall determine any appropriate administrative action to be taken and
provide that such action be taken.
3.b. The ALJ's voluntary recusal will continue during the
pendency of this litigation. The HOCALJ review may commence after
this agreement is signed by the parties and submitted to the court
but before final approval by the court. The HOCALJ will exert good
faith efforts to complete his review within 12 months. If the HOCALJ's
review is not completed within 12 months, Defendant will notify
the court and Plaintiffs' counsel. Plaintiffs agree that they will
not seek sanctions if the HOCALJ review is not completed within
12 months. Defendant will file monthly status reports with the
court in such eventuality, stating what remains to be done, and estimating
the time required for completion of the HOCALJ review. After the
HOCALJ's internal report has been completed, but prior to the issuance
of the agency's final decision, Defendant will file status reports
with the court at 60 day intervals, beginning with the date the
HOCALJ's internal report and recommendation is provided to the Office
of the Chief ALJ.
3.c. Plaintiffs may obtain judicial review of the agency's
final decision regarding the subject ALJ's alleged bias by commencing
a civil action pursuant to 42 U.S.C. § 405(g). Judicial
review shall be limited to the administrative record and the agency's
findings of fact. The court shall have the power to enter, upon
the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the agency respecting the
issue of the subject ALJ's alleged bias. The court may, upon a
good cause showing that there is material evidence which was not made
part of the record, remand the case to the Commissioner and order
that such additional evidence be incorporated into the record.
The Commissioner shall, after hearing such additional evidence if
so ordered, modify or affirm the decision, and shall file with the
court any such additional or modified decision, and copies of the
evidence upon which the action in modifying or affirming was based.
3.d. The parties stipulate that the procedures employed by
the HOCALJ and OHA prior to issuance of the final decision described
in paragraph 3.a above, and any recommendations and/or action taken
or not taken by OHA with respect to the subject ALJ consequent to
that decision, shall not be subject to judicial review.
4. Agreement to the terms of this settlement does not mean
that Defendant concedes the accuracy of any charges brought or alleged.
Defendant similarly does not admit any liability or wrongdoing.
The parties' agreement to this settlement shall terminate the instant
action with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1).
5. The parties agree that, upon briefing by Plaintiffs and
Defendant, the court shall award Plaintiffs' counsel reasonable
attorney fees, expenses and costs pursuant to 28 U.S.C. § 2412(a)(1)
and § 2412(d)(1)(A) for past and future attorney fees,
expenses and costs claimed in this case up to and including the
date of dismissal, following final court approval of the settlement
pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
The parties further agree that, pursuant to the foregoing agreement,
Defendant will pay Plaintiffs' counsel attorney fees, expenses and
costs for legal services provided to Plaintiffs, up to and including
the dismissal of the action, as awarded by the court, stipulating
that such court award will not be less than a total amount of $100,000
or more than a total amount of $220,000. The total amount of attorney
fees, expenses and costs awarded by the court pursuant to this agreement
may be allocated among Plaintiffs' counsel as the court or Plaintiffs'
counsel deem appropriate. Such payment will be in full satisfaction
of any and all claims for attorneys' fees, costs and expenses in
this action pursuant to any statute or other basis for services
that have been performed or that will be performed up to and including
the date of dismissal. No other claims for attorney's fees, expenses
or costs by any counsel for the Plaintiffs or Plaintiff class for
services performed up to and including the date of dismissal will
be allowed in this action.
6. Notice of the aforementioned settlement terms shall be
provided to potential members of the class in the manner provided
in Rule 23(e) of the Federal Rules of Civil Procedure. The notice will
describe the lawsuit and include the main terms of the settlement.
The notice will indicate how to get a copy of the settlement and
who to contact to receive more information. The notice will not
mention the subject ALJ by name. The notice will be provided, in
the form attached hereto as Exhibit 1, to the potential class members
by first class mail to their last known addresses as reflected in
Defendant's electronic database. The mailing of the notices shall
be accomplished by the Office of the United States Attorney for
the Southern District of California (“USAO”). If any
of those notices are returned as undeliverable, the USAO will so
inform the Court and Plaintiffs' counsel.
7. Any disclosure of information made or any other disclosure
authorized under this settlement agreement shall be permitted pursuant
to the Privacy Act, 5 U.S.C. § 552a(b)(11). Authorized disclosures
include disclosures made by class counsel to persons representing
individual class members (or to persons formerly representing individual
class members on the claim and period that were at issue in the
hearing that led to membership in the class) for the purpose of
effectuating the terms and conditions of this settlement.
8. Subject to the filing and entry of a protective order
limiting the use of the information to this action, including preclusion
of the information from being used for purposes of solicitation:
(a) Defendant will provide Plaintiffs' class counsel with a list
of the potential class members, their last known addresses and their
last known telephone numbers, to the extent that Defendant has such
data available electronically, after the Rule 23(e) notice is sent
to the class members; and (b) Defendant will provide Plaintiffs'
class counsel with the identity of the random sample of class claim
cases, reviewed pursuant to paragraph 3.a above, after the issuance
of the Final Agency decision.
9. This settlement represents the full and final resolution
of, and the full and exclusive remedy for, any and all allegations,
claims, or causes of action, whether known or unknown, which have been
or could have been asserted in this action or in any other proceeding
of any kind, by reason of, with respect to, or in connection with
class members' claims.
10. Plaintiffs will accept the terms set forth herein in
full and final satisfaction of any and all claims and demands that
Plaintiffs or Plaintiffs' children, estates, heirs, successors or
assigns may now have or hereafter may acquire as a result of the
incidents alleged by Plaintiffs in this lawsuit, and the injuries
alleged in this lawsuit to have occurred to Plaintiffs by act or
operation of law.
11. Defendant, her administrators or successors, and any
department, agency or establishment of the United States, and any
officers, employees, agents or successors of any such department, agency
or establishment, hereby are discharged and released from any claims
and causes of action that have been or could have been asserted
in this action, or administratively, by reason of, with respect
to, in connection with, or that arise out of, any matters alleged
in this action; provided, however, that nothing in this paragraph
shall relieve Defendant of the duty to comply with this settlement
agreement. Nothing in this settlement agreement shall bind Defendant
to take any action that is contrary to law.
12. As to all claims, demands, causes of action and liabilities
released herein, Plaintiffs expressly waive to the fullest extent
permissible under law, any and all rights under Section 1542 of
the Civil Code of the State of California, which provides as follows:
A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have materially
affected his settlement with the debtor.
The provisions of all comparable, equivalent or similar statutes
and principles of common law of California, of the other states
of the United States, and of the United States also hereby expressly are
waived to the same extent.
13. In connection with such waiver and relinquishment, Plaintiffs
acknowledge that they are aware that they hereafter may discover
claims presently unknown or unsuspected, or facts in addition to
or different from those that they now know or believe to be true,
with respect to the matters released herein. Nevertheless, it is
the intention of Plaintiffs through this release, and with the advice
of counsel, fully, finally and forever to settle and release all
such matters, and all claims relative thereto, which heretofore
have existed, now exist, or hereafter may exist between Plaintiffs
and the United States or any of the United States' agencies, employees
and agents. In furtherance of such intention, this release shall
be and remain in effect as a full and complete release of such matters
notwithstanding the discovery or existence of any such additional
or different claims or facts relating thereto.
14. Subject to the terms of this settlement agreement, Plaintiffs
agree to satisfy all outstanding or future bills or liens which
have been asserted, or which may be asserted in the future, in connection
with treatment or compensation for any and all injuries arising
from the subject matter of the instant lawsuit and agree to hold
the United States and the United States' agencies, employees and agents
harmless from the assertion of any such bills or liens.
15. This settlement agreement and the dismissal of this action
are contingent upon the final approval of the court pursuant to
Rule 23(e) of the Federal Rules of Civil Procedure.
16. The court shall retain jurisdiction of this case for
the limited purpose of enforcement of the terms of this agreement.
17. The undersigned each acknowledge and represent that no
promise or representation not contained in this settlement agreement
has been made to them and further acknowledge and represent that
this settlement agreement contains the entire agreement between
the parties.
18. This settlement agreement shall be deemed to have been
drafted jointly by all parties and no alleged ambiguity shall be
construed against any party as the drafter.
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DATED: |
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______/s/______
ALEXANDRA T. MANBECK
Attorney
for Plaintiffs
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DATED: |
__________ |
______/s/______
QUOC M. VUONG
Attorney
for Plaintiffs
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DATED: |
__________ |
______/s/______
MICHAEL H. CROSBY
Attorney
for Plaintiffs
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DATED: |
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______/s/______
PATRICK K. O'TOOLE
United
States Attorney
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______/s/______
JOHN B. SCHERLING
Assistant
U.S. Attorney
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OF COUNSEL:
JANICE L. WALLI
Chief
Counsel, Region IX
JOHN CUSKER
Assistant Regional
Counsel
United States Social Security Administration
Attorneys
for Defendant Jo Anne B. Barnhart
Commissioner of Social
Security
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Attachment 2. Dut
Ban Le Potential Class Member Notice
Social Security Administration
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Name: |
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Address: |
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Social Security Number: |
Date: |
IMPORTANT NOTICE OF SETTLEMENT
OF
DUT BAN
LE v. BARNHART CLASS ACTION AND
DEADLINE FOR APPLYING FOR AN OPPORTUNITY TO
REQUEST REVIEW
PLEASE READ CAREFULLY
Please
Mail Back the Form Included with This Notice within 60 Days
Our records show that you applied for Supplemental Security
Income (SSI) disability benefits and received a denial (unfavorable
or partially favorable) decision or dismissal from Administrative
Law Judge (ALJ) Albert Tom (the subject ALJ) on or after January
1, 1995 through December 31, 1999. On November 19, 2002, the U.S.
District Court for the Southern District of California approved
the settlement reached by the parties in the class action lawsuit Dut
Ban Le v. Barnhart, 98cv1896-L(JFS) (S.D. Ca). This
lawsuit challenged the subject ALJ's decisions involving Southeast
Asian SSI Refugee claimants.
As part of the settlement, the Social Security Administration
agreed to give class members who received a denial decision or dismissal
from the subject ALJ on or after January 1, 1995 through December
31, 1999, a new opportunity to request review by the Appeals Council.
This notice explains what you must do if you want to request review
by the Appeals Council of your claim.
What to Do If You Want Us to Review
Your Claim Again
If you would like us to consider your claim again you must
fill out the enclosed “DUT BAN LE v. BARNHART, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION — REVIEW REQUEST FORM.” Then
send the form you complete to us in the enclosed postage-paid envelope.
Even if you now get money from us, you still may be eligible to
request an Appeals Council review of your prior claim. The result
may be that we owe you money.
YOU MUST SEND US THE FORM
WITHIN 60 DAYS FROM THE DAY YOU RECEIVE THIS NOTICE OR YOU WILL
NOT HAVE ANOTHER OPPORTUNITY TO REQUEST REVIEW OF YOUR CLAIM. DO
NOT WAIT OR YOU MAY LOSE THE RIGHT TO HAVE YOUR CLAIM CONSIDERED
AGAIN. WE WILL ASSUME THE NOTICE IS RECEIVED WITHIN 5 DAYS OF THE
DATE SHOWN ABOVE ON THE UPPER RIGHT HAND SIDE OF THIS NOTICE.
What We Will Do If You Ask Us to Review
Your Claim Again
If you send us the enclosed “REVIEW REQUEST FORM” asking
us to look at your claim again we will check to see if you are eligible
for this review. After we finish our examination, we will send
you a notice telling you if your claim is eligible for consideration
by the Appeals Council. If so, the Appeals Council will consider
your request for review of your claim.
If You Have Any Questions
If you have any questions about this
notice, please visit or call your
local Social Security office or call Social Security's toll-free
phone number at 1-800-772-1213. If you call or visit an
office, please have this letter with you. It will help us answer
your questions.
If a lawyer or other representative was helping you at any
time with your claim for disability benefits, you should contact
that person and let him or her know about this notice. You can
also contact the lawyers who represent the class: Alexandra T. Manbeck,
Esquire, 4531 University Avenue, San Diego, CA 92105, (619) 563-3588;
Michael Crosby, Esquire, 2366 Front St., San Diego, Ca. 92101,
(619) 696-7330, and Quoc Minh Vuong, Esquire, 7380 Clairemont Mesa Blvd.,
Suite 208, San Diego, Ca. 92111, (858) 565-9901.
If you cannot read English,
contact Alexandra T. Manbeck, Esquire, 4531 University Avenue, San
Diego, CA 92105, (619) 563-3588, one of the lawyers who represents
the class, for an explanation, or bring this notice to someone else
who can read it and explain it to you.
Enclosures:
Reply Form and Envelope
One liner
printed out PDF file in Vietnamese, Khmer, & Laotian characters
that says “If you cannot read English…” will
be attached.
Social Security Administration
DUT BAN LE v. BARNHART —
REVIEW REQUEST FORM
__________________________________________________________
IMPORTANT
RETURN
THIS FORM WITHIN 60 DAYS
IF YOU WANT US TO REVIEW YOUR CLAIM
AGAIN
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[Name] |
Date: |
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[Address] |
Social Security
Number:
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[City State ZIP] |
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IF YOU WANT US TO REVIEW YOUR CLAIM AGAIN, PLEASE SIGN AND
DATE THIS FORM, AND RETURN IT IN THE ENCLOSED PRE-PAID ENVELOPE.
SIGNATURE _______________________________________________________
Date _______________________________
Please write the Area code and the
telephone number where we can call you.
AREA CODE ________ TELEPHONE NUMBER
___________________
If your address is different from
that shown above, please write your correct address.
__________________________________________________________
ADDRESS (Number and Street, Apartment Number,
Post Office Box, or Rural Route)
__________________________________________________________
CITY AND STATE
ZIP CODE
If your Social Security Number is
different from that shown above, please write your correct Social
Security Number.
________________________
SOCIAL SECURITY NUMBER
Privacy Act Notice
The Social Security Act (Sections 205(a) of title II, 702 of title
VII, 1631(e)(1)(A) and (B) of
title XVI, and 1869(b)(1) and (c) of title
XVIII) allows us to collect the information on this form. We will
use the information to process your claim. You do not have to give
us this information, but without it we may not be able to process
your claim. Information may be disclosed to another person or to
another governmental agency for the administration of the Social
Security program or for the administration of programs requiring
coordination with the Social Security Administration. Explanations
about these and other reasons why information you provide us may be
used or given out are available in the Social Security offices.
If you want to learn more about this, contact any Social Security
office.
Attachment 4. Dut
Ban Le Class Claim Screening Sheet
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CLASS ACTION CODE: DL
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1. CLAIMANT'S SSN: ___
___ ___ - ___ ___ - ___ ___ ___ ___
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2. CLAIMANT'S NAME (Last,
First)
_____________________ _____________________
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3. DATE OF BIRTH (Month,
Day, Year)
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4. CLAIM NUMBER: ___ ___
___ - ___ ___ - ___ ___ ___ ___
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(BIC/ID)
___ ___
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5. SCREENING DATE (Month,
Day, Year)
___ ___ - ___ ___ - ___ ___ ___ ___
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a. SCREENING RESULT:
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MEMBER (J)/ELIGIBLE FOR CONSIDERATION
___ NONMEMBER/MEMBER
(F) NOT ELIGIBLE FOR CONSIDERATION
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c. SCREENOUT CODE
___
___ (See item 12)
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6. Did the individual file a request
for hearing before an Administrative Law Judge (ALJ) on any issues arising
from a claim for disability benefits under title XVI of the Social
Security Act?
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Yes ___ No ___
If
No, go to 13.
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7. Is the individual a Southeast Asian
refugee claimant?
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Yes ___ No ___
If
No, go to 13.
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8. Did the individual receive a dismissal
or less than fully favorable decision on any hearing requests identified
in question 6 above from the ALJ whose conduct was the subject
of the Dut Ban Le litigation (ALJ Albert
Tom, the subject ALJ)?
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Yes ___ No ___
If
No, go to 13.
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9. Was the dismissal or less than fully
favorable decision referred to in Question 8 issued on or after January
1, 1995 through December 31, 1999?
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Yes ___ No ___
If
No, go to 13.
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10. Was the dismissal or less than fully
favorable decision referred to in Question 8 changed to a fully favorable
decision following an appeal, remand from an appeal or reopening?
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Yes ___ No ___
If
Yes, go to 13.
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11. Did the individual receive a decision
on a subsequent claim that was fully favorable and awarded benefits
for the entire time period(s) at issue in the hearing decision identified
in question 8 (i.e., the potential class member claim)?
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Yes ___ No ___
If
Yes, go to 13.
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12. Did the individual receive a new
hearing decision (whether favorable or unfavorable) covering the entire
time period covered in the hearing decision(s) (i.e., the potential
class member claim), from an ALJ other than the subject ALJ.
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Yes ___ No ___
If
Yes, go to 13
If No, claimant is a class member.
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13. The individual is not
a Dut Ban Le class member eligible for consideration.
Check the "Nonmember/Member Not Eligible for Consideration" block
in item 5.b. and enter the screenout code in item 5.c. as follows:
Enter 06 if question 6 was answered "NO"
Enter 07 if question 7 was answered "NO".
Enter 08 if question 8 was answered "NO".
Enter 09 if question 9 was answered "NO".
Enter 10 if question 10 was answered "YES".
Enter 11 if question 11 was answered "YES".
Enter 12 if question 12 was answered "YES".
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No other screenout code entry
is appropriate.
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14. On the lines below,
please enter the date(s) of all applications and final decisions
considered in the screening process and indicate the administrative
level at which the final decision was made (i.e., ALJ or AC) Date
Claim Filed Date of Notice Date of Denial or Allowance
_______________
__________________ ________________
_______________
__________________ ________________
_______________
__________________ ________________
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15. IDENTIFICATION
OF SCREENER:
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COMPONENT:
PHONE
NUMBER:
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DATE:
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16.
SCREENER'S SIGNATURE:
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Attachment 5. Dut
Ban Le Presumed Class Membership Route Slip
Dut Ban Le
PRESUMED CLASS MEMBERSHIP CASE
Field Office: ________________________
Address: ___________________________
____________________________________
____________________________________
____________________________________
We have been unable to locate one or more potential Dut
Ban Le claims. Please reconstruct the missing potential Dut
Ban Le claim(s). See the OHAQ query in the attached Dut
Ban Le query package for more information about missing
claims adjudicated by the subject ALJ.
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Claim Number
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Filing Date
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Decision Den or Cess
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Alleged Onset or Cess Date
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Issue
Med Non-Med
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______________
Signature
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____________
Office
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_________
Date
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The reconstructed file(s) should be forwarded to:
The Dut Ban Le Screening Unit
SSA/OHA
5107
Leesburg Pike
1 Skyline Tower, Suite 1605
Falls
Church, VA 22041
Office code Y50
Attachment 6. Dut
Ban Le Not Eligible for Consideration for Relief Notice
SOCIAL SECURITY NOTICE
Important Information
From: Social Security Administration
Date: ____-____-____
Claim Number: ____________________
DOC ___________________________
THIS NOTICE IS ABOUT YOUR PAST CLAIM
FOR SOCIAL SECURITY OR SUPPLEMENTAL SECURITY INCOME (SSI) DISABILITY
BENEFITS PLEASE READ IT CAREFULLY!
You asked us to consider your case for review under the terms
of the Dut Ban Le v. Barnhart Commissioner
of Social Security Administration settlement agreement. We have
looked at your case and decided that you are not eligible for consideration
for review by the Appeals Council under the Dut Ban Le settlement
agreement. The reason you are not eligible for consideration for
review is checked below.
You did not file a
claim for Supplemental Security Income disability benefits.
You did not receive a dismissal or less than fully
favorable decision issued on or after January 1, 1995 through December
31, 1999 by Administrative Law Judge (ALJ) Albert Tom, whose conduct
was the subject of the Dut Ban Le case.
You are not a Southeast Asian Refugee claimant.
The less than fully favorable decision or dismissal
on your claim was changed to a fully favorable decision following
appeal, remand or reopening.
You filed another claim which resulted in a decision
having the effect of a fully favorable decision on your Dut
Ban Le claim.
Your case was sent back to another ALJ and you received
a new decision that considered the entire time period(s) at issue
in your Dut Ban Le claim.
You filed a later application for Supplemental Security
Income and received a decision on that claim which covered the time
period (s) in your Dut Ban Le claim.
You have already received all the benefits you could
receive under the Dut Ban Le settlement agreement.
Other: __________________________________________________________
__________________________________________________________________
THIS NOTICE IS NOT A DETERMINATION
ABOUT WHETHER YOU ARE DISABLED.
It is important for you to understand that we are not making
a decision about whether you are disabled. We are deciding only
that you are not eligible for consideration to request review by
the Appeals Council under the Dut Ban Le settlement.
IF YOU WANT MORE INFORMATION:
You may contact the lawyers who brought the Dut
Ban Le lawsuit. They can be reached as follows:
Alexandra T. Manbeck, Esquire, 4531 University Avenue, San
Diego, CA 92105, (619) 563-3588;
Michael Crosby, Esquire, 2366 Front St., San Diego, Ca. 92101,
(619) 696-7330, and
Quoc Minh Vuong, Esquire, 7380 Clairemont Mesa Blvd., Suite
208, San Diego, Ca. 92111, (858) 565-9901.
The Dut Ban Le lawyers can provide
information about the lawsuit.
PDF file attachment in Southeast
Asian languages that says “if you cannot read this…” will be
attached
Attachment 7. Dut
Ban Le Good Cause Denial Notice
Social Security Administration
Important Information
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Social Security Administration
______________________________
Address
______________________________
City State Zip
Code
______________________________
Telephone
Number
______________________________
Claim Number
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___________________________________
Claimant's
Name
___________________________________
Address
___________________________________
City State Zip
Code
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We received your request for review of a prior ___________
[decision or dismissal] under a court case called Dut
Ban Le v. Barnhart. The court order states that you
had to request review within 60 days
from the date notices were received by potential class members.
We will allow 5 additional days for mailing. This means that you
had to request Dut Ban Le review by __________.
Our records show that you did not ask for review until __________.
If facts showing good cause are present, we can extend the
time limit for you to request review. But, based on the facts that
you gave us we are unable to extend the time limit in your case.
Thus, we cannot review your claim under the Dut Ban
Le v. Barnhart settlement agreement.
If You Have Any Questions
If you have any questions, you may contact your local Social
Security office. The address and telephone number are printed
at the top of the notice. If you call or visit a Social Security
office, please have this notice with you. It will help us answer
your question(s). If you have someone helping you with your claim,
you should contact him/her. You or your representative may also contact
the class attorneys in the Dut Ban Le case:
Alexandra T. Manbeck, Esquire, 4531 University Avenue, San
Diego, CA 92105, (619) 563-3588;
Michael Crosby, Esquire, 2366 Front St., San Diego, Ca. 92101,
(619) 696-7330, and
Quoc Minh Vuong, Esquire, 7380 Clairemont Mesa Blvd., Suite
208, San Diego, Ca. 92111, (858) 565-9901.
The Dut Ban Le lawyers can provide
information about the lawsuit
PDF file attachment in Southeast
Asian languages that says “if you cannot read this…” will be
attached
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ROUTING AND TRANSMITTAL
SLIP
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DATE
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TO:
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INITIALS
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DATE
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1. Executive Director,
OAO
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2.
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__XX_ACTION |
_____FILE |
_____NOTE AND RETURN |
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_____APPROVAL |
_____FOR CLEARANCE |
_____PER CONVERSATION |
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_____AS REQUESTED |
_____FOR CORRECTION |
_____PREPARE REPLY |
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_____CIRCULATE |
_____FOR YOUR INFORMATION |
_____SEE ME |
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_____COMMENT |
_____INVESTIGATE |
_____SIGNATURE |
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_____COORDINATION |
_____JUSTIFY |
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REMARKS
DUT BAN LE CASE
Claimant: ___________________________________
SSN: ________________________________________
We have determined that this claimant is a Dut
Ban Le class member whose claim is eligible for consideration
by the Appeals Council. We are forwarding this file to the Office
of Appellate Operations for assignment to a Program Review Branch
(See Associate Commissioner Memorandum dated ______ for processsing
instructions.).
Attachment:
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From:
OHA Dut
Ban Le Screening Unit
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Suite/Building
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Phone Number
_______________
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