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Ha v. Colvin

United States District Court, S.D. California

July 1, 2014

THO VAN HA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

LARRY ALAN BURNS, District Judge.

Ha filed this case to challenge the denial of his claim for social security benefits by an administrative law judge. As with most challenges, Ha alleges that the ALJ was wrong to conclude that he's not disabled and is in fact capable of gainful work. But he also alleges that the Social Security Administration harassed his lawyer, Alexandra Manbeck, and impersonated Ha, and he seeks an injunction from the Court ordering that alleged conduct to stop. Now before the Court is the Commissioner's motion to dismiss and strike those additional allegations, which would reduce this case to the typical review of an unfavorable benefits decision.

I. Factual and Legal Background

An ALJ denied Ha's claim for benefits in December, 2011. He had been represented by lawyer John Martin, but after the denial Martin withdrew. In a letter dated December 26, 2011, Martin said, "After carefully reviewing your case, I do not feel that I can be of any help in appealing the ALJ's decision. Therefore, I am withdrawing as your attorney and will proceed no further on your claim." (Compl., Ex. A.) According to Ha, however, Martin withdrew because the ALJ intimidated him, and he was simply too afraid of the ALJ to appeal. (Compl. ¶ 9.) Manbeck subsequently agreed to take Ha's case and represent him going forward. She filed a request for review with the Appeals Council in January, 2012 and supplemented that request in July, 2012. It was denied on March 19, 2013, making the ALJ's decision the final decision of the Commissioner and subject to this Court's review. See Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 521 (9th Cir. 2014).

Just one week before the request for review was denied, on March 12, 2013, Manbeck received a letter from the Regional Chief Counsel of the Social Security Administration alleging various violations of the "Rules of Conduct and Standards of Responsibility for Representatives." (Compl. Ex. B.) There appear to be three separate violations alleged in the letter, some more serious than others: (1) Manbeck failed to request direct payment of fees from the SSA electronically; (2) Manbeck charged her clients fees-Ha among them-that aren't authorized by the SSA; and (3) Manbeck made a false statement to an ALJ. (This letter was followed by a "Notice of Intent to Sanction" on July 10, 2013. (Doc. No. 14-5.).)

Ha has a very different take on the March 12 letter, alleging that "in March 2013... the SSA waged a campaign of harassment against Plaintiff's attorney Alexandra Manbeck to prevent plaintiff from appealing and impersonated plaintiff." (Compl. ¶ 11.) The harassment charge, even if baseless, is at least intelligible. The impersonation charge is not. It seems Ha is alleging that by questioning his fee arrangement with Manbeck in the March 12 letter-that is, by simply naming him -the SSA's Regional Chief Counsel was somehow impersonating Ha. (Ha Aff. ¶¶ 23-24.)

In any event, Ha asserts seven claims against the Commissioner. The first six relate to the denial of Ha's claim for benefits and aren't the target of the Commissioner's motion to dismiss. It's the seventh claim that is. That claim, titled "Due Process, " alleges that the Commissioner "harassed plaintiff's attorney to prevent plaintiff from filing this action in violation of plaintiff's due process rights as guaranteed by the Fifth Amendment to the United States Constitution." (Compl. ¶ 31.) It also alleges that the Commissioner "interfered with plaintiff's relationship with his attorney in violation of plaintiff's due process rights." (Compl. ¶ 32.) Related to these allegations, Ha seeks a preliminary injunction that orders the Commissioner "to refrain immediately from harassing plaintiff's attorney and interfering with plaintiff's relationship with his attorney, " as well as a permanent injunction "perpetually enjoining and restraining defendant from harassing plaintiff's attorney in order to prevent plaintiff from appealing this case in district court." (Compl., Prayer ¶¶ 2, 4.)

Ha has also requested leave to amend his complaint to add an eighth claim, which is similar to his seventh and appears intended to compensate for some of the alleged deficiencies of the seventh claim that the Commissioner highlights. That eighth claim, grounded in the First Amendment, alleges that the Commissioner "selectively prosecuted plaintiff's attorney to prevent plaintiff from filing this action and to deny plaintiff access to judicial and administrative proceedings." (Doc. No. 15-1 at 35.) It alleges, more boldly, the following:

The defendant interferes with plaintiff's relationship with his attorney and prevents plaintiff from having access to legal information in violation of plaintiff's First Amendment rights, especially since defendant is the judge, prosecutor and jury in proceedings against plaintiff's attorney, since former government attorney Mary Mitchell has provided sworn testimony about the corruption and the compromised justice administered by the defendant's ALJs for the past twenty years, and since the defendant's sanctioning and final verdict against plaintiff's attorney is not subject to judicial review. (Doc. No. 15-1 at 36.)

The amended complaint also adds to the requested permanent injunction that the Commissioner be enjoined "from prosecuting plaintiff's attorney based on manufactured evidence in flawed and irretrievably compromised proceedings not subject to judicial review." (Doc. No. 15-1, Prayer ¶ 3.)

II. Standard of Review

The Commissioner's motion to dismiss Ha's seventh (and eighth) claim, and to strike the related factual allegations, was referred to Magistrate Judge Major for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Major issued her R&R on February 12, 2014, and it mostly takes the Commissioner's side. She recommends that the Court grant the Commissioner's motion to dismiss, grant in part and deny in part the Commissioner's motion to strike, and deny Ha's motion for leave to file a first amended complaint. The R&R is now fully briefed. Ha has filed an objection, and the Commissioner has filed a response. (Doc. Nos. 25, 26.)

The Court reviews an R&R on dispositive motions pursuant to Fed.R.Civ.P. 72(b)(3): "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive ...


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