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Nassiri v. Berryhill

United States District Court, S.D. California

July 19, 2017

MOHAMMAD NASSIRI, Plaintiff, Plaintiffs,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Social Security Administration; SSA AGENT NICK; SSA-AGENT 2; MARY HAGAR; DUKE DUC TRAN; and STATE and/or LOCAL AGENTS CDI DOES 21-40, Defendants.

          ORDER

          WILLIAM Q. HAYES, UNITED STATES DISTRICT JUDGE

         The matter before the Court is the Motion to Dismiss as Moot All Claims Against Acting Commissioner Nancy A. Berryhill (ECF No. 104) filed by Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, Social Security Administration (“SSA”) (“Defendant Berryhill”).

         I. Background

         On March 14, 2015, Plaintiffs initiated this action by filing a Class Action Complaint. (ECF No. 1). On May 12, 2015, Plaintiffs filed the First Amended Class Action Complaint (“FAC”). (ECF No. 15). On December 27, 2015, Plaintiffs filed the Second Amended Class Action Complaint (“SAC”). (ECF No. 63). On August 18, 2016, the Court issued an order granting in part and denying in part Defendant Commissioner of Social Security Carolyn W. Colvin's[1] motion to dismiss the SAC. (ECF No. 79). The Court denied the motion to dismiss as to the sixth [Equal Protection], eleventh [First Amendment], and thirteenth [Fourth and Fourteenth Amendment] causes of action filed by Plaintiffs Anh Van Thai, Diep Thi Nguyen, Huynh, Trai Chau, and Hoi Cuu Quan Nhan VHCH, and granted the motion to dismiss as to all other claims. Id. at 18. The Court stated, “To the extent that Plaintiffs seek damages against the United States, Commissioner Colvin sued in her official capacity, and the SSA for constitutional torts allegedly committed by federal agents, the Complaint fails to demonstrate that the United States has waived its sovereign immunity with respect to any of Plaintiffs' claims for monetary relief.” Id. at 17.

         On September 2, 2016, Defendants Colvin and the United States filed a motion to dismiss claims against them as moot. (ECF No. 82). On October 21, 2016, Plaintiffs filed a motion for leave to amend the complaint and for leave to file a Third Amended Complaint (“TAC”). (ECF No. 92).

         On December 21, 2016, the Court issued an order granting in part the motion for leave to amend the complaint. (ECF No. 100). The Court ordered that “Plaintiffs may file a Third Amended Complaint, naming only the remaining Defendants Carolyn Colvin, Nicholas Pilcher, Sundeep Patel, William Villasenor, Dulce Sanchez, Duke Tran and Mary Hagar - and only including the sixth [Equal Protection], eleventh [First Amendment], and thirteenth [Fourth and Fourteenth Amendment] causes of action alleged in Plaintiffs' Proposed Third Amended Complaint.” Id. at 6-7. On January 10, 2017, Plaintiffs filed the TAC. (ECF No. 101).

         In the TAC, Plaintiffs allege “they have been the subject of a campaign of intimidation by agents and employees of the Social Security Administration” after filing an earlier action in this district.[2] Id. at ¶ 1. Plaintiffs allege that “Defendant SSA has acted in a bad faith and in a discriminatory manner against plaintiffs, as plaintiffs who had filed affidavits against SSA” in the Phan action “were singled out for illegal searches and seizures and explicit threats of (i) criminal prosecution for filing fraudulent applications; and (ii) losing benefits whereas other applicants not filing affidavits or not suing SSA were not searched and seized, interrogated, or threatened with losing benefits.” Id. at ¶ 71. “This case is brought as a class action to obtain a declaratory judgment that SSA and other unknown state and/or local agents have been violating the plaintiffs' federal and state constitutional rights.” Id. at ¶ 2. On January 13, 2017, the Court issued an order denying the motion to dismiss filed by Defendants Colvin and the United States as moot. (ECF No. 103).

         On January 24, 2017, Defendant Berryhill filed the Motion to Dismiss as Moot All Claims Against Acting Commissioner Nancy A. Berryhill. (ECF No. 104). On February 14, 2017, Plaintiffs filed a response in opposition.[3] (ECF No. 105). On February 17, 2017, Defendant Berryhill filed a reply. (ECF No. 108).

         II. Contentions of the Parties

         Defendant Berryhill contends that the only remaining claims against her should be dismissed as moot. Defendant Berryhill asserts that the SSA has closed its investigation of Plaintiffs' counsel Alexandra Manbeck. Defendant Berryhill contends that there is no ongoing conduct by SSA for the Court to enjoin.

         Plaintiffs contend that this action is not moot as to Defendant Berryhill because Plaintiffs continue to suffer physical and emotional damages arising from searches and interviews conducted by individual Defendants employed by the SSA in 2014 and 2015. Plaintiffs contend that Defendant Berryhill and the SSA continue to retaliate against Plaintiff Anh Thai by withholding Social Security benefits from her. Plaintiffs contend that Defendant Berryhill “can still be sued for injunctive relief with respect to plaintiff Anh Thai, and the Bivens claims of SSA's employees are of a compensatory and punitive character and are properly joined with plaintiffs' civil rights claims against SSA.” (ECF No. 105 at 11). Plaintiffs contend that this Court should deny the Motion to Dismiss because this Court has previously rejected Defendants' identical motion to dismiss on mootness grounds.

         III. Analysis[4]

         “‘The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.'” Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)). “A federal court lacks jurisdiction unless there is a ‘case or controversy' under Article III of the Constitution.” McCullough v. Graber, 726 F.3d 1057, 1059 (9th Cir. 2013). “Article III requires that a live controversy persist throughout all stages of the litigation.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005) (en banc). “However, ‘[t]he burden of demonstrating mootness is a heavy one.'” Feldman, 518 F.3d at 642 (quoting Gordon, 893 F.2d at 1244). “‘In general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.'” Pub. Utils. Com'n of State of. Cal. v. F.E.R.C., 100 F.3d 1451, 1458 (9th Cir. 1996) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)) (citations and quotation marks omitted).

         On August 29, 2016, the Court ordered that the Plaintiffs' SAC “fail[ed] to demonstrate that the United States has waived its sovereign immunity with respect to any of Plaintiffs' claims for monetary relief.” (ECF No. 79 at 17). On December 21, 2016, the Court granted Plaintiffs leave to file the TAC asserting three claims against Defendant Colvin (who has been subsequently substituted by Defendant Berryhill): the Equal Protection claim for illegal retaliation, the First Amendment claim, and the Fourth and Fourteenth Amendment claim for search and seizure violations. (ECF No. 100 at 6-7). While Plaintiffs' “Prayer for Relief” section of the TAC includes a claim for “compensatory and punitive damages against the defendants, jointly and severally” (ECF No. 101 at 36), Plaintiffs' ...


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