United States District Court, S.D. California
WILLIAM Q. HAYES, UNITED STATES DISTRICT JUDGE
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
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 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.
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).
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).
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. 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.
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. (ECF No. 105). On February 17,
2017, Defendant Berryhill filed a reply. (ECF No. 108).
Contentions of the Parties
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.
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.
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).
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),