Metropolitan News-Enterprise


Friday, February 21, 2020


Page 1


Ninth Circuit:

Action Against D.A.’s Investigators Must Be Reinstated

Panel Declares That Vietnamese Refugees Have Stated Federal Rights Claim Based Upon Alleged Intrusions Into Their Homes by Armed Officers Acting in Conjunction With Social Security Administration


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reinstated an action against two Los Angeles District Attorney’s Office investigators who allegedly entered the respective homes of three Vietnamese refugees without their consent and used bullying tactics in seeking to uncover whether their disability claims were genuine.

Driving the entries by the investigators—assigned to work cooperatively with the Social Security Administration (“SSA”)—was an investigation of the attorney for the claimants.

The memorandum opinion, filed Wednesday, comes in litigation that began March 14, 2015, with a putative class action against the SSA and others alleging “the government’s tampering with evidence and obstructing justice by waging an ongoing campaign of harassment and intimidation, and, as a result, creating fear and terror in the Vietnamese, Iranian and Somalian community of refugees and immigrants.”

Gradually, the action has been whittled down. What remains, after the opinion by a three-judge panel, is an action under 42 U.S.C. §1983, by three individuals, Anh Tuyet Thai, Don Doan, and Tommy Nguyen, against investigators William Villasenor and Dulce Sanchez, for alleged violations of their civil rights through Fourth Amendment violations.

The opinion affirms the dismissal with prejudice by Superior Court Judge William Q. Hayes of the Southern District of California of a claim against Andrew M. Saul, commissioner of Social Security, aimed at blocking further searches and interrogations. Citing Hayes’s findings that the SSA ended its probe of the lawyer in 2015 and has no intention of reopening it, the opinion says “there is no conduct to enjoin.”

It also affirms dismissal of claims against two SSA supervisors.

Focus on Thai

The opinion centers, as did questioning at oral argument in Pasadena on Feb. 6, on conduct on the part of the investigators toward Thai. She is described in a complaint as “a fifty-three (53) year old former Vietnamese refugee who suffers from carpal tunnel disorder, chronic pain, dislocated right arm, mental illness and fibromyalgia,” said to be “unable to communicate in English” (communicating with the investigators through a relative who interpreted), and it is to have “been applying for benefits since 1999.” 

 She, unlike the other two remaining plaintiffs, alleges retaliation against her based on an affidavit she executed in connection with a prior action in which it was alleged that an administrative law judge “initiated administrative suspend plaintiffs’ attorney from practice of Social Security law” allegedly based on selective prosecution of that attorney, Alexandra Nga Tran Manbeck.

“Soon after the affidavit was filed in district court, the SSA retaliated by initiating a campaign of harassment and terror against her, in effect to discourage her in applying for benefits,” the plaintiff alleged in her pleading, proceeding to tell of the visit from Villasenor and Sanchez.

At oral argument before the Ninth Circuit, note was made by the panel of a declaration by Thai saying of that encounter with the defendants:

“I was fearful of them because they carried guns and unexpectedly barged into my home without warning. I was frozen with terror and tried as best as I could to answer their questions about how I retained my attorney and whether she had asked me to pay her advanced fees. I finally had a nervous breakdown and told the agents that I could no longer speak to them.”

View Rejected

The memorandum opinion rejects Hayes’s view that the third amended complaint “does not allege sufficient facts to support allegations that Defendants Villasenor and Sanchez acted under color of state law.” It says:

“Accepting the allegations in the operative complaint as true and construing them in the light most favorable to Thai, the complaint plausibly alleged that Villasenor and Sanchez violated Thai’s Fourth Amendment rights by entering her home without her consent in 2013 or early 2014….[G]iven the complaint’s allegations that Villasenor and Sanchez were state law-enforcement officials armed with visible police badges and weapons, who announced their official authority when questioning Thai, it is plausible that Villasenor and Sanchez were acting under color of state law.”

The opinion cites the U.S. Supreme Court’s 2012 decision in Filarsky v. Delia in which it was declared: “Anyone whose conduct is fairly attributable to the state can be sued as a state actor under § 1983.”

The opinion adds:

“For the same reason, the district court erred in dismissing Doan’s and Nguyen’s claims that state law-enforcement agents violated their Fourth Amendment rights.”

Hayes did not discuss qualified immunity. However, the opinion says:

“Because it was clearly established at the time of the incident that, absent a warrant or exigent circumstances, a law enforcement officer could not enter a person’s home without consent, these claims against Villasenor and Sanchez cannot be dismissed at this stage of the proceedings on qualified-immunity grounds.”

The case is Thai v. Saul, 18-55304


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