I-5-4-68.Dut Ban Le v. Barnhart

Table of Contents
I Purpose
II Background
III Guiding Principles for Processing and Adjudication
IV Definition of Class
V Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
VI Inquiries
VII Attachments for Dut Ban Le Class Action Cases
Attachment 1 Dut Ban Le Settlement
Attachment 2 Dut Ban Le Potential Class Member Notice
Attachment 3 Dut Ban Le Reply Form
Attachment 4 Dut Ban Le Class Claim Screening Sheet
Attachment 5 Dut Ban Le Presumed Class Membership Route Slip
Attachment 6 Dut Ban Le Not Eligible for Consideration for Relief Notice
Attachment 7 Dut Ban Le Good Cause Denial Notice
Attachment 8 Dut Ban Le Route Slip

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 I-3-1-25 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:

  • Who filed a claim for disability benefits pursuant to Title XVI of the Social Security Act; and

  • Who requested a hearing by an ALJ on that claim or any issues arising from that claim; and

  • Whose request was dismissed by or who received a less than fully favorable decision on the claim from the subject ALJ; and

  • 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:

  1. 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);

  2. 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

  3. 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:

  1. 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

  2. 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

  3. Requested judicial review in a timely manner of his/her individual decision or dismissal by the subject ALJ.

NOTE:

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

1. Notification

  1. 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.

  2. 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.

  3. 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.

  4. 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-703-605-8251
  5. 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.

  6. 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.

3. Folder Reconstruction

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.

B. OHA Screening Actions

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.

1. Pre-Screening Actions

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.

NOTE:

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.)

2. Screening Actions

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

Attachment 1 —

Dut Ban Le Settlement

Attachment 2 —

Dut Ban Le Potential Class Member Notice

Attachment 3 —

Dut Ban Le Reply Form

Attachment 4 —

Dut Ban Le Class Claim Screening Sheet

Attachment 5 —

Dut Ban Le Presumed Class Membership Route Slip

Attachment 6 —

Dut Ban Le Not Eligible for Relief Notice

Attachment 7 —

Dut Ban Le Good Cause Denial Notice

Attachment 8 —

Dut Ban Le Route Slip

Attachment 1. Dut Ban Le Settlement

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

DUT BAN LE, TRANG LE, ) Case No. 98cv1896-L(JFS)
HOA NGUYEN, VUI NGUYEN, )  
THANH NGUYEN, HUNG TONG, ) SETTLEMENT AGREEMENT
HOANH NGUYEN, THAN PHAM, )  
BE NGUYEN, YEN CHU, HIEN TA, )  
TIENG TRANG, DAO BUI, and )  
DOES 1 to 10, )  
  )  

Plaintiffs,

)  
  )  

v.

)  
  )  
JO ANNE B. BARNHART, )  
Commissioner, Social Security )  
Administration, )  
  )  

Defendant.

)  
__________________________________ )  

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.

DATED: __________

______/s/______
ALEXANDRA T. MANBECK
Attorney for Plaintiffs

DATED: __________

______/s/______
QUOC M. VUONG
Attorney for Plaintiffs

DATED: __________

______/s/______
MICHAEL H. CROSBY
Attorney for Plaintiffs

DATED: __________

______/s/______
PATRICK K. O'TOOLE
United States Attorney

   

______/s/______
JOHN B. SCHERLING
Assistant U.S. Attorney

   

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

Attachment 2. Dut Ban Le Potential Class Member Notice

Social Security Administration

Name:  
Address:  
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.

Attachment 3. Dut Ban Le Reply Form

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

[Name] Date:
[Address]

Social Security Number:

[City State ZIP]  

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

CLASS ACTION CODE: DL

1. CLAIMANT'S SSN: ___ ___ ___ - ___ ___ - ___ ___ ___ ___

2. CLAIMANT'S NAME (Last, First)

_____________________    _____________________

 

3. DATE OF BIRTH (Month, Day, Year)

 

4. CLAIM NUMBER: ___ ___ ___ - ___ ___ - ___ ___ ___ ___

(BIC/ID)
___ ___

5. SCREENING DATE (Month, Day, Year)
___ ___ - ___ ___ - ___ ___ ___ ___

 

a. SCREENING RESULT:

___ MEMBER (J)/ELIGIBLE FOR CONSIDERATION

___ NONMEMBER/MEMBER (F) NOT ELIGIBLE FOR CONSIDERATION

c. SCREENOUT CODE

___ ___ (See item 12)

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?

Yes ___ No ___

If No, go to 13.

7. Is the individual a Southeast Asian refugee claimant?

Yes ___ No ___

If No, go to 13.

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)?

Yes ___ No ___

If No, go to 13.

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?

Yes ___ No ___

If No, go to 13.

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?

Yes ___ No ___

If Yes, go to 13.

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)?

Yes ___ No ___

If Yes, go to 13.

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.

Yes ___ No ___

If Yes, go to 13

If No, claimant is a class member.

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".

No other screenout code entry is appropriate.

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

_______________ __________________ ________________

_______________ __________________ ________________

_______________ __________________ ________________

15. IDENTIFICATION OF SCREENER:

COMPONENT:

PHONE NUMBER:

DATE:

16. SCREENER'S SIGNATURE:

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.

Claim Number

Filing Date

Decision Den or Cess

Alleged Onset or Cess Date

Issue
Med   Non-Med

         
         
         

______________
Signature

____________
Office

_________
Date

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

 

Social Security Administration
______________________________
Address
______________________________
City     State    Zip Code
______________________________
Telephone Number
______________________________
Claim Number

___________________________________
Claimant's Name
___________________________________
Address
___________________________________
City    State    Zip Code

 

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

Attachment 8. Dut Ban Le Route Slip

ROUTING AND TRANSMITTAL SLIP

DATE

TO:

INITIALS

DATE

1. Executive Director, OAO

   

2.

   
__XX_ACTION _____FILE _____NOTE AND RETURN
_____APPROVAL _____FOR CLEARANCE _____PER CONVERSATION
_____AS REQUESTED _____FOR CORRECTION _____PREPARE REPLY
_____CIRCULATE _____FOR YOUR INFORMATION _____SEE ME
_____COMMENT _____INVESTIGATE _____SIGNATURE
_____COORDINATION _____JUSTIFY  

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:

From:

OHA Dut Ban Le Screening Unit

Suite/Building

 

Phone Number

_______________