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:
respond to the notice informing them of the opportunity to request review;
and
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-3-2-25 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:
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);
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
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:
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
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
Requested judicial review in a timely manner of his/her individual
decision or dismissal by the subject ALJ.
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
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.
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.
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.
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
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.
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.
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
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
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.
Social Security Administration
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.
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
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.
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.
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
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
Social Security Administration
Important Information
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
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:
