Nassiri et al v. Colvin et al

Filing 142

ORDER - Plaintiffs Motion for Reconsideration of the Berryhill Order is denied. Plaintiffs Motion for Reconsideration of the Villasenor and Sanchez Order is denied. Plaintiffs only remaining claims, their claims for damages against Defendants Hagar, Tran, Pilcher, and Patel are dismissed with prejudice. Judgment is entered for Defendants and against Plaintiffs. Signed by Judge William Q. Hayes on 1/03/2018.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Mohammad Nassiri, Diep Thi Nugyen,
Anh Van Thai, Duc Huynh, and Hoi Cuu
Quan Nhan VNCH, on behalf of
themselves and all others similarly
situated,

ORDER

Plaintiffs,

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Case No.: 15-cv-0583-WQH-NLS

v.

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Duke (Duc) Tran, Mary Hagar, Nicholas
Pilcher, Sundeep Patel, and SSA-Agent
Does 1-20,

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Defendants.

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The matters before the Court are the Order to Show Cause (ECF No. 126) and two

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Motions for Reconsideration filed by Plaintiffs (ECF Nos. 127 and 133).

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I. Background

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On March 14, 2015, Plaintiffs initiated this action by filing a Class Action Complaint

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(ECF No. 1). On December 27, 2015, Plaintiffs filed a Second Amended Class Action

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Complaint (the “SAC”). (ECF No. 63). On August 18, 2016, the Court issued an order

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dismissing all claims in the SAC except for the sixth [Equal Protection], eleventh [First

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Amendment], and thirteenth [Fourth and Fourteenth Amendment] causes of action filed by
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Plaintiffs Anh Van Thai, Diep Thi Nguyen, Duc Huynh, Trai Chau, and Hoi Cuu Quan

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Nhan VHCH. (ECF No. 79). The Court also dismissed all claims for damages against

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Defendant Carolyn Colvin in her official capacity as Commissioner of Social Security.

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(ECF No. 79 at 17).

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On October 21, 2016, Plaintiffs filed a Motion for Leave to File a Third Amended

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Complaint (ECF No. 92). On December 21, 2016, the Court issued an order granting in

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part the Motion for Leave to File a Third Amended Complaint. (ECF No. 100). The Court

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ordered that “Plaintiffs may file a Third Amended Complaint, naming only the remaining

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Defendants Carolyn Colvin, Nicholas Pilcher, Sundeep Patel, William Villasenor, Dulce

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Sanchez, Duke Tran and Mary Hagar – and only including the sixth [Equal Protection],

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eleventh [First Amendment], and thirteenth [Fourth and Fourteenth Amendment] causes of

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action alleged in Plaintiffs’ Proposed Third Amended Complaint.” Id. at 6-7.

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On January 10, 2017, Plaintiffs filed the Third Amended Complaint (the “TAC”)

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(ECF No. 101). The TAC named seven defendants: Carolyn Colvin,1 Mary Hagar, Duke

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Tran, Nicholas Pilcher, Sundeep Patel, William Villasenor, and Dulce Sanchez. Id. The

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TAC alleges that interrogations conducted by Defendants Pilcher, Patel, Villasenor, and

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Sanchez relating to an SSA investigation concerning Plaintiffs’ attorney Alexandra

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Manbeck (the “Searches”) violated the Plaintiffs’ rights under the First Amendment,

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Fourth Amendment, and the Equal Protection Clause. Id.

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On January 24, 2017, Defendant Berryhill filed a Motion to Dismiss all claims

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against her as moot. (ECF No. 104). On July 19, 2017, the Court issued an Order granting

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Berryhill’s Motion to Dismiss (the “Berryhill Order”) (ECF No. 125). The Court stated

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that “Plaintiffs’ claim for monetary relief against Defendant Berryhill remain dismissed”

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and that Plaintiffs’ claims against Berryhill are “limited to claims for injunctive relief.” Id.

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Nancy Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy Berryhill has been automatically substituted for Carolyn Colvin
as her successor as Acting Commissioner of Social Security.
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at 5. The Court stated that “[e]ach of the remaining claims against Defendant Berryhill

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concern injunctive relief relating to [the Searches].” Id. The Court found that Berryhill

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had submitted evidence showing that the SSA had ceased investigating Manbeck. Id. at 6-

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8. The Court concluded that, based on this evidence, Plaintiffs’ claims against Berryhill

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for injunctive relief no longer presented “a present controversy as to which effective relief

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c[ould] be granted” and dismissed those claims as moot. Id. at 8 (quoting Feldman v.

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Bomar, 518 F.3d 637, 642 (9th Cir. 2008)).

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On March 15, 2017, Defendants Villasenor and Sanchez moved to dismiss all claims

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against them in the TAC. (ECF No. 114). On August 8, 2017, the Court issued an Order

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granting the Motion to Dismiss filed by Villasenor and Sanchez on the grounds that “the

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TAC does not allege sufficient facts to support the allegations that Defendants Villasenor

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and Sanchez acted under color of state law” (the “Villasenor and Sanchez Order”). (ECF

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No. 126 at 6). The Court then proceeded “to order Plaintiffs to show cause whether the

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remaining Defendants can be sued for damages under Bivens v. Six Unknown Agents of the

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Federal Bureau of Narcotics, 403 U.S. 388 (1971) in light of Ziglar v. Abbasi, 137 S. Ct.

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1843 (2017).” Id. at 7. At this point in the litigation, the only claims remaining are

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Plaintiffs claims for damages against Defendants Hagar, Tran, Pilcher, and Patel.

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II. Motion to Reconsider the Berryhill Order

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On August 14, 2017, Plaintiffs filed a Motion for Reconsideration of the Berryhill

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Order. (ECF No. 127). Defendants filed a Response on September 1, 2017. (ECF No.

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132). Plaintiffs filed a Reply to Defendants’ Response on September 16, 2017. (ECF No.

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137).

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Plaintiffs assert that a decision issued by the SSA on July 19, 2017 denying Plaintiff

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Thai benefits (the “SSA Decision”) supports reconsideration. (ECF No. 127-1).2 Plaintiffs

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contend that the “SSA Decision demonstrates that Plaintiffs’ claims for relief are not moot”

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The Court grants Plaintiff’s unopposed Request for Judicial Notice of the SSA Decision (ECF No.
127-2).
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because it shows that Plaintiffs “remain subject to the SSA’s searches and the adverse use

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of the fruits of the searches.” Id. at 12, 16. Plaintiffs contend that they “are seeking the

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Court’s injunction not only of illegal searches but, as a corollary, all the fruits of the

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searches.” (ECF No. 137 at 4). Defendants contend that Plaintiffs claims for injunctive

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relief remain moot because “Plaintiffs do not assert that the conduct complained of in the

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TAC . . . (i.e., the [Searches]) is ongoing” and this Court lacks jurisdiction to hear claims

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concerning the denial of Thai’s requested benefits. (ECF No. 132 at 8-14).

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“Reconsideration is an extraordinary remedy, to be used sparingly in the interests of

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finality and conservation of judicial resources.” Kona Enters, Inc. v. Estate of Bishop, 229

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F.3d 877, 890 (9th Cir. 2000); see also United Nat’l Ins. Co. v. Spectrum Worldwide, Inc.,

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555 F.3d 772, 780 (9th Cir. 2009). “[A] motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law.” Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th

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Cir. 1999)). Reconsideration of an order

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on the basis of newly discovered evidence is warranted if (1) the moving party
can show the evidence relied on in fact constitutes ‘newly discovered
evidence’ within the meaning of Rule 60(b); (2) the moving party exercised
due diligence to discover this evidence; and (3) the newly discovered evidence
[is] of ‘such magnitude that production of it earlier would have been likely to
change the disposition of the case.’

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Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting

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Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir.

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1987).

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The Court concludes that the SSA Decision does not provide any basis for

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reconsidering the Court’s order denying as moot Plaintiff’s request for an injunction

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against future searches and interrogations. See ECF No. 125 at 6-8 (concluding that

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Plaintiffs’ claims for injunctive relief no longer presented “a present controversy as to
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which effective relief c[ould] be granted” because the SSA had ceased investigating

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Manbeck). The SSA Decision is not evidence that Defendants intend to search or

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interrogate Plaintiffs in the future. To the extent that Plaintiffs request an injunction

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preventing the SSA from considering evidence obtained during the Searches when making

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benefits determinations,3 the Court does not have jurisdiction over that request. See ECF

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No. 125 at 7-8 (explaining that 42 U.S.C. §§ 405(g) and 405(h) prevent district courts from

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reviewing SSA benefits decisions except upon the filing of a civil action commenced

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within sixty days of the mailing of a notice of the decision at issue). The Motion for

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Reconsideration of the Berryhill Order is denied.

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III. Motion to Reconsider the Villasenor and Sanchez Order

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On September 6, 2017, Plaintiffs filed a Motion for Reconsideration of the

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Villasenor and Sanchez Order. (ECF No. 127). Defendants filed a Response on October

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2, 2017. (ECF No. 139). Plaintiffs filed a Reply to Defendants’ Response on October 11,

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2017. (ECF No. 141).

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Plaintiffs assert that the SSA Decision supports reconsideration of the Villasenor and

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Sanchez Order. (ECF No. 133-1). Defendants contend that the SSA Decision does not

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qualify as new evidence with respect to the Villasenor and Sanchez Order because

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Plaintiffs were aware of the SSA Decision sixteen days before the Court issued the

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Villasenor and Sanchez Order. (ECF No. 139 at 3).

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law.” Marlyn

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Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

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Reconsideration of an order

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Plaintiffs “pray that this Court [i]ssue a permanent injunction perpetually enjoining and restraining
defendants from engaging in the conduct complained of herein.” (TAC at 36).
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on the basis of newly discovered evidence is warranted if (1) the moving party
can show the evidence relied on in fact constitutes ‘newly discovered
evidence’ within the meaning of Rule 60(b); (2) the moving party exercised
due diligence to discover this evidence; and (3) the newly discovered evidence
[is] of ‘such magnitude that production of it earlier would have been likely to
change the disposition of the case.’

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Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting

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Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir.

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1987).

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The SSA Decision does not qualify as newly discovered evidence with respect to the

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Villasenor and Sanchez Order because Plaintiffs were aware of the SSA Decision sixteen

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days before the Court issued the Villasenor and Sanchez Order. See Feature Realty, 331

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F.3d at 1093 (holding that information received eight days before the district court issued

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an order was not “newly discovered” with respect to that order). The Court concludes that

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the SSA Decision does not justify reconsideration of the Villasenor and Sanchez Order.

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IV. Order to Show Cause

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On August 8, 2017, the Court “order[ed] Plaintiffs to show cause whether the

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remaining Defendants can be sued for damages under Bivens v. Six Unknown Agents of the

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Federal Bureau of Narcotics, 403 U.S. 388 (1971) in light of Ziglar v. Abbasi, 137 S. Ct.

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1843 (2017).” (ECF No. 126 at 7). On September 11, 2017, the Plaintiffs filed a Response

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to the Court’s Order to Show Cause. (ECF No. 134). On September 25, 2017, Defendants

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filed a Response to the Court’s Order to Show Cause. (ECF No. 138). On October 3, 2017,

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Plaintiffs’ filed a Reply to Defendant’s Response. (ECF No. 140).

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In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

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(1971), the United States Supreme Court approved of an implied remedy for damages

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against a federal actor for the violation of a constitutional right. Ziglar v. Abbasi, 137 S.

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Ct. 1843, 1854 (2017) (citing Bivens, 403 U.S. at 397). In Abassi, the Supreme Court stated

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that reviewing a claim seeking an implied damages remedy for a violation of a

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constitutional right, i.e. a Bivens claim, involves two distinct inquiries. First, the reviewing
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court must decide whether the Bivens claim present a “new context.” Id. at 1860. “[A]

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Bivens remedy will not be available if there are ‘special factors counselling hesitation in

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the absence of affirmative action by Congress.’” Id. at 1857 (quoting Carlson v. Green,

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446 U.S. 14, 18 (1980)).

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A. Allegations

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The TAC contains allegations discussing four particular interactions between SSA

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Agents and individual Plaintiffs. Three of these alleged interactions involved SSA Agents

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coming to an individual Plaintiffs’ homes and questioning those Plaintiffs. See ECF No.

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101 at ¶ 27-28, 34-36, 54-56. The TAC alleges that the SSA Agents entered those

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Plaintiffs’ homes without their consent. Id. The TAC alleges that the SSA Agents

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questioned those Plaintiffs’ about their medical conditions and their relationships with their

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attorney. See id. The TAC alleges that the SSA Agents questioned those Plaintiffs in an

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aggressive and hostile manner. Id.

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The fourth interaction between SSA Agents and a Plaintiff discussed in detail in the

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TAC involved SSA Agents Pilcher and Patel and Plaintiff Mohammad Nassiri. The TAC

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alleges that Pilcher and Patel attempted to contact Nassiri at his home then, “[a]fter learning

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that he was not at home, [] located him by phone . . . and ordered him to meet them at a

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near-by coffee shop.” Id. at ¶ 44. Pilcher and Patel then allegedly aggressively interrogated

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Nassiri about his medical conditions and his relationship with his attorney. Id. at ¶¶ 45-48.

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B. New Context

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Plaintiff contends that “[t]he context here is not new because Bivens itself involved

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a claim under the Fourth Amendment for federal officers’ unreasonable search and

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seizure.” (ECF No. 134 at 9). Defendants contend that

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Plaintiffs’ claims do not resemble the three prior Bivens claims previously
approved by the Supreme Court and thus seek to expand Bivens to a new
context. . . . Plaintiffs here are not challenging ‘standard law enforcement
operations,’ but significant elements of the Social Security program involving
(1) when and how the Agency can obtain information to determine eligibility
for benefits, and (2) whether and how to regulate and investigate
representatives appearing before the Agency. This is a much different
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statutory and regulatory framework than that at issue in Bivens itself (which
did not implicate the administration of a massive and complex benefits
program), and in the only two other cases . . . in which the Supreme Court has
authorized an implied damages remedy against federal officials.

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(ECF No. 138 at 15-16).
The Court of Appeals in Abbasi determined whether the case presented a new Bivens
context by asking “whether the asserted constitutional right was at issue in a previous
Bivens case” and “whether the mechanism of injury was the same mechanism of injury in
a previous Bivens case.” 137 S. Ct. at 1859 (quoting Turkmen v. Hasty, 789 F.3d 218, 234
(2d Cir. 2015). The Supreme Court explicitly rejected this approach as inconsistent with
prior Supreme Court decisions. Id. (referencing Correctional Services Corp. v. Malesko,
534 U.S. 61 (2001) and Chappell v. Wallace, 462 U.S. 296 (1983)). The Supreme Court
stated that “[t]he proper test for determining whether a case presents a new Bivens context
is as follows. If the case is different in a meaningful way from previous Bivens cases
decided by this Court, then the context is new.” 137 S. Ct. at 1859. Consequently,
determining whether a Bivens claim present a new Bivens context requires an
understanding of the three previous Supreme Court cases that allowed a Bivens claim to
proceed: Bivens; Davis v. Passman, 442 U.S. 228 (1979); and Carlson v. Green, 446 U.S.
14 (1980).
In Bivens, the plaintiff’s
complaint alleged that . . . agents of the Federal Bureau of Narcotics acting
under claim of federal authority, entered his apartment and arrested him for
alleged narcotics violations. The agents manacled petitioner in front of his
wife and children, and threatened to arrest the entire family. They searched
the apartment from stem to stern. Thereafter, petitioner was taken to the
federal courthouse in Brooklyn, where he was interrogated, booked, and
subjected to a visual strip search.
403 U.S. at 389. The plaintiff sought damages for violations of his rights under the Fourth
Amendment. Id. The Supreme Court stated, “Having concluded that petitioner's complaint

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states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to

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recover money damages for any injuries he has suffered as a result of the agents' violation

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of the Amendment.” Id. at 397 (internal citation omitted).

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In Davis v. Passman, 442 U.S. 228 (1979), the Court ruled that the Fifth

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Amendment’s Due Process Clause provided the plaintiff with a monetary remedy for

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gender discrimination against a Congressman for firing her because she was a woman. In

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Carlson v. Green, 446 U.S. 14 (1980), the Court ruled that the Eighth Amendment’s Cruel

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and Unusual Punishment Clause gave the plaintiff a cause of action for damages against

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federal prison officials for failing to treat the plaintiff’s asthma.

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In Abbasi, the Supreme Court provided a non-exhaustive list of examples of ways in

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which a Bivens case could be different from Bivens, Davis, and Carlson, “that are

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meaningful enough to make a given context a new one.” 137 S. Ct. at 1859-60.

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A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive
intrusion by the Judiciary into the functioning of other branches; or the
presence of potential special factors that previous Bivens cases did not
consider.
Id. at 1860.

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The Supreme Court stated that a case “might” be “meaningful[ly]” different from

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Bivens, Davis, and Carlson “because of . . . the statutory or other legal mandate under

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which the officer was operating.” Id. This Court concludes that a case is meaningfully

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different from Bivens, Davis, and Carlson when the defendant officer was acting pursuant
to a program that is extensively regulated by Congress. This Court finds that Bivens cases
implicating highly-regulated government programs are meaningfully different from
Bivens, Davis, and Carlson, which did not involve such a program, because the Supreme
Court has explicitly identified extensive congressional regulation of the program under

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which the defendant was acting as a factor that is relevant to the availability of a Bivens

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claim. See id. at 1858 “Sometimes there will be doubt [about the availability of a Bivens

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remedy] because the case arises in a context in which Congress has designed its regulatory

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authority in a guarded way, making it less likely that Congress would want the Judiciary

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to interfere.”).

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In this case, Plaintiffs challenge searches conducted by SSA personnel. Congress

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has extensively regulated the administration of the Social Security program. Consequently,

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this case presents a new Bivens context.

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C. Special Factors
1. Contentions of the Parties

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Plaintiffs contend that “[t]here are no special factors . . . counseling against applying

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Bivens to federal agents who unreasonably searched plaintiffs.” (ECF No. 134 at 16.

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Plaintiffs contend that their case is more like Bivens than Abbasi on the grounds that it does

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not “call[] into question the formulation and implementation of a general policy” just

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“searches and seizures by low level [officials].” Id. (quoting Abbasi, 137 S. Ct. at 1860.

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Plaintiffs contend that “there is no indication whatsoever that Congress decided not to

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legislate in the particular area of unreasonable searches and seizures in the Social Security

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context.” Id. Plaintiffs contend that “there is no alternative remedy available in this case

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. . . it is damages or nothing.” Id. (quoting Abbasi, 137 S. Ct. at 1862). Plaintiffs do not

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discuss whether special factors way against allowing Plaintiffs to collect damages for their

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First Amendment and equal protection claims.

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Defendants contend that Plaintiffs claims “implicate[] one of the nation’s largest and

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most complex legislative and regulatory schemes, the Social Security program.” (ECF No.

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138 at 17). Defendants contend that “[a]s part of this legislative and regulatory scheme,

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claimants have significant administrative and judicial remedies available to challenge

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Agency action that results in the denial of benefits.” Id. Defendants contend that implying

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a damages remedy for Plaintiffs claims could have a significant impact on the SSA’s ability

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to “gather information to determine eligibility for SSA benefits” and “investigate
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representatives appearing before the Agency.” Id. at 20. Defendants contend that, for these

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reasons, “the Judiciary is not ‘well suited, absent congressional action or instruction, to

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consider and weigh the costs and benefits of allowing a damages action to proceed.’” Id.

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at 21 (quoting Abassi, 137 S. Ct. at 1858).

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2. Applicable Law
a. Abbasi

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“The Court’s precedents now make clear that a Bivens remedy will not be available

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if there are ‘special factors counselling hesitation in the absence of affirmative action by

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Congress.’” Abassi, 137 S. Ct. at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)).

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In Abbasi¸ the Supreme Court explained “special factors counselling hesitation” by

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discussing the considerations involved in implying a damages remedy for a constitutional

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violation. “When a party seeks to assert an implied cause of action under the Constitution

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itself, . . . separation-of-powers principles are or should be central to the analysis. The

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question is ‘who should decide’ whether to provide for a damages remedy, Congress or the

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courts?” Id. (quoting Bush v. Lucas, 462 U.S. 367, 390 (1983)).

The Supreme Court

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concluded that “[t]he answer most often will be Congress.” Id.

The Supreme Court

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stressed that “it is a significant step under separation-of-powers principles for a court to

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determine that it has the authority, under the judicial power, to create and enforce a cause

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of action for damages against federal officials in order to remedy a constitutional

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violation.” Id. at 1856; see also id. at 1858 (“It is not necessarily a judicial function to

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establish whole categories of cases in which federal officers must defend against personal

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liability claims in the complex sphere of litigation, with all of its burdens on some and

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benefits to others.”).

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The Supreme Court explained that recognizing damage remedies for constitutional

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violations is generally not a judicial function because “the decision to recognize a damages

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remedy requires an assessment of its impact on governmental operations systemwide . . .

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includ[ing] the burdens on Government employees who are sued personally, as well as the

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projected costs and consequences to the Government itself.” Id. at 1858. Congress, not
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the courts, should decide whether to recognize a damages remedy because doing so

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“involves a host of considerations that must be weighed and appraised.” Id. at 1857

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(quoting Bush, 462 U.S. at 390). The Supreme Court explained that “the Legislature is in

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the better position to consider if ‘the public interest would be served’ by imposing a ‘new

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substantive legal liability.’” Id. (quoting Schweiker v. Chilicky, 487 U.S. 412, 426–427

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(1988)). “Congress, then, has a substantial responsibility to determine whether, and the

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extent to which, monetary and other liabilities should be imposed upon individual officers

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and employees of the Federal Government.” Id. at 1856.

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Based on this reasoning, the Supreme Court concluded that a “special factor

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counseling hesitation” is one which would “cause a court to hesitate” before concluding

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that “the Judiciary is well suited, absent congressional action or instruction, to consider and

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weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1858. A

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putative Bivens claim must be dismissed if it implicates any such “special factors.” Id. at

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1857 (“[A] Bivens remedy will not be available if there are ‘special factors counselling

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hesitation.’” (quoting Carlson, 446 U.S. at 18 (1980)).

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In sum, if there are sound reasons to think Congress might doubt the efficacy
or necessity of a damages remedy as part of the system for enforcing the law
and correcting a wrong, the courts must refrain from creating the remedy in
order to respect the role of Congress in determining the nature and extent of
federal-court jurisdiction under Article III.
Id. at 1858.
In addition to defining what constitutes a special factor, the Abbasi Court identified
a few examples. According to the Court, courts should hesitate to imply a damages remedy

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when “the case arises in a context in which Congress has designed its regulatory authority

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in a guarded way, making it less likely that Congress would want the Judiciary to interfere.”

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Id. at 1858. Courts should also hesitate to imply a damages remedy when the putative
Bivens claim “challenge[s] more than standard ‘law enforcement operations.’” Id. at 1861
(quoting United States v. Verdugo–Urquidez, 494 U.S. 259, 273 (1990)).

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The Supreme Court also identified the existence of alternative remedies as “of

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central importance.” Id. at 1862 (“It is of central importance, too, that this is not a case

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like Bivens or Davis in which ‘it is damages or nothing.’” (quoting Bivens, 403 U.S. at 410

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(Harlan, J. concurring))).

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If there is an alternative remedial structure present in a certain case, that alone
may limit the power of the Judiciary to infer a new Bivens cause of action. For
if Congress has created ‘any alternative, existing process for protecting the
[injured party’s] interest’ that itself may ‘amoun[t] to a convincing reason for
the Judicial Branch to refrain from providing a new and freestanding remedy
in damages.’

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Id. at 1858 (alterations in original) (quoting Wilkie, 551 U.S. at 550). One the other hand,

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“if equitable [and other existing] remedies prove insufficient, a damages remedy might be

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necessary to redress past harm and deter future violations.” Id. The Supreme Court noted

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that “individual instances of discrimination or law enforcement overreach . . . are difficult

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to address except by way of damages actions after the fact.” Id. at 1862.

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The Supreme Court emphasized that its opinion in Abbasi

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is not intended to cast doubt on the continued force, or even the necessity, of
Bivens in the search-and-seizure context in which it arose. Bivens does
vindicate the Constitution by allowing some redress for injuries, and it
provides instruction and guidance to federal law enforcement officers going
forward. The settled law of Bivens in this common and recurrent sphere of law
enforcement, and the undoubted reliance upon it as a fixed principle in the
law, are powerful reasons to retain it in that sphere.

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Id. at 1856-57.
b. Schweiker
Schweiker v. Chilicky, 487 U.S. 412 (1988), is the only Supreme Court decision
addressing a putative Bivens claim implicating the SSA. Schweiker involved the SSA’s
“continuing disability review” (CDR) program. Id. Under the CDR program, “most
disability determinations [must] be reviewed at least once every three years.” Id. at 415
(citing 42 U.S.C. § 421(i)). The CDR program began in 1981. Id. When the program
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began, “[t]he appropriate state agency perform[ed] the initial review, . . . benefits were

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usually terminated after a state agency found a claimant ineligible, and [benefits] were not

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available during administrative appeals.” Id.

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Finding that benefits were too often being improperly terminated by state
agencies, only to be reinstated by a federal administrative law judge (ALJ),
Congress enacted temporary emergency legislation in 1983. This law
provided for the continuation of benefits, pending review by an ALJ, after a
state agency determined that an individual was no longer disabled.
Id. (citing Pub.L. 97–455, § 2, Pub.L. 98–118, § 2).
The plaintiffs in Schweiker were three individuals who had their disability benefits
terminated pursuant to the CDR program in 1981 and 1982 only to have their disability
status restored retroactive to the dates that their benefits were denied. Id. at 417. Plaintiffs

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sought “money damages for emotional distress and for loss of food, shelter and other

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necessities proximately caused by [their] denial of benefits without due process.” Id. at

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419 (quotation omitted).
The Supreme Court began its analysis of Plaintiffs’ Bivens claim with the
proposition that
the concept of ‘special factors counselling hesitation in the absence of
affirmative action by Congress’ has proved to include an appropriate judicial
deference to indications that congressional inaction has not been inadvertent.
When the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administration, we have not
created additional Bivens remedies.

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Id. at 423.

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The Supreme Court stated that

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[t]he administrative structure and procedures of the Social Security system,
which affects virtually every American, are of a size and extent difficult to
comprehend. Millions of claims are filed every year under the Act’s disability
benefits programs alone, and these claims are handled under an unusually
protective multi-step process for the review and adjudication of disputed

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claims.

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Id. at 424 (quotations and alterations omitted).
The Supreme Court proceeded to perform a special factors analysis, noting the
existence of factors that weighed both for and against providing a Bivens remedy:
Congress has failed to provide for ‘complete relief’: respondents have not
been given a remedy in damages for emotional distress or for other hardships
suffered because of delays in their receipt of Social Security benefits. The
creation of a Bivens remedy would obviously offer the prospect of relief for
injuries that must now go unredressed. Congress, however, has not failed to
provide meaningful safeguards or remedies for the rights of persons situated
as respondents were. Indeed, the system for protecting their rights is, if
anything, considerably more elaborate than the civil service system
considered in Bush [v. Lucas, 462 U.S. 367, 390 (1983)]. The prospect of
personal liability for official acts, moreover, would undoubtedly lead to new
difficulties and expense in recruiting administrators for the programs
Congress has established.

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Id. at 425.
The Supreme Court concluded that separation of powers principles required that
Congress, not the courts, balance these factors. Id. at 429 (“Congress is the body charged
with making the inevitable compromises required in the design of a massive and complex
welfare benefits program.”). The Supreme Court stated that, in light of the 1983 law and
subsequent statutes addressing the CDR program, “Congress has discharged that
responsibility to the extent that it affects the case before us, and we see no legal basis that
would allow us to revise its decision. Id.
3. Analysis
In this case, the Court undertakes its analysis of Plaintiffs’ putative Bivens claim
mindful of the fact that “expanding the Bivens remedy is now considered a ‘disfavored’
judicial activity.” Abbasi, 137 S. Ct. at 1857. The Court is also mindful of the Supreme
Court’s recent admonitions that “[i]t is not necessarily a judicial function to establish whole
categories of cases in which federal officers must defend against personal liability claims,”
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and that “the Legislature is in the better position to consider if ‘the public interest would

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be served’ by imposing a ‘new substantive legal liability.’” Id. at 1857-58, (quoting

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Schweiker, 487 U.S. at 427). In the thirty-five years since the Supreme Court implied a

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damages remedy for a constitutional violation, “the arguments for recognizing implied

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causes of action for damages [have] beg[u]n to lose their force” and “the [Supreme] Court

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[has] adopted a far more cautious course before finding implied causes of action.” Id. at

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1855.

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Plaintiffs claims are based on interrogations conducted by SSA agents concerning

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Plaintiffs’ medical conditions and relationships with their attorney. (ECF No. 101 at ¶¶

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86-93).

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“administrative structure and procedures [for] the Social Security system[] which . . . are

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of a size and extent difficult to comprehend.” 487 U.S. at 423. In Abbasi, the Supreme

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Court stated that a “special factor” counselling hesitation is present when a “case arises in

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a context in which Congress has designed its regulatory authority in a guarded way, making

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it less likely that Congress would want the Judiciary to interfere.” 137 S. Ct. at 1858. The

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Supreme Court in Schweiker discussed multiple reasons reason that courts should hesitate

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to allowing Bivens claims against SSA personnel. One is that “Congress is the body

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charged with making the inevitable compromises required in the design of a massive and

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complex welfare benefits program.” Id. at 429. Another, more practical reason is that

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“[t]he prospect of personal liability for official acts . . . would undoubtedly lead to new

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difficulties and expense in recruiting administrators for [SSA] programs.” Schweiker, 487

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U.S. at 425.

As the Supreme Court noted in Schweiker, Congress has established

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“The creation of a Bivens remedy would obviously offer the prospect of relief for

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injuries that [otherwise would] go unredressed,” but would also have practical

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consequences on the administration of the SSA program. Id. at 425; see also Abbasi, 137

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S. Ct. at 1856 (“Claims against federal officials often create substantial [monetary] costs,

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in the form of defense and indemnification . . . [and] administrative costs attendant upon

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intrusions resulting from the discovery and trial process.”). In Abbasi, the Supreme Court
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made it clear that, when deciding whether a damages remedy is available entails balancing

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competing factors, “[t]h[at] balance is one for the Congress, not the Judiciary, to

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undertake.” 137 S. Ct. at 1863.

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The possible practical consequences on the Social Security program of a decision

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allowing an implied damages remedy against SSA agents is a “special factor” that “cause[s

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this] court to hesitate” before concluding that “the Judiciary is well suited, absent

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congressional action or instruction, to consider and weigh the costs and benefits of allowing

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[it]to proceed.” Id. at 1858. In light of the practical consequences, and the extensive

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congressional and administrative oversight of the Social Security program, “there are

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sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy

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as part of the system for enforcing the law and correcting [the] wrong[s alleged by

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Plaintiffs].” Id. Consequently, under Abbasi, the Court “must refrain from creating the

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remedy in order to respect the role of Congress in determining the nature and extent of

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federal-court jurisdiction under Article III.” Id.; see also id. at 1857 (“[A] Bivens remedy

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will not be available if there are ‘special factors counselling hesitation.’” (quoting Carlson,

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446 U.S. at 18 (1980)).

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The Court acknowledges that there are a number of factors that support granting a

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Bivens remedy here. Most importantly, this is a case where Plaintiffs are without any

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alternative monetary remedies. See id. at 1862 (stating that the existence of alternative

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remedies “is of central importance” to the special factors analysis). In Schweiker, plaintiffs

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sought money damages that were “proximately caused by [their] denial of benefits.” 487

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U.S. at 419.

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injuries caused by denials of benefits (retroactive restoration of benefits) and a procedure

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for obtaining that remedy. Id. at 425 (“Congress, however, has not failed to provide

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meaningful safeguards or remedies for the rights of persons situated as respondents

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were.”). On the other hand, Congress has not provided a remedy for injuries caused by

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interrogations executed by SSA agents. While the absence of alternative remedies weighs

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in favor of allowing Plaintiffs’ Bivens claims to proceed, it does not require that the Court

The Supreme Court concluded that Congress had provided a remedy for

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do so. See Abbasi, 137 S. Ct. at 1858 (stating that, if other available remedies “prove

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insufficient, a damages remedy might be necessary to redress past harm and deter future

3

violations.” (emphasis added)).

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Another factor that weighs in favor of allows Plaintiff’s Fourth Amendment claim

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for damages to proceed is the similarities between that claim and the one brought in Bivens

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itself. Both claims are brought under the Fourth Amendment and challenge searches and

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seizures executed by federal officers. (ECF No. 101 at ¶ 93); Bivens, 403 U.S. at 389.

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The Supreme Court in Abbasi clearly stated that its opinion “[wa]s not intended to

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cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure

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context in which it arose.” Abbasi, 137 S. Ct. at 1856. Abbasi reaffirmed the holding of

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Bivens itself and the availability of Bivens actions “in th[e] common and recurrent sphere

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of law enforcement.” Abbasi, 137 S. Ct. at 1857 (“The settled law of Bivens in this

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common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a

14

fixed principle in the law, are powerful reasons to retain it in that sphere.”). This Court

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does not interpret Abbasi as sanctioning all Bivens claims for allegedly unconstitutional

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searches and seizures in light of the discussion in Abbasi of the “context” in which Bivens

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case arises, see Section IV.A, supra, and the fact that the Supreme Court has previously

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rejected a Bivens claim for an allegedly unconstitutional search and seizure, see U.S. v.

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Verdugo-Urquidez, 494 U.S. 259 (1990). The allegations that the Searches were conducted

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by SSA agents in order to determine whether Plaintiffs were actually disabled and whether

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Plaintiffs’ attorney was in compliance with SSA regulations take Plaintiffs claims outside

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“th[e] common and recurrent sphere of law enforcement.” Id.

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The determinative feature of Plaintiffs’ case is that it involves the Social Security

24

program. This fact alone “cause[s the C]ourt to hesitate” before concluding that “the

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Judiciary is well suited, absent congressional action or instruction, to consider and weigh

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the costs and benefits of allowing [Plaintiffs’] damages action to proceed.” Id. at 1858.

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Consequently, there is a “special factor counselling hesitation” and Plaintiffs Bivens claims

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for damages must be dismissed. Id. at 1857 (quoting Carlson, 446 U.S. at 18 (1980)).
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V. Conclusion
IT IS HEREBY ORDERED THAT:

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1. Plaintiffs’ Motion for Reconsideration of the Berryhill Order is DENIED;

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2. Plaintiffs’ Motion for Reconsideration of the Villasenor and Sanchez Order is

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DENIED; and
3. Plaintiffs only remaining claims—their claims for damages against Defendants
Hagar, Tran, Pilcher, and Patel—are DISMISSED with prejudice.
4. The Clerk of the Court shall enter judgment for Defendants and against Plaintiffs.
Dated: January 3, 2018

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