9th Circuit Debates Reviving Hmong Exiles’ Suit Against US

SAN FRANCISCO (CN) – The Ninth Circuit appeared poised Tuesday to revive claims that the United States maliciously prosecuted former Hmong rebels suspected of plotting to overthrow the communist government of Laos.

Lead plaintiff Nhia Kao Vang  and five others sued the U.S. government and two agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives in 2012, claiming U.S. prosecutors falsely accused them of trying to buy and ship $10 million in weapons to Hmong rebels in the Laos jungle in 2007 as part of a plot to overthrow the Southeast Asian nation’s government.

Charged with conspiracy to violate the Neutrality Act and federal gun laws, the Hmong say they never intended to buy any weapons and that the CIA had previously called on them to help fight communists during the Vietnam War.

U.S. District Judge Morrison England Jr. of the Eastern District of California dismissed the malicious-prosecution suit in February 2016, after a U.S. attorney stated in a declaration that criminal charges were dropped in 2011 because “the costs of continuing outweighed any potential benefits, not because the Vang plaintiffs were innocent.”

The Hmong plaintiffs argue the judge merely accepted the U.S. government’s self-serving explanation and dismissed the case without letting them seek evidence to counter that narrative.

But the government says the judge had no choice but to dismiss the case because the Hmong plaintiffs failed to file a declaration disputing the U.S. attorney’s reason for dropping the charges.

In 2015, the Ninth Circuit reversed the dismissal of the plaintiffs’ malicious-prosecution claim and remanded it to Judge England. The appeals court ruled that the U.S. government failed to show the criminal charges were not dropped in a manner that indicates innocence, which is one required element for bringing a malicious prosecution claim under California law.

England dismissed the case again in 2016. And during oral arguments Tuesday before the Ninth Circuit, U.S. District Judge William Sessions III, sitting by designation from the District of Vermont, suggested England may have abused his discretion given that no motion for dismissal or summary judgment had been filed.

“So district courts can all of a sudden on their own initiative dismiss litigation that doesn’t fall within a motion to dismiss or motion for summary judgment,” Sessions said. “It’s somewhere in this hybrid world. District courts just have this hybrid power to say I’m just going to dismiss this case?”

Assistant U.S. Attorney Rebecca Falk argued it is within a federal judge’s power to ask pertinent questions, such as why criminal charges were dismissed, and to determine when the facts no longer support a claim of malicious prosecution.

“I think it’s appropriate to say the district court is empowered to manage its docket and make decisions that would encourage the efficient resolution of litigation,” Falk said.

Sessions asked if it is fair to say the plaintiffs didn’t realize that failing to respond to the government’s declaration would cause the case to be dismissed, especially since the plaintiffs filed requests for discovery and trial dates within weeks of the deadline for a response.

“No. They can’t say it’s not fair,” Falk replied. “To the extent a party simply chooses not to respond at all, to completely disregard an order, not even mention it in subsequent filings, to not object, to not take issue with what the other side filed, certainly a party could expect there might be some consequences.”

Falk contended there was nothing strange or irregular about England’s request for briefing on why criminal charges were dismissed and his subsequent ruling.

“The truth is this was a routine proceeding,” Falk said.

But Circuit Judge Richard Clifton disagreed.

“How routine could it be,” Clifton asked. “It’s on remand from this court to speak to this particular issue. I don’t recall being in a situation like this. I don’t know that many lawyers will have faced this situation.”

Representing the plaintiffs, attorney Herman Franck of Sacramento, California, compared his clients’ case to an employment dispute where the boss gives a stated reason as to why an employee was fired.

“It’s a pretext,” Franck said. “Are we going to accept what the U.S. attorney says? That’s it?”

Franck told the panel that over his long career of practicing law, he’s never seen anything like this – where a judge unilaterally transforms a request for briefing into a motion for dismissal or summary judgment.

“We’re just going to accept what one side says, and that’s the end of it,” Franck asked. “That’s where I think we have a proper appeal here.”

After 24 minutes of debate, the panel took the arguments under submission.

Circuit Judge Michelle Friedland joined Clifton and Sessions on the panel.

The lead plaintiff, Nhia Kao Vang, of West Sacramento, died of cancer last year, Franck noted. The attorney said he will likely seek permission to name Vang’s widow as a new plaintiff in his stead.

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