Opinion

Lee v. Social Security Administration

Court
District Court, S.D. California
Filed
Sep 2, 2025
Cited by
0 cases
Authority
More cited than 39.1%

an adequate affidavit should state supporting facts “with some 13 particularity, definiteness and certainty”

How later courts described this case

  • an adequate affidavit should state supporting facts “with some 13 particularity, definiteness and certainty”
  • requiring that district courts evaluate indigency based 19 upon available facts and by exercise of their “sound discretion”
  • “The 21 granting or denial of leave to proceed [IFP] in civil cases is within the sound discretion of 22 the district court.”

Written by the judges who cited it.

The opinion

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 DANNY LEE, Case No.: 3:24-cv-01492-RBM-DDL

12 Petitioner,

ORDER

13 v.

(1) GRANTING PETITIONER’S

14 SOCIAL SECURITY

MOTION AND DECLARATION

ADMINISTRATION,

15 FOR LEAVE TO PROCEED IN

Respondent. FORMA PAUPERIS

16

17 (2) SETTING BRIEFING

SCHEDULE FOR PETITION FOR

18

REVIEW

19

[Doc. 2]

20

21

22 On April 22, 2024, Petitioner Danny Lee (“Petitioner”) filed a Petition for Review

23 of a final order of the Merit System Protection Board1 (the “Board”) with the United States

24 Court of Appeals for the Federal Circuit (“Federal Circuit”). (Doc. 1 at 9 [Petition for

25

26

27 1 “Congress created the Merit Systems Protection Board … to review certain serious

personnel actions against federal employees.” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420,

28

1 Review]; see also Doc. 1 at 10–26 [Final Order of the Merit Systems Protection Board].)

2 On August 21, 2024, the Federal Circuit transferred his Petition to this Court. (Doc.

3 1-2 at 62–63 [Transfer Order].) In the Transfer Order, the Federal Circuit explained that

4 “[f]ederal district courts, not this court, have jurisdiction over ‘cases of discrimination

5 subject to the provisions of 5 U.S.C. § 7702,’ 5 U.S.C. § 7703(b)(2), which involve an

6 allegation of an action appealable to the Board and an allegation that a basis for the action

7 was covered discrimination.” (Id. at 63 (citing Perry v. Merit Sys. Prot. Bd., 582 U.S. 420,

8 437 (2017))). The Federal Circuit then concluded that Petitioner “continues to pursue the

9 discrimination allegations he made before the Board, so jurisdiction to review the Board’s

10 decision lies in district court.” (Id.)

11 Included with the transfer is Petitioner’s Motion and Declaration for Leave to

12 Proceed In Forma Pauperis (“IFP Motion”) filed before the Federal Circuit. (Doc. 2.) In

13 his IFP Motion, Petitioner states that he is “unable to afford the filing fees and request[s]

14 they be waived.” (Id. at 1.) Petitioner notes that he is unemployed, has approximately

15 $1,500 per year in savings earning interest, receives approximately $1,864 per month in

16 disability, and receives approximately $170 per month in EBT food stamps. (Id. at 2.)

17 Petitioner also notes that he owns two cars: an inoperable 2004 BMW and a 1989 Cherokee

18 with 322,000 miles. (Id. at 3.) Petitioner then states that he has $2,320 in debts, financial

19 obligations, or expenses. (Id.) Finally, Petitioner states that he has $511.96 in cash,

20 checking accounts, or savings accounts. (Id. at 4.)

21 Before turning to the merits of the Petition for Review, the Court must first address

22 Petitioner’s IFP Motion. See e.g., Johnson v. Dep’t of Com., Civil Case No. 3:19-CV-611-

23 L-BK, 2020 WL 2616519, at *1 (N.D. Tex. Feb. 21, 2020), report and recommendation

24 adopted, 2020 WL 2615927 (N.D. Tex. May 22, 2020) (considering the petitioner’s IFP

25 motion upon transfer from the Federal Circuit). Along with determining whether Petitioner

26 is entitled to proceed IFP, the Court must also analyze the viability of the Petition for

27 Review under 28 U.S.C. § 1915(e). See e.g., Alford v. McGettigan, No. 7:20-CV-00202-

28 D, 2021 WL 1097335, at *2–3 (E.D.N.C. Feb. 23, 2021) (conducting screening required

1 by 28 U.S.C. § 1915(e) after granting the petitioner’s IFP motion), report and

2 recommendation adopted, 2021 WL 1095309 (E.D.N.C. Mar. 22, 2021); Munoz v.

3 McDonough, Case No.: 2:21-cv-00430-APG-EJY, 2021 WL 9220191, at *2–3 (D. Nev.

4 June 28, 2021) (same), report and recommendation adopted, 2021 WL 9220184 (D. Nev.

5 July 23, 2021). The Court addresses each issue in turn.

6 I. IFP MOTION

7 An applicant need not be completely destitute to proceed IFP, but he must adequately

8 prove his indigence. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40

9 (1948). An adequate affidavit should “allege[] that the affiant cannot pay the court costs

10 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

11 Cir. 2015) (citing Adkins, 335 U.S. at 339); see also United States v. McQuade, 647 F.2d

12 938, 940 (9th Cir. 1981) (an adequate affidavit should state supporting facts “with some

13 particularity, definiteness and certainty”) (citation omitted). No exact formula is “set forth

14 by statute, regulation, or case law to determine when someone is poor enough to earn IFP

15 status.” Escobedo, 787 F.3d at 1235. Consequently, courts must evaluate IFP requests on

16 a case-by-case basis. See id. at 1235–36 (declining to implement a general benchmark of

17 “twenty percent of monthly household income”); see also Cal. Men’s Colony v. Rowland,

18 939 F.2d 854, 858 (9th Cir. 1991) (requiring that district courts evaluate indigency based

19 upon available facts and by exercise of their “sound discretion”), rev’d on other grounds,

20 506 U.S. 194 (1993); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (“The

21 granting or denial of leave to proceed [IFP] in civil cases is within the sound discretion of

22 the district court.”).

23 Here, Petitioner’s monthly expenses ($2,320) appear to exceed his monthly income

24 ($2,034). In its “sound discretion,” see Cal. Men’s Colony, 939 F.2d at 858, the Court

25 finds that Petitioner “cannot pay the court costs and still afford the necessities of life[,]”

26 Escobedo, 787 F.3d at 1234 (citing Adkins, 335 U.S. at 339). Accordingly, Petitioner’s

27 IFP Motion is GRANTED.

28

1 II. 28 U.S.C. § 1915(e) SCREENING

2 Typically, the district court “must dismiss any portion of the complaint it determines

3 is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks

4 monetary relief from a defendant who is immune from such relief.” Alford, 2021 WL

5 1097335, at *2 (citing 28 U.S.C. § 1915(e)(2)(B)). “A court may also consider whether it

6 has subject-matter jurisdiction over a complaint as part of the frivolity review.” Id.

7 (citation omitted).

8 The application 28 U.S.C. § 1915(e)’s screening requirements to Petitions for

9 Review of final orders of the Board is infrequent and imperfect as Petitions for Review are

10 not always accompanied by a motion to proceed IFP and there is often no Petitioner-drafted

11 complaint to screen. (See Doc. 1 at 9 [Petition for Review].) See also Munoz, 2021 WL

12 9220191, at *2 (“Plaintiff’s initial filing is construed as a Complaint … .”); but see Harris

13 v. Dep’t. of Health & Hum. Servs., No. GJH-21-558, 2021 WL 5920645, at *2 (D. Md.

14 Dec. 15, 2021) (granting IFP motion after petition for review was transferred to the District

15 Court from the Federal Circuit but failing to screen the complaint under 28 U.S.C. §

16 1915(e)). Nonetheless, the Court has preliminarily reviewed the Petition for Review and

17 finds that it is not subject to dismissal after screening. The Federal Circuit already

18 determined that “jurisdiction to review the Board’s decision lies in district court.” (Doc.

19 1-2 at 63.) Accordingly, the Court will proceed to the merits of Petitioner’s Petition for

20 Review.

21 In light of this ruling, the Court ORDERS Respondent to file a response to the

22 Petition for Review on or before October 23, 2025. See ORDER, Jordan v. Department

23 of the Army, Case No. 1:19-cv-349(LMB/IDD) (E.D. Va. April 8, 2019) (“[I]t is hereby

24 ORDERED that respondent file a response to [the] petition … .”). Petitioner may file a

25 reply brief not to exceed 10 pages on or before November 6, 2025.

26 The Court also ORDERS the Clerk of the Court to send copies of this Order to (1)

27 Petitioner, (2) Respondent’s counsel of record, and (3) Delisa Sanchez, Trial Attorney,

28 United States Department of Justice, Commercial Litigation Branch, Civil Division, PO

1 || Box 480, Ben Franklin Station, Washington, DC 20044. (See Doc. | at 2 (naming Ms.

2 Sanchez as counsel for Respondent for all proceedings before the Federal Circuit).)

3 IT IS SO ORDERED.

4 ||DATE: September 2, 2025

Get smu, Nittany

6 HON. RUTH BERMUDEZ'MONTENEGRO

UNITED STATES DISTRICT JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.