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

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