Danny Lee v. Social Security Administration

[5] 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA [8] 9 DANNY LEE, Case No.: 3:24-cv-01492-RBM-DDL 10 Petitioner, ORDER 11 v. (1) GRANTING PETITIONER’S 12 SOCIAL SECURITY MOTION FOR LEAVE TO ADMINISTRATION, 13 ELECTRONICALLY FILE Respondent. DOCUMENTS [Doc. 5] [14] 15 (2) GRANTING IN PART AND DENYING IN PART [16] RESPONDENT’S MOTION TO 17 VACATE BRIEFING SCHEDULE [Doc. 4] [19] 20 Pending before the Court are pro se Petitioner Danny Lee’s (“Petitioner”) Motion 21 for Leave to Electronically File Documents (“E-File Motion”) (Doc. 5 at 1); Respondent 22 Social Security Administration’s (“Respondent”) Notice and Objection as to Failure of 23 Service and Request to Vacate Order Setting Briefing Schedule (construed as a “Motion to 24 Vacate Briefing Schedule”) (Doc. 4); and Petitioner’s Objection to Failure of Service 25 Request to Combine Other Filings (“Response to Motion to Vacate Briefing Schedule”) 26 (Doc. 5 at 2–60.) For the reasons set forth below, Petitioner’s E-File Motion is GRANTED 27 and Respondent’s Motion to Vacate Briefing Schedule is GRANTED IN PART AND 28 DENIED IN PART. 1 I. BACKGROUND 2 On April 22, 2024, Petitioner filed a Petition for Review of a final order of the Merit 3 System Protection Board1 (the “Board”) with the United States Court of Appeals for the 4 Federal Circuit (“Federal Circuit”). (Doc. 1 at 9 [Petition for Review]; see also Doc. 1 at 5 10–26 [Final Order of the Merit Systems Protection Board].) 6 On August 21, 2024, the Federal Circuit transferred his Petition to this Court. 7 (Doc. 1-2 at 62–63 [“Transfer Order”].) Included with the transfer was Petitioner’s Motion 8 and Declaration for Leave to Proceed in Forma Pauperis (“IFP Motion”) filed before the 9 Federal Circuit. (Doc. 2.) On September 2, 2025, this Court granted the IFP Motion, 10 screened the Petition pursuant to 28 U.S.C. § 1915 (e), and found it was not subject to 11 dismissal after screening. (Doc. 3.) The Court also ordered Respondent to file a response 12 to the Petition on or before October 23, 2025, and authorized Petitioner to file a reply brief 13 not to exceed 10 pages on or before November 6, 2025. (Id. at 1–5.) 14 II. PETITIONER’S E-FILE MOTION 15 In his E-File Motion, Petitioner asks “the Court for permission to participate in 16 electronic filing (“e-filing”) in this case.” (Doc. 5 at 1.) Petitioner represents that he has 17 reviewed the rules and policies included in the Court’s Electronic Case Filing 18 Administrative Policies and Procedures Manual. (Id.) He also represents that he has access 19 to a computer and the internet and will register as a user with the Clerk’s Office and as a 20 subscriber to PACER. (Id.) Petitioner consents to electronic service at 21 dannydlee@yahoo.com and understands that “if [his] use of the Court’s e-filing system is 22 unsatisfactory, [his] e-filing privileges for this case may be revoked.” (Id.) 23 “Unless otherwise authorized by the [C]ourt, all documents submitted for filing to 24 the Clerk’s Office by parties appearing without an attorney must be in legible, paper form.” [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 CM/ECF Manual, § 2(b) (S.D. Cal. Jan. 22, 2025). “A pro se party seeking leave to 2 electronically file documents must file a motion and demonstrate the means to do so 3 properly by stating their equipment and software capabilities in addition to agreeing to 4 follow all rules and policies in the [CM/ECF Manual].” (Id.) Petitioner has met these 5 requirements. Accordingly, Petitioner’s E-File Motion (Doc. 5 at 1) is GRANTED. 6 III. RESPONDENT’S MOTION TO VACATE BRIEFING SCHEDULE 7 A. Service 8 Respondent “requests that the Court vacate its Order Setting Briefing Schedule 9 which directs [Petitioner] to file a response by October 23, 2025.” (Doc. 4 at 2.) 10 Respondent argues that the response deadline should be vacated because Petitioner “has 11 failed to perfect service and the time for [Respondent] to respond has not yet begun.” 12 (Id. at 3.) 13 As Respondent notes, Federal Rule of Civil Procedure (“Rule”) 4(i): 14 sets out specific requirements that a plaintiff must fulfill when serving a federal employee or federal agency with a lawsuit. The rule requires that a [15] plaintiff serve the United States, and also send a copy of the summons and 16 complaint by registered or certified mail to the relevant agency. In order to serve the United States, a plaintiff must deliver a copy of the summons and [17] complaint to the U.S. Attorney for the district where the action is brought, and 18 send a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States at Washington, D.C. [19] 20 (Id. at 2) (citing Fed. R. Civ. P. 4(i)(1)–(2).) 21 Here, the Court previously ordered (Doc. 3 at 4–5) the Clerk of Court to send copies 22 of its previous Order to: (1) Petitioner; (2) Respondent’s counsel of record; and (3) Delisa 23 Sanchez, Trial Attorney, United States Department of Justice, Commercial Litigation 24 Branch, Civil Division, PO Box 480, Ben Franklin Station, Washington, DC 20044. 25 However, Respondent is correct that they have not been properly served pursuant to the 26 requirements of Rule 4(i). See also Kennedy v. Phillips, No. C11-1231 MJP, 2012 WL 27 261612, at *4 (W.D. Wash. Jan. 30, 2012) (noting transfer of a case is appropriate under [28] 28 U.S.C. § 1631 if the “defendant [is] subject to personal jurisdiction and [is] amenable 1 to service of process in that district”) (emphasis added) (citing Shapiro v. Bonanza Hotel 2 Co., 185 F.2d 777, 780 (9th Cir. 1950)). 3 As Petitioner notes in his Response to Motion to Vacate Briefing Schedule, 4 Rule 4(i)(4) requires the Court to “allow a party a reasonable time to cure its failure to 5 (A) serve a person required to be served under Rule 4(i)(2).” (Doc. 5 at 3–4) (citing Fed. 6 R. Civ. P. 4(i)(4).) Accordingly, the Court ORDERS Petitioner to effect service of the 7 summons (Doc. 6) and Petition (Doc. 1) on Respondent in line with the procedures 8 described below and pursuant to the requirements of Rule 4(i) on or before 9 November 21, 2025. 10 B. Stay 11 Pursuant to General Order 766, “[t]o preserve the status quo until restoration of 12 funding, all civil cases within the Southern District of California, except for civil 13 immigration habeas corpus petitions under 28 U.S.C. § 2241 , wherein the United States or 14 an agency . . . of the United States is a party are stayed.” In the Matter of the Federal Lapse 15 in Appropriations, Case No. 25-mc-1937, ECF No. 2 ¶ 7 (S.D. Cal. Oct. 7, 2025)2. The 16 General Order “does not prohibit, in any manner, the ability of parties to file claims or 17 commence actions against the United States. However, . . . deadlines, response dates, due 18 dates or cut-off dates in such cases [shall] be extended for a period commensurate with the 19 lapse in appropriations.” (Id. ¶ 10.) 20 Because this case has been stayed pursuant to General Order 766, the 21 October 23, 2025 response deadline and the November 6, 2025 reply deadline are 22 CONTINUED until “the lapse in appropriations has ended and funding has been restored.” 23 (Id. ¶ 8.) “The United States Attorney’s Office shall notify the Court when Congress 24 restores appropriations to the Department of Justice.” (Id. ¶ 11.) After that happens, the 25 Court will reset the response and reply deadlines. The Motion to Vacate Briefing Schedule [27] 2 The General Order is available on the Court’s website at [28] 1 is therefore GRANTED IN PART AND DENIED IN PART. Respondent’s request to 2 vacate the briefing schedule is DENIED. However, due to the stay pursuant to General 3 Order 766, the response and reply deadlines are CONTINUED until after the stay is lifted. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court ORDERS: 6 1. Petitioner’s E-File Motion (Doc. 5) is GRANTED. 7 2. Respondent’s Motion to Vacate Briefing Schedule (Doc. 4) is GRANTED IN 8 PART AND DENIED IN PART. Petitioner shall serve the summons and Petition 9 on Respondent on or before November 21, 2025. 10 3. The Court will reset the response and reply deadlines after the stay pursuant to 11 General Order 766 is lifted. 12 4. So that Petitioner may effect service upon (1) the U.S. Attorney for the Southern 13 District of California; (2) the Attorney General of the United States; and (3) the 14 Social Security Administration, the Clerk’s Office is DIRECTED to send to 15 Petitioner three blank U.S. Marshal Forms 285. The Clerk’s Office will also provide 16 Petitioner with three certified copies of this Order, three certified copies of his 17 Petition, and three copies of the summons so that he may serve Respondent pursuant 18 to Rule 4(i). Upon receipt of this “IFP Package,” Petitioner must complete the U.S. 19 Marshal Forms 285 as completely and accurately as possible and return them to the 20 U.S. Marshal according to the instructions the Clerk’s Office provides. 21 5. The U.S. Marshal SHALL SERVE a copy of the Petition (Doc. 1) and summons 22 (Doc. 6) upon the three individuals above at the addresses provided by Petitioner on 23 the U.S. Marshal Forms 285, and file an executed waiver of personal service upon 24 Respondent Social Security Administration with the Clerk of Court as soon as 25 possible after its return. Should Respondent fail to return the U.S. Marshal’s request 26 for waiver of personal service within 90 days, the U.S. Marshal must instead file the 27 completed Form USM 285 Process Receipt and Return with the Clerk of Court, 28 include the date the summons, Petition, and request for waiver was mailed to l Respondent, and indicate why service remains unexecuted. All costs of service will 2 be advanced by the United States; however, if Respondent is located within the 3 United States, and fails without good cause to sign and return the waiver requested 4 by the Marshal on Petitioner’s behalf, the Court will impose upon Respondent any 5 expenses later incurred in making personal service. See 28 U.S.C. § 1915 (d); Fed. 6 R. Civ. P. 4(c)(3). 7 6. Respondent, once served, SHALL REPLY to the Petition within the time provided 8 by the applicable provisions of Federal Rule of Civil Procedure 12(a). 9 7. Petitioner, after service has been effected by the U.S. Marshal, SHALL SERVE 10 upon Respondent, or if appearance has been entered by counsel, upon Respondent’s 11 counsel, a copy of every further pleading, motion, or other document submitted for 12 the Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b). 13 Petitioner must include with every original document he seeks to file with the Clerk 14 of the Court a certificate stating the manner in which a true and correct copy of that 15 document was served on Respondent or its counsel, and the date of that service. See 16 S.D. Cal. Civ. R. 5.2. Any document received by the Court which has not been 17 properly filed with the Clerk or which fails to include a Certificate of Service upon 18 Respondent or its counsel may be disregarded. 19 IT IS SO ORDERED. 20 }|DATE: October 28, 2025 9 HON. RUTH BERMUDEZ'MONTENEGRO UNITED STATES DISTRICT JUDGE