     Case: 09-10863     Document: 00511169435          Page: 1    Date Filed: 07/12/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 12, 2010
                                     No. 09-10863
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT R. HENDERSON,

                                                   Petitioner-Appellant

v.

UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN SERVICES,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:79-CV-1384


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Robert Henderson filed a petition against the Department of Health and
Human Services (DHHS) in the district court seeking to recover benefits
allegedly due him as a result of the favorable adjudication of his 1988 application
for Social Security disability benefits. The district court denied Henderson relief
because it lacked jurisdiction over the matter. The district court also denied




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-10863

Henderson leave to proceed in forma pauperis (IFP) after certifying that the
appeal was not taken in good faith.
      Henderson now moves this court for leave to proceed IFP on appeal. By
doing so, Henderson is challenging the district court’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A movant seeking leave to proceed
IFP on appeal must show that he is a pauper and that the appeal presents
nonfrivolous issues. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Henderson arguably has shown that he is economically eligible to proceed IFP.
Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). Our inquiry
into whether an appeal is taken in good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citations omitted).
      A review of the record in this case reveals that Henderson filed
applications for Social Security disability benefits in 1978 and 1979 based on
pain in his right arm and shoulder and the amputation of two fingers on his
right hand as the result of a childhood accident.        DHHS determined that
Henderson was not entitled to disability benefits. Henderson unsuccessfully
sought judicial review in the underlying proceeding. The case concluded in 1981,
when the Supreme Court denied Henderson’s request for rehearing of the denial
of his petition for a writ of certiorari. See Henderson v. Schweiker, 450 U.S. 985,
reh’g denied, 451 U.S. 934 (1981).
      In 1988, Henderson filed a new application for Social Security disability
benefits alleging that he was disabled independently of his childhood injury.
Henderson was awarded benefits as a result of the 1988 application. He now
seeks relief, arguing that he has not been paid in accordance with the terms of
the benefit award. Henderson offers no authority for the proposition that he is
entitled to seek relief in the 1979 proceedings based on a determination in a



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                                No. 09-10863

separate administrative proceeding. Henderson’s allegations of bias are without
merit. See Liteky v. United States, 510 U.S. 540, 555 (1994).
      Henderson has not shown that his appeal will raise nonfrivolous issues
regarding the district court’s denial of his petition.    The instant appeal is
without arguable merit and is thus frivolous. Accordingly, Henderson’s IFP
motion is DENIED. See Howard, 707 F.2d at 219-20. His appeal is DISMISSED
as frivolous. See 5 TH C IR. R. 42.2; Baugh, 117 F.3d at 202 n.24.




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