(See id. ¶¶ 5-7). See also Bruce A. Green, Foreword, Rationing
Lawyers: Ethical and Professional Issues in the Delivery of Legal
Services to Low-Income Clients, 67 Fordham L.Rev. 1713, 1713
(1999) ("It is . . . commonly understood that the present level
of government and private funding for legal services for
low-income persons is woefully inadequate to meet the pressing
Third, plaintiffs' counsel suggest that the Court "rely on a
volunteer system" (Tr. at 31), but it is difficult for courts to
appoint counsel. While a court can order that counsel be
appointed, such an order does not mean that counsel will
necessarily be found. When a court orders that counsel be
appointed in a civil case in this district, the case is added to
a list of other cases in which counsel has been requested. The
Pro Se Office circulates this list and attempts to locate willing
attorneys. These efforts are not always successful, and the case
is usually delayed. of course, the Court would welcome greater
pro bono participation by the private bar. Experience teaches us,
however, that many of these cases will languish waiting for the
assignment of counsel.
There is a further difficulty with regard to finding counsel
that is a particular feature of SSI cases. Customarily, the
record of the proceedings before the SSA is filed in the district
court at the time of, and along with, the government's answer.
See 42 U.S.C. § 405 (g). In both Olavarria and Maldonado,
however, the government initially moved to dismiss in lieu of
answer, contending that the cases should be dismissed because
parents cannot represent their children. Thus, when the
government first made its motion, the Court had not yet received
a copy of the administrative record in either case.
Without a record, the merits cannot be evaluated. Private
counsel cannot be expected to become interested in a case of
unknown merit. And under Hodge v. Police Officers, 802 F.2d 58
(2d Cir. 1986), there is not even a proper basis for the Court to
appoint pro bono counsel because a court cannot determine whether
the case "seems likely to be of substance." Id. at 61.
At oral argument, the government advised us that it is changing
its policy and, in future cases, intends to file the
administrative record before filing motions. (Tr. at 7, 11-13,
18-20). We are not able to predict if this change is permanent,
nor if future circumstances will ease the present difficulties in
finding counsel for SSI cases. At present, in Olavarria and
Maldonado, we find that plaintiffs were not able to retain
counsel despite diligent effort, and it is unclear at this point
whether they will be able to obtain pro bono counsel to represent
them on the merits.
d. The Nature of the Claimed Benefit
Finally, children's SSI benefits are distinguishable from the
rights and benefits claimed in Cheung, Wenger, and Iannaccone.
The purpose of providing SSI benefits to minor children is to
provide benefits to children while they are children, thus
enabling them, as "among the most disadvantaged of all
Americans," to enter society as "self-supporting members."
H.R.Rep. No. 92-231 (1971), reprinted in 1972 U.S.C.C.A.N. 4989,
5133-34. The procedure for judicial review of adverse
determinations by the SSA must be interpreted consistently with
the congressional intent. Here, as we have described, the parents
have been unable to find representation for their children
despite diligent effort, and it is unclear whether the Court will
have more success than the parents. If the rule of Cheung,
Wenger, and Iannaccone were to be applied to these SSI cases,
long delays would be inevitable and the congressional purpose
with regard to SSI benefits would be frustrated. Accordingly,
Cheung, Wenger, and Iannaccone are distinguishable, for they are
at odds with the purpose of providing SSI benefits during
infancy, and they are inconsistent with the purpose of providing
review of adverse agency determinations.
In closing, we should remember that Ms. Maldonado applied for
benefits on behalf of Rogelio when he was six years old. Today,
he is eleven. It has taken him almost half his life to obtain
review in this Court of the decision denying him benefits, and
the process is not yet complete. The situation confronting Ms.
Olavarria and Shaun is no better. They applied for benefits when
Shaun was twelve. Today, he is nearly seventeen. For children
seeking to obtain SSI benefits while they are still children, the
extent of this delay, standing on its own, is tantamount to a
denial of benefits. The district courts in this circuit have been
reviewing SSI appeals brought by pro se parents on behalf of
their children for many years. The interests of justice require
that the courts be permitted to continue doing so.
For the reasons stated above, the government's arguments are
rejected. While plaintiffs may continue their efforts to seek
counsel to represent them on the merits, if they fail to obtain
counsel the complaints will not be dismissed and instead the
parents will be permitted to prosecute the appeals on behalf of
their children without the assistance of counsel.