United States District Court, N.D. New York
ROCHELLE BROOKS, formerly known as Rochelle Coleman, for F.B. Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
R. Dolson The Law Offices of Steven R. Dolson, PLLC, For
C. Jaquith, United States Attorney Joshua L. Kershner,
Special Assistant United States Attorney Social Security
Administration Office of Regional General Counsel Region, For
ORDER APPOINTING GUARDIAN AD LITEM
Brenda K. Sannes, United States District Judge.
Brooks filed this action on behalf of her daughter F.B. under
42 U.S.C. § 405(g) seeking review of the Commissioner of
Social Security's denial of her application for
Supplemental Security Income Benefits for F.B. (Dkt. No. 1).
On November 9, 2016, the undersigned referred this matter to
United States Magistrate Judge Christian F. Hummel for an
inquiry and recommendation as to whether Ms. Brooks, “a
non-attorney parent who brings this action on behalf of her
child, ‘has a sufficient interest in the case and meets
basic standards of competence' to bring this action
‘without representation by an attorney.'”
(Dkt. No. 21) (quoting Machadio v. Apfel, 276 F.3d
103, 107 (2d Cir. 2002)). On January 23, 2017, Magistrate
Judge Hummel conducted a hearing and on April 19, 2017,
issued a Report-Recommendation, recommending that pro bono
counsel be appointed to represent F.B. in this matter. (Dkt.
No. 28). The Court adopted the Report-Recommendation in its
entirety and appointed counsel. (Dkt. Nos. 30, 31, 49, 50,
52). On April 17, 2018, Ms. Brooks filed a series of
documents, some of which indicated that she no longer had
physical custody of F.B. (Dkt. No. 58). At a telephone
conference on April 30, 2018, in connection with a pending
issue regarding the applicability of equitable tolling to the
Complaint, (see Dkt. No. 57), the attorney for the
Commissioner raised the issue of whether Ms. Brooks could
continue to serve as F.B.'s representative if she no
longer had custody. (See Text Minute Entry, Apr. 30,
8, 2018, the parties, including Ms. Brooks, appeared for an
evidentiary hearing on equitable tolling. (See Text
Minute Entry, May 8, 2018). The parties discussed the custody
issue and Commissioner requested that a guardian ad litem be
appointed for F.B., which Ms. Brooks opposed. (Id.).
The Court postponed the evidentiary hearing and directed
Plaintiff's counsel to file a status report regarding
15, 2018, Plaintiff's counsel filed a status report
indicating that although F.B. is presently in the protective
custody of the county, the family court had not terminated
Ms. Brooks' parental rights and she retained “legal
custody.” (Dkt. No. 60, at 1). Plaintiff's counsel,
acknowledging that he is the appointed attorney for F.B., and
that his ethical obligations are to her, stated that he
believes “that the appointment of a guardian ad litem
at this point in the litigation would not serve any useful
purpose.” (Dkt. No. 60, at 2). In a response, the
Commissioner requested that Ms. Brooks “be excised from
the case and a representative beholden solely to F.B. should
be appointed, a guardian ad litem-one without the
additional complications of simultaneously representing Ms.
Brooks, as Plaintiff, with possibly competing
interests.” (Dkt. No. 62, at 2).
general, parents have the authority to sue on behalf of their
children. Fed.R.Civ.P. 17(1)(1). However, federal courts
“have repeatedly affirmed a court's power to
determine that the interests of a child or incompetent will
be best represented by a ‘next friend' or guardian
ad litem and not by an authorized representative such as a
parent or general guardian.” Ad Hoc Comm.
of Concerned Teachers v. Greenburgh # 11 Union Free Sch.
Dist., 873 F.2d 25, 30 (2d Cir. 1989). Rule 17(c)(2) of
the Federal Rules of Civil Procedure states:
A minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a
guardian ad litem. The court must appoint a guardian ad
litem--or issue another appropriate order--to protect a minor
or incompetent person who is unrepresented in an action.
Fed. R. Civ. P. 17(c)(2). The Second Circuit has explained
that “Rule 17(c) has always been viewed as permissive
and not mandatory” and that “[i]t gives a federal
court power to authorize someone other than a lawful
representative to sue on behalf of an infant or incompetent
person where that representative is unable, unwilling or
refuses to act or has interests which conflict with those of
the infant or incompetent.” Greenburgh # 11 Union
Free Sch. Dist., 873 F.2d at 29-30 (citing 6 C. Wright
& A. Miller, Federal Practice and Procedure: Civil §
1570; 3A J. Moore & J. Lucas, Moore's Federal
Practice, ¶ 17.26 (2d Ed. 1987)).
assuming, as Plaintiffs counsel asserts, that Ms. Brooks has
legal custody,  it is evident from the family court order
and representations to the Court, that, at present, Ms.
Brooks' interests conflict with those of the minor
Plaintiff. (Dkt. No. 60-1). Thus, the Court concludes that
that the appointment of a guardian ad litem under
Fed.R.Civ.P. 17(c) to protect the interests of the subject
minor is warranted in this case. Accordingly, the Court
hereby appoints Suzanne Galbato, Esq., as pro bono guardian
ad litem for the subject minor during the pendency of this
request made by the pro bono guardian ad litem for
reimbursement of expenses upon the conclusion of this case
shall be made upon application to the Court pursuant to Local
Rule 83.3(g) on the attached form and filed on the
Court's electronic filing system.
Clerk of the Court is directed to modify the caption as
follows: F.B., a minor, by Suzanne Galbato, Esq. as guardian
ad litem, Plaintiff.
IS SO ORDERED.
BONO FUND VOUCHER AND ...