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Brooks v. Commissioner of Social Security

United States District Court, N.D. New York

June 21, 2018

ROCHELLE BROOKS, formerly known as Rochelle Coleman, for F.B. Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Steven R. Dolson The Law Offices of Steven R. Dolson, PLLC, For Plaintiff.

          Grant C. Jaquith, United States Attorney Joshua L. Kershner, Special Assistant United States Attorney Social Security Administration Office of Regional General Counsel Region, For Defendant.

          ORDER APPOINTING GUARDIAN AD LITEM

          Hon. Brenda K. Sannes, United States District Judge.

         Rochelle 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).[1] 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, 2018).

         On May 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 custody. (Id.).

         On May 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).

         In 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)).

         Even assuming, as Plaintiffs counsel asserts, that Ms. Brooks has legal custody, [2] 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 action.

         Any 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.

         The 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.

         IT IS SO ORDERED.

         PRO BONO FUND VOUCHER AND ...


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