United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge.
Frank Amodeo, is in a “unique position.” Dkt. 19
at 1. On January 28, 2019, he filed this Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552a,
action through a purported “next friend, ”
Donovan Davis Jr., and shortly thereafter moved the court for
the appointment of counsel. See Dkt. 1; Minute Order
(May 1, 2019). As Amodeo explains (through Davis), the State
of Florida has declared him incompetent to initiate, defend,
or settle lawsuits, and, accordingly, has vested the
authority to initiate lawsuits on his behalf in a
state-appointed guardian, Mr. Charles Rahn. See
Minute Order (Aug. 23, 2019) (taking judicial notice of the
state records that reflect Amodeo's being declared
incompetent and Mr. Rahn's appointment); Minute Order
(Aug. 14, 2019). Rahn, however, is not an attorney, and thus,
although he may initiate law suits on Amodeo's behalf, he
must retain an attorney to appear before the Court in any
such case. See Cheung v. Youth Orchestra Foundation,
Inc., 906 F.2d 59, 61 (2d Cir. 1990) (observing that the
general rule in federal courts is that representative
parties, such as guardians, may not appear pro se).
The wrinkle is that Rahn claims that he “does not have
the money to retain counsel [to] prosecute this
action.” Dkt. 19 at 2. This claim, if true, creates a
dilemma: only Rahn can initiate a suit on behalf of Amodeo,
but Rahn cannot initiate suit on Amodeo's behalf because
he cannot afford an attorney.
background brings us to the instant matter. On August 23,
2019, after having repeatedly explained that Davis has not
made the showing required to obtain “next friend
standing, ” the Court ordered Amodeo to show cause
“why this action should not be dismissed on the ground
that it was not brought by Amodeo's legal guardian,
” Charles Rahn. Minute Order (Aug. 23, 2019); see
also Minute Order (May 3, 2019) (explaining that Davis
had not made an adequate showing for his invocation of next
friend status); Minute Order of (Aug. 14, 2019) (same). In
response, Amodeo filed material that includes a statement
from Rahn attesting that he “approve[s] of Mr.
Davis's filings” in this matter and that he
“join[s] Mr. Davis's request that [the Court]
appoint an attorney to assist Mr. Amodeo in pursuing this
case.” Dkt. 19 at 3. Although this filing provides
evidence that Rahn is aware of and approves of this action,
it does not resolve the question the Court asked Amodeo to
address: whether the case should be dismissed because it
was not brought by Amodeo's legal guardian.
Moreover, appointing Amodeo counsel, as he requests, does not
square with the fact that Amodeo has no capacity to sue and
that the authority resides only in his guardian, Rahn.
failure to address that question, however, need not result in
dismissal. Federal courts allow non-attorney guardians, such
as Rahn, to bring limited motions, such as motions requesting
the appointment of counsel, on behalf of incompetents they
represent. See Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61-62 (2nd Cir. 1990).
Consistent with that practice, the Court will construe
Rahn's statement as a motion for the Court to appoint
counsel for Rahn, so that he may act on Amodeo's behalf
in this action. Appointing counsel to Amodeo's guardian
would allow him, in consultation with counsel, to determine
the proper course of action for further proceedings,
including perhaps, the necessity of refiling the action so
that it is brought by Rahn rather than Davis.
D.C. Circuit has held that Local Civil Rule 83.11
“provides the relevant factors for deciding motions for
the appointment of counsel in FOIA cases.” Willis
v. FBI, 274 F.3d 531, 532, (D.C. Cir. 2001). Under Local
Civil Rule 83.11(b)(3), the Court must consider, among other
factors, the party's “inability . . . to retain
counsel by other means.” None of the filings in this
action, however, provide any specific information about
Rahn's financial status, such as his present salary, or
his ability (or inability) to “afford counsel through
alternative means, such as other sources of income, savings,
or by entering into a contingency arrangement.”
Mokhtar v. Kerry, 285 F.Supp.3d 56, 58 (D.D.C.
2014). The Court, of course, need not “insist that
[Rahn] be destitute” before appointing counsel.
Poindexter v. FBI, 737 F.2d 1173, 1186 (D.C. Cir.
1984). But, as the party seeking appointment of
counsel, he must provide “at least some evidence of
financial need.” Mokhtar, 285 F.Supp.3d at 58.
Rahn has provided none.
it is hereby ORDERED that Charles Rahn's
motion to appoint counsel is hereby DENIED
without prejudice. Rahn may, if appropriate, refile that
motion, along with evidence of his inability to retain
counsel and any other pertinent information, on or before
November 25, 2019. The Court will hold the case in abeyance
until that time. The Court of the Clerk is directed to mail a
copy of this order to Rahn at the address referenced in the
motion. See Dkt. 19 at 5 (listing Rahn's