Jeffrey Liberto v. Commissioner Social Security ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3073
__________
JEFFREY MICHAEL LIBERTO
v.
COMMISSIONER SOCIAL SECURITY
Jeffrey Michael Liberto; Luisa Liberto,
Appellants
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-17-cv-01348)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2020
Before: SHWARTZ, RESTREPO and RENDELL, Circuit Judges
(Opinion filed: January 14, 2020)
___________
O P I N I O N*
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PER CURIAM
Jeffrey Liberto and his mother, Luisa Liberto, appeal from the District Court’s
judgment against him in his challenge to the Commissioner of Social Security’s denial of
his application for disability benefits. On review, it appears that the District Court
improperly permitted Luisa 1 to represent her adult son Jeffrey pro se and that Jeffrey may
not have knowingly and competently adopted her filings on his behalf. Thus, without
reaching the merits, we will vacate and remand for further proceedings.
I.
Jeffrey, through Luisa, applied for Social Security disability benefits in 2014 when
he was 17 years old. The Commissioner finally denied his application in 2017. Jeffrey,
then 20 years old, sought review of that ruling by filing the civil action at issue here.
Jeffrey’s complaint named both Jeffrey and Luisa (on behalf of Jeffrey) as plaintiffs.
Both Jeffrey and Luisa also filed motions for leave to proceed in forma pauperis, which a
Magistrate Judge granted.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
For simplicity, we hereafter refer to Jeffrey and Luisa Liberto by their first names
without intending any disrespect or undue familiarity. We also will refer to various
filings as having been submitted by Jeffrey, by Luisa, or by both, although it appears that
Luisa has prepared all relevant filings as discussed below.
2
In granting Luisa’s motion and screening the complaint, however, the Magistrate
Judge noted that Luisa could bring claims on Jeffrey’s behalf in this Social Security
action if he is a minor 2 but that Jeffrey’s age was not apparent from the complaint. (ECF
No. 5 at 8.) Thus, the Magistrate Judge directed Luisa to file an amended complaint
specifying Jeffrey’s age. (Id.) Luisa responded with a motion for appointment of
counsel. In that motion, Luisa acknowledged that Jeffrey is an adult and that she cannot
represent him. (ECF No. 7 at 3.) She claimed, however, that Jeffrey lacks “the
intellectual capacity to represent himself.” (ECF No. 7 at 3.)
Luisa nevertheless filed an amended complaint pro se. The amended complaint
named only Jeffrey as a plaintiff and bore only his signature, thus making Luisa a
nonparty. After the Commissioner answered, Luisa filed a “response” under Jeffrey’s
name. She continued to acknowledge that she “cannot represent” Jeffrey. (ECF No. 15
at 15.) She also asserted that, although “she is not an attorney” and does not “have any
legal training,” she has been “forced to act on behalf” of Jeffrey because, inter alia,
Jeffrey “is not able to intellectually represent himself.” (Id. at 26.)
Shortly thereafter, the Magistrate Judge denied Jeffrey’s motion for appointment
of counsel. The Magistrate Judge acknowledged Luisa’s assertions regarding Jeffrey’s
competence. The Magistrate Judge concluded, however, that the relevant filings bore
2
In support of that conclusion, the Magistrate Judge relied on our non-precedential
opinion in Price v. Barnhart, 129 F. App’x 699, 700 (3d Cir. 2005) (per curiam). As
discussed below, we have not addressed that issue in a precedential opinion and need not
do so in this case because Jeffrey is an adult.
3
Jeffrey’s signature and demonstrated the ability to present legal arguments, even if “he
may be receiving informal assistance from his mother.” (ECF No. 18 at 4.)
Luisa then clarified the nature of that assistance in a letter that she sent to both the
Magistrate Judge and the District Judge. In that letter, Luisa asserted that unspecified
court personnel advised her to take her own name “off the documents and to just have
Jeffrey sign the papers himself. . . . So, I took my name off and had Jeffrey sign the
documents, even though Jeffrey is incompetent to reason and to write all (or anything) I
have submitted.” (ECF No. 19 at 2-3.)
About two months later, and without further discussion of Jeffrey’s representation
or competence, the Magistrate Judge issued a thorough report recommending that the
District Court enter judgment in the Commissioner’s favor on the merits. The District
Court adopted that recommendation. Luisa then sent it a letter under her name claiming
not to have received the Magistrate Judge’s report. The District Court treated the letter as
a motion for reconsideration and gave Luisa and Jeffrey more time to file objections,
which they did. In their objections, and in a reply to the Commissioner’s response, they
continued to assert that Jeffrey “is incompetent to represent himself.” (ECF Nos. 25-3 at
1; 27 at 30.) The District Court, without addressing that issue, declined to reconsider its
ruling. Jeffrey and Luisa now appeal. 3
3
Both Jeffrey and Luisa signed the notice of appeal. Even though there is some question
whether the notice of appeal is valid as to Jeffrey as discussed below, and even though
Luisa’s signature does not perfect the appeal on behalf of her adult son, cf. Fed. R. App.
P. 3(c)(2), Luisa’s appeal from the District Court’s final order gives us jurisdiction under
28 U.S.C. § 1291. That is so regardless of whether Luisa has nonparty standing to seek
an appellate ruling on the merits. See United States v. Stoerr, 695 F.3d 271, 277 n.5 (3d
4
II.
As just discussed, appellants’ filings below suggested that Luisa prepared and
submitted them without Jeffrey’s involvement. On appeal, Luisa has made that point
explicit by asserting: “Because Appellants have not been able to obtain legal counsel or
have not been assigned legal counsel, mom [Luisa] has, from June 2014 until now,
written all Appellants’ motions, responses, appeals, etc., on behalf of [Jeffrey] as he is
incompetent to represent himself. He only signs as directed.” (Appellant’s Br. at 5.)
In response, the Commissioner argues that we should not reach the merits of this
appeal because Jeffrey is not proceeding either pro se or through counsel. We agree.
Rather than affirm on that basis, however, we will vacate and remand for further
proceedings. Cf. Gardner ex rel. Gardner v. Parson, 874 F.2d 131, 141 (3d Cir. 1989)
(reversing dismissal of incompetent plaintiff’s claims and explaining that, “[b]ecause
[she] was without a representative when the court dismissed her claims, and was
otherwise unprotected, the court was without authority to reach the merits of those
claims”).
Individuals may proceed in federal court either pro se or with legal representation,
but they may not be represented by non-lawyers, including non-lawyer parents. See
Murray ex rel. Purnell v. City of Phila., 901 F.3d 169, 170-71 (3d Cir. 2018) (citing, inter
Cir. 2012) (noting that “[t]he issues of jurisdiction under § 1291 and non-party appellate
rights are distinct”) (citation omitted). We need not decide whether Luisa has standing to
seek a ruling on the merits because we decline to reach the merits for a different reason.
See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(holding that federal courts may “choose among threshold grounds for denying audience
to a case on the merits”) (citation omitted).
5
alia, Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882 (3d Cir. 1991)). Some courts
have recognized an exception permitting parents to represent minor children in Social
Security cases for reasons related largely to the children’s status as minors. See, e.g.,
Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1300-01 (10th Cir. 2011) (citing, inter
alia, Machadio v. Apfel, 276 F.3d 103, 107-08 (2d Cir. 2002), and Harris ex rel. Harris v.
Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).
We have not addressed that issue in a precedential opinion. Cf. Price v. Barnhart,
129 F. App’x 699, 700 (3d Cir. 2005) (per curiam) (following Machadio and Harris in a
non-precedential opinion). We need not consider that issue in this case because Jeffrey
was an adult when he filed this civil action and because appellants do not argue that this
exception extends to adult children. Cf. Farina v. Comm’r of Soc. Sec., 670 F. App’x
756, 758 & n.5 (3d Cir. 2016) (per curiam) (concluding in a non-precedential opinion that
it does not). To the contrary, Luisa concedes that she cannot represent Jeffrey in this
proceeding. On this record, and subject to the caveat in note 6, below, we agree. 4
Ordinarily, Jeffrey’s signature on the relevant filings might have cured any defect
in this regard by signaling his adoption of those filings. In this case, however, Luisa—the
person who claims to have prepared those filings—repeatedly has asserted that Jeffrey
4
Luisa argues that, if we cannot reach the merits in light of her representation of Jeffrey,
we should appoint counsel on appeal. We decline to do so. Among other thing, and
although we express no opinion on the merits, it does not appear that the merits turn on a
discrete legal issue. Cf. Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 401 (4th Cir.
2005) (explaining that remand usually is required when a pro se parent has represented a
child below but reaching the merits where children were represented by counsel on
appeal and the appeal turned solely on a question of law).
6
does not understand them and is instead incompetent to represent himself. Given those
assertions, we cannot be confident that Jeffrey even knows or understands what has been
filed on his behalf. Thus, we cannot be confident that Jeffrey knowingly and competently
proceeded pro se below (or is knowingly and competently proceeding pro se on appeal).
The District Court did not address that issue in the first instance, and it is in the
best position to do so. See Powell v. Symons, 680 F.3d 301, 308 (3d Cir. 2012). In a
similar vein, we have held that Fed. R. Civ. P. 17(c)(2) requires District Courts to inquire
into a party’s competence when presented with “verifiable evidence of incompetence.”
Powell, 680 F.3d at 307. We express no opinion on whether anything of record rises to
that level. 5 We hold, however, that the District Court should inquire into whether Jeffrey
has knowingly and competently proceeded pro se in this case.
We leave it to the District Court to determine how to proceed on remand. Cf. id.
at 310 (noting that the evidence of record, or the District Court’s own experience with a
litigant, might obviate “the need for a full blown hearing”). At a minimum, however, the
District Court should inquire into whether Jeffrey knows and understands the substance
of his claims of disability and of his challenges to the denial of those claims. If the
District Court determines that Jeffrey knowingly and competently adopts Luisa’s filings,
5
Luisa appears to base her assertions that Jeffrey is incompetent at least in part on the
same medical reports on which she relies in arguing that Jeffrey suffers from qualifying
mental disabilities. The District Court already has affirmed the Commissioner’
conclusion to the contrary, but “mental disability and mental incompetence are not the
same thing.” Rapp v. Office of Pers. Mgmt., 483 F.3d 1339, 1341 (Fed. Cir. 2007).
Thus, the District Court’s assessment of the record for purposes of applying the
substantial evidence standard of review to the Commissioner’s denial of disability
benefits should not control its assessment of Jeffrey’s competence.
7
then nothing in this opinion would prevent the District Court from again adopting the
Magistrate Judge’s analysis (though we express no opinion on the merits of that analysis).
If the District Court determines that Jeffrey is incompetent to represent himself, by
contrast, then the District Court will have to consider other options, which might include
appointment of a guardian 6 or reconsideration of appointment of counsel under 28 U.S.C.
§ 1915(e)(1). We express no opinion on whether those steps or any other might be
warranted.
III.
For these reasons, and without expressing any opinion on the merits, we will vacate the
judgment of the District Court and remand for further proceedings.
6
Our review does not reveal any claim that Luisa is Jeffrey’s legal guardian, which we
would expect her to have mentioned if she is. If Luisa is Jeffrey’s legal guardian,
however, then she could proceed on his behalf under Fed. R. Civ. P. 17(a)(1) or (c)(1).
We express no opinion on whether she could do so pro se under the exception for minors
in Social Security cases that some courts have recognized as discussed above. The
District Court can consider that issue in the first instance if appropriate on remand.
8