Philippeaux v. Del Toro
- Vyskocil
- 1:24-cv-08732
- U.S. District Court · Southern District of New York
- 6
In Philippeaux v. Del Toro, Judge Vyskocil ordered service, treated an amended complaint as operative, and granted a request to seek volunteer counsel.
Eddy Philippeaux, the federal agencies and military-records boards named in the operative complaint, the U.S. Marshals Service, and any volunteer lawyer considering the case.
What happened
In Philippeaux v. Del Toro, Eddy Philippeaux, who is representing himself, sued federal agencies and military-records boards under the Administrative Procedure Act. He seeks review of a decision denying his application to correct his military records.
The court treated Philippeaux’s amended complaint at docket entry 35 as the operative complaint and granted his motion to strike the earlier amended complaint at docket entry 33. Because he is allowed to proceed without paying filing fees, the court directed the U.S. Marshals Service to serve the newly named defendants. The court also granted his request for the court to seek a volunteer lawyer, while explaining that counsel is not guaranteed.
Judge Mary Kay Vyskocil did not decide whether Philippeaux is entitled to correction of his military records. The court also denied fee-free status for any appeal from this order and directed the Clerk to terminate the motion at docket entry 34.
The detailed version
- Philippeaux v. Del Toro · No. 1:24-cv-08732
- Vyskocil
- Apr. 4, 2025
Background
Eddy Philippeaux, proceeding without a lawyer, brought this action under the Administrative Procedure Act seeking review of a decision by the Board of Correction of Naval Records denying his application to correct his military records. The court had previously allowed him to proceed without paying filing fees.
Philippeaux had filed several different supplemental complaints asserting varying claims against different defendants. The court directed him to file one complete amended complaint naming all defendants and stating all his claims. He filed an amended complaint at docket entry 33, moved to strike it, and then filed another amended complaint at docket entry 35. The court treated docket entry 35 as the operative complaint. It names the United States, the Department of Veterans Affairs, the United States Department of Defense, the Board for Correction of Naval Records, and the Air Force Board for Correction of Military Records.
Service of the Complaint
Because Philippeaux was allowed to proceed without prepaying fees, the court stated that he could rely on the U.S. Marshals Service to serve the complaint. The court directed the Clerk of Court to issue summonses and prepare service forms for the Department of Veterans Affairs, the United States Department of Defense, the Board for Correction of Naval Records, and the Air Force Board for Correction of Military Records. The Clerk was also directed to provide the Marshals Service with the documents needed for service.
The court stated that if service is not completed within 90 days after the summonses are issued, Philippeaux should request additional time. It also stated that he must notify the court in writing of any address change and that the action may be dismissed if he fails to do so.
Request for Volunteer Counsel
Philippeaux previously requested volunteer legal counsel, and the court had denied that request without prejudice. In this order, the court granted his application for the court to request pro bono counsel. The court found that he had shown he was unable to afford counsel and that, although the case was at an early stage, volunteer counsel could assist with investigating facts, presenting the case, addressing complex legal issues, and promoting efficient resolution.
The court explained that it cannot require a lawyer to represent a person in a civil case and that no public funds are available to retain counsel. A volunteer lawyer may contact Philippeaux directly, but there is no guarantee that a lawyer will accept the case. The court also stated that Philippeaux could continue without a lawyer if no volunteer agrees to represent him.
Disposition
Judge Mary Kay Vyskocil directed the Clerk to issue summonses and provide the necessary documents to the U.S. Marshals Service. The court granted Philippeaux’s motion to strike docket entry 33, designated docket entry 35 as the operative complaint, and granted his application for the court to request pro bono counsel. The Clerk was directed to terminate the motion pending at docket entry 34.
The court certified that any appeal from this order would not be taken in good faith and denied fee-free status for purposes of an appeal. The order did not decide the merits of Philippeaux’s request to correct his military records or his challenge to the Board’s decision.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.