Qui Tam Relators Must Be Represented By Counsel

In three 2019 decisions, federal district courts have reiterated the established rule that whistleblowers cannot prosecute a False Claims Act (“FCA”) suit unless they are represented by counsel.  Tavares v. Rhode Island Super. Ct., 2019 WL 2269225, at *2 (D.R.I. May 28, 2019); McGhee v. Light, 2019 WL 2122893, at *2 (S.D. Ohio May 15, 2019); Bowens v. Correctional Assn. of New York, 2019 WL 1586857, at *5 (E.D.N.Y. Apr. 12, 2019). Although the FCA permits whistleblowers – known as relators – to file a case and even prosecute a suit if the Government decides not to join in the case, 31 U.S.C. § 3730, the relator cannot proceed pro se, or representing herself without counsel.

Previous Pro Se Opinions

Earlier opinions had sometimes cited the need for the Government to have effective representation when an individual is acting on its behalf. In United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10 (D.D.C.2003), for example, the court noted that “[t]he need for adequate legal representation on behalf of the United States is obviously essential.” Id. at 12. Other courts echoed that concern. E.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (need safeguards to ensure adequate legal representation for the Government’s interests, particularly since the United States would be bound by any judgment in future proceedings).

Even more fundamentally, though, the courts have determined that there is no statutory basis in federal law that allows a non-attorney to represent the interests of another party. Timson, 518 F.3d at 875. The statutory pro se provision set forth in federal statutes provides that “[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel….”  28 U.S.C. § 1654. Notably, this right dates back to the Judiciary Act of 1789, § 35, 1 Stat. 73, 92 (1789), which provided that “in all the courts of the United States, the parties may plead and manage their own causes personally …”

The critical statutory language of § 1654 is “conduct their own cases.” This provision allows relators to prosecute their own actions in propria persona, or pro se, but that right is personal to them. Absent some other statutory authorization, the qui tam relator has no authority to prosecute an action in federal court on behalf of the Government. See generally C.E. Pope Equity Trust, 818 F.2d 696, 697 (9^th Cir. 1987).

In a wide variety of contexts, courts have made clear that the United States is always the “party of interest” in any FCA case, supporting the conclusion that a relator is acting on behalf of the Government. E.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768, 120 S.Ct. 1858, 146 L.Ed.2d 836 (U.S. 1988) (qui tam provisions satisfy Constitutional standards under Article III by effecting a partial assignment of the government’s damages claim to the relator); United States v. Schimmels (In re Schimmels), 127 F.3d 875, 882 (9th Cir.1997)(government bound by the relator’s actions for purposes of res judicata and collateral estoppel); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir.1993) (“The express language of the FCA gives relators the right to bring suit on behalf of the government.”). See also 31 U.S.C. § 3730(c)(5) (providing that “the Government may elect to pursue its claim through any alternate remedy”) (emphasis added).

Relators Attempting Pro Se Representation

Relators attempting to proceed pro se have argued that the FCA itself does not prohibit them from proceeding in that fashion and, arguably, the Act provides support for allowing such conduct. Certainly, the plain language of the FCA does not limit qui tam actions to individuals who employ counsel. The FCA simply states that “a private individual, otherwise known as a relator, may bring a civil action in the name of the United States to enforce this provision of the FCA and may share a percentage of any recovery resulting from the suit.” See 31 U.S.C. § 3730(b)(1), (c)(3). However, a relator in an FCA case cannot proceed pro se because “the relator represents the interests of the United States, but a lay person cannot represent another party in court.”  In re Syntax-Brillian Corporation, 554 B.R. 323, 328, 2016 WL 3921265 (D. Del. Bkr. July 13, 2016).

While the FCA gives a relator the “right to conduct the action,” 31 U.S.C. § 3730(c)(3), there is no language enabling a relator to conduct the action without an attorney. Courts have determined that “[g]iven the fact that Congress did not expressly authorize a qui tam relator to proceed pro se when acting on behalf of the United States, it ‘must have had in mind that such a suit would be carried on in accordance with the established procedure which requires that only one licensed to practice law may conduct proceedings in court for anyone other than himself.’ ” Stoner v. Santa Clara County Off. of Educ., 502 F.3d 1116, 1126–27 (9th Cir. 2007). “Thus, a private party seeking to litigate FCA claims is not entitled to proceed pro se because that party is not litigating his or her own interest, but rather, the interest of the government.” Bowens, 2019 WL 1586857 at *5, citing United States ex rel. Mergent Services v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008); McGhee v. Light, 2019 WL 2122893, at *2 (S.D. Ohio May 15, 2019) (“this Court lacks subject matter jurisdiction to hear a qui tam action brought on behalf of the United States by a pro se litigant”).

Although two of the three 2019 cases prohibiting pro se representation involved prisoners seeking to bring FCA claims, Tavares, 2019 WL 2269225, at *2; Bowens, 2019 WL 1586857, at *5, earlier cases had barred even attorneys who were seeking to represent themselves without having satisfied the court requirements for proceeding as attorneys in that court.  E.g., Stoner, 502 F.3d at 1126–27. The requirement of representation by counsel in an FCA case thus appears to be strictly enforced.

Conclusion

As readers of this blog have been cautioned before, there are many pitfalls and procedural hurdles that exist in the qui tam world.  The three highlighted cases holding that you must have counsel to represent you restate a fundamental starting requirement from the perspective of the Government and the courts.  But having experienced counsel to navigate through the complexities of an FCA case is also critically important throughout the litigation for the relator’s own protection and best chance of success.

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