Wednesday, August 20, 2008

False Claims Act cases cannot be handled pro se

False Claims Act cases are filed when someone thinks the United States is being defrauded. You sue on behalf of the U.S., technically representing the interests of the government. The question is whether a pro se litigant can do this? The answer is no.

The case is United States v. Flaherty, decided on August 19, the same day the Second Circuit dismissed another False Claims case because of an untimely notice of appeal.

The Court reminds us in a footnote that "The False Claims Act imposes civil liability upon 'any person' who . . . 'knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.' A suit brought under the Act may be commenced by either the federal government or by a private person, or “relator,” who sues for the United States in a qui tam action." The plaintiff in a suit like this can keep some of the proceeds if the defendant is found to have defrauded the government.

The Court of Appeals has never squarely addressed the issue raised in this case. But it alluded to it many years ago, stating, "Although the False Claims Act does not specifically address whether private parties may bring qui tam actions pro se, . . . we have previously suggested that they cannot, albeit in dicta. See, Safir v. Blackwell, 579 F.2d 742, 745 n.4 (2d Cir. 1978) (positing that “a litigant cannot prosecute a qui tam action under [the Act] pro se”). Nevertheless, the proposition is a sound one." (Emphasis supplied).

In Flaherty the Second Circuit confirms what it hinted at in 1978. You need a lawyer to bring a False Claims (qui tam) action. The reason for this is that the plaintiff is representing the interests of the U.S. government. The case is not unique to the plaintiff, who can normally represent himself in such cases. Just as a layman cannot represent a corporation, he cannot represent the interests of the U.S. government in a False Claim suit, as the government remains a "real party in interest" even though the plaintiff may recover 30 percent of the proceeds for bringing the case. The court summarizes, "In short, while the False Claims Act permits relators to control the False Claims Act litigation, the claim itself belongs to the United States." Accordingly, "Because relators lack a personal interest in False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se."

The Court of Appeals follows the lead of the other appellate courts in reaching this conclusion, but it also notes a concern that the Federal government should not be bound by court rulings handled by non-lawyers.

1 comment:

John Timson said...

The question of Pro Se in an FCA has been appealed to the U.S. Supreme Court in Timson v Sampson 518 F 3d 870. 31 USC 3739 (h) allows one to proceed pro se. Copy of Writ on request. Respectfully John Timson Pro Se john_stimson@yahoo.com