Although it is generally the case in federal court that a party
can proceed pro se, that is, without counsel, courts have been
fairly unanimous in holding that a private person cannot bring a
qui tam case on behalf of the United States without being
represented by counsel. See United States ex rel. Mergent
Servs. v. Flaherty, 540 F.3d 89 (2d Cir. 2008); Timson v. Sampson,
518 F.3d 870, 873-74 (11th Cir. 2008) (per curiam); Stoner v. Santa
Clara County Office of Educ., 502 F.3d 1116, 1126-28 (9th Cir.
2007); United States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th
Cir. 2004); United States v. Onan, 190 F.2d 1, 6-7 (8th Cir. 1951).
It appears that there are both statutory and public policy
reasons for these rulings.
First, although the False Claims Act does not specifically
address whether private parties may bring qui tam actions pro se,
see 31 U.S.C. §§ 3729-33, the circumstances under which civil
litigants may appear without counsel are limited by statute.
Pursuant to 28 U.S.C. § 1654, "parties may plead and
conduct their own cases personally or by counsel as, by the rules
of such courts, respectively, are permitted to manage and conduct
causes therein." While not specific to the False Claims Act,
the statutory right of a private person to proceed in federal court
without an attorney is limited to conduct of "their own cases."
It is clear that "an individual who is not licensed as an
attorney 'may not appear on another person's behalf in the other's
cause.'" Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir. 2002).
This concept has been applied in a variety of contexts, for
example, in determining that a layperson cannot represent a
corporation even if the layperson is the sole shareholder of the
corporation. See National Independent Theatre Exhibitors,
Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 609 (11th Cir.
1984); Cheung v. Youth Orchestra Foundation, Inc., 906 F.2d 59, 61
(2d Cir. 1990) (noting in dicta that "[s]ole shareholders of
corporations are not allowed to represent such corporations pro
se"). A non-lawyer general partner may not represent the
partnership, see Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305,
1310 (2d Cir. 1991), and a sole member of a solely-owned limited
liability company may not represent it, see Lattanzio v. COMTA, 481
F.3d 137, 140 (2d Cir. 2007) (per curiam). Courts have also
held that a layman may not appear pro se on behalf of his minor
child, see Cheung, 906 F.2d at 61. Cf. Winkelman v. Parma
City Sch. Dist., 550 U.S. 516, 127 S. Ct. 1994 (2007) (permitting
parents to bring suit pro se under the IDEA because parents have
rights under the IDEA distinct from those afforded their
As the Court of Appeals for the Second Circuit has explained,
there are practical and policy reasons for limiting the appearance
of laypersons in the federal courts: "the conduct of
litigation by a nonlawyer creates unusual burdens not only for the
party he represents but as well for his adversaries and the court.
The lay litigant frequently brings pleadings that are
awkwardly drafted, motions that are inarticulately presented,
proceedings that are needlessly multiplicative. In
addition to lacking the professional skills of a lawyer, the lay
litigant lacks many of the attorney's ethical responsibilities,
e.g., to avoid litigating unfounded or vexatious claims."
Jones v. Niagara Frontier Transp. Authority, 722 F.2d 20 at
22 (2d Cir. 1983).
In the False Claims Act context, there is the relatively unusual
provision of the right of a private party to institute suit on
behalf of the federal government. Clearly, however, "All of
the acts that make a person liable under [the False Claims Act]
focus on the use of fraud to secure payment from the government.
It is the government that has been injured by the
presentation of such claims; it is in the government's name that
the action must be brought; it is the government's injury that
provides the measure for the damages that are to be trebled; and it
is the government that must receive the lion's share -- at least
70% -- of any recovery." United States ex rel. Stevens v.
Vermont Agency of Natural Resources, 162 F.3d 195, 202 (2d Cir.
1998), rev'd on other grounds, 529 U.S. 765, 120 S. Ct. 1858, 146
L. Ed. 2d 836 (2000). While clearly recognizing that the qui
tam relator has an interest in the litigation, the Supreme Court
observed that the injury, and therefore, the right to bring the
claim belongs to the United States. See Vt. Agency of Natural
Res. v. United States ex rel. Stevens, 529 U.S. 765, 774-75, 120 S.
Ct. 1858, 146 L. Ed. 2d 836 (2000). The FCA itself makes
clear that notwithstanding the relator's statutory right to a share
of the government's recovery, the underlying claim of fraud always
belongs to the government. See, e.g., 31 U.S.C. § 3730(c)(5)
(providing that the Government may elect to pursue "its claim"
through any alternate remedy.) Accordingly, where the
government chooses not to intervene, a relator bringing a qui tam
action for a violation of § 3729 is representing the interests of
the government and prosecuting the action on its behalf. See
generally United States v. Schimmels (In re Schimmels), 127 F.3d
875, 882 (9th Cir. 1997) ("[T]he 'United States is the real party
in interest in any False Claims Act suit, even when it permits a
qui tam relator to pursue the action on its behalf.'"); Kelly, 9
F.3d at 743 ("The express language of the FCA gives relators the
right to bring suit on behalf of the government."); Stoner v. Santa
Clara County Office of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007).
In the complex procedural realm of the False Claims Act, the
claim itself belongs to the United States, even while the qui tam
plaintiff has very clearly been given a role to play in the
initiation and litigation of the case.
In addition to the statutory restrictions discussed above,
courts have expressed concerns that United States might
become bound by res judicata or collateral estoppel as a result of
the actions of a pro se litigant in bringing and losing a qui tam
action. See Stoner, 502 F.3d at 1126-27. "A rule that
limits legal representation (except self-representation) to lawyers
operates to filter out frivolous litigation that can redound to the
harm of the represented party…. A party may be bound, or his
rights waived, by his legal representative. When that
representative is a licensed attorney there are grounds for belief
that the representative's character, knowledge and training are
equal to the responsibility." United States ex rel. Lu v. Ou,
368 F.3d 773, 775-776 (7th Cir. 2004) (internal citations and
quotation omitted). "A relator may make sweeping
allegations that, while true, he is unable effectively to
litigate, but which nonetheless bind the government, via res
judicata, and prevent it from suing over those concerns at a later
date when more information is available." Riley v. St. Luke's
Episcopal Hospital, 252 F.3d 749, 763 (5th Cir. 2001).
From the relator's perspective, as well, it would seem foolhardy
to attempt to pursue a qui tam case without experienced counsel.
In addition to the need to protect the government, relators
themselves have important interests in terms of possible
retaliation, fighting issues of public disclosure or
"first-to-file" that only impact the relator and not the
government, ensuring an adequate share of the government's
recovery, and possible ancillary issues such as accusations of
theft of company documents. Although these are not legal
considerations that led to the prevailing rule that a qui tam
plaintiff cannot proceed pro se, they are practical concerns that
happen to buttress the rule spelled out by the courts.
If you have discovered evidence of government fraud,
contact an experienced False Claims Act attorney before blowing the
whistle. You may be entitled to a substantial reward and the legal
protections afforded to whistleblowers under state and federal
laws. The attorneys of Berger & Montague are nationally
recognized experts in Whistleblower/Qui Tam actions with over a
decade of experience pursuing these complex fraud cases. For more
information or to schedule your confidential consultation, use the
form on this page or call us at 1-800-424-6690.