LawyersUSA

Because the United States is the real party in interest in a False Claims Act suit, a private party is not entitled to proceed pro se, the 2nd Circuit has ruled.

In a second case decided the same day, the court held that if the United States chooses not to intervene in a qui tam action then it is not a "party," making the plaintiff a private party who can't take advantage of the 60-day time frame the government has for filing appeals under the Federal Rules of Appellate Procedure.

Pro se suit

A company provided air purifying equipment to a client who failed to pay for it. The client then allegedly submitted a false receipt to the state of New York to receive reimbursement for costs she never incurred.

The owner of the company filed a pro se qui tam suit, but the United States declined to intervene. A U.S. District Court dismissed the suit.

The company owner appealed, arguing that the courts should decide whether a pro se plaintiff can proceed on a case-by-case basis, technological developments have made it possible for the general public to do legal research.

But the court disagreed.

"The circumstances under which civil litigants may appear without counsel are limited by statute. … [I]n federal court, '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.' Because the statute permits parties only to 'plead and conduct their own cases personally,' we have held that 'an individual who is not licensed as an attorney 'may not appear on another person's behalf in the other's cause.' That is, in order to proceed pro se, '[a] person must be litigating an interest person to him,'" the court said.

In False Claims Act case, "a private person, or 'relator' may bring a qui tam action 'for the person and for the United States government,' against the defendant, 'in the name of the government.' … While relators indisputably have a stake in the outcome of False Claims Act qui tam cases that they initiate, 'the government remains the real party in interest in any such action.' … Accordingly… is not the relator's 'own case' as required by [the statute], nor one in which he has 'an interest personal to him.' 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 said.

It cited similar decisions from the 7th, 8th, 9th and 11th Circuits.

Time for appeal

In the second case, a group of plaintiffs filed a qui tam suit against the city of New York alleging that it violated the False Claims Act to require non-resident city employees to pay a fee equivalent to the municipal income taxes paid by resident city employees. The United States declined to intervene.

A U.S. District Court granted the city's motion to dismiss, and the plaintiffs appealed 54 days later.

The city argued that the 2nd Circuit didn't have jurisdiction over the case because Federal Rule of Appellate Procedure 4(a) required an appeal to be filed within 30 days and the alternative 60-day time period set forth in the Rules didn't apply because the United States wasn't a party.

The court agreed.

"The text of Rule 4(a)(1)(B) states that the extended filing period applies when the United States is a 'party' to the action. We hold that the United States is not a 'party' to this action for the purposes of the deadline for filing a notice of appeal. In our view, the United States is not a party for those purposes to a qui tam action when the government fails to intervene or to raise or resist any legal claim. …

"As used in Rule 4(a)(1), the word 'party' refers to the person participating in the proceeding with control over the litigation. The government, once having declined to intervene at the outset of an action may not participate in it, save for asking that it be served with pleadings and for approving any withdrawal with prejudice, without moving to intervene upon a showing of good cause. The inability to participate without moving to intervene is simply not consistent with the principal characteristics of being a party to litigation," the court said.

It noted a similar case from the 10th Circuit, as well as contrary authority from the 5th, 7th and 9th Circuits.

U.S. Court of Appeals, 2nd Circuit. U.S. v. Flaherty, No. 06-3081-cv. Lawyers USA No. 99310612. Aug. 19, 2008. Click here to link to the full text of this opinion.

U.S. v. City of New York, No. 06-3329-cv. Lawyers USA No. 99310613. Aug. 19, 2008. Click here to link to the full text of this opinion.