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Fourth Circuit Says You Need an Attorney to File a Qui Tam Claim

Man in suit with a red whistle. Whistleblowing concept.
By Joseph Fawbush, Esq. on January 17, 2020 12:04 PM

Whistleblowers cannot represent the interests of the government by bringing a qui tam claim pro se. At least, that was the recent conclusion of a Fourth Circuit panel. “While a pro se plaintiff can squander his own rights," the panel noted, “he cannot waste the rights of other persons or entities." This includes the government's rights.

The case arose when Joseph Wojcicki notified the Nuclear Regulatory Commission of his belief that SCANA Corp., a public utility in South Carolina, violated the False Claims Act by making false statements in an attempt to raise rates so two new nuclear power plants could be built. Wojcicki ultimately filed a qui tam action in district court but failed to retain an attorney as the magistrate judge warned him to. Wojcicki instead asked the court to appoint counsel, but the judge denied the request since there were no extraordinary circumstances that justified doing so. Eventually, the magistrate judge dismissed the case due to Wojcicki's failure.

You Cannot Represent a Class Pro Se

The FCA does not expressly prohibit plaintiffs from bringing qui tam actions pro se, Wojcicki argued. The FCA only includes language that the relator has the “right to conduct the action." However, courts typically do not allow plaintiffs to bring a pro se suit on behalf of others, and the FCA does not give any indication Congress intended to override this rule, according to the panel. In a qui tam action, the government is “along for the ride" Judge Thacker wrote in the unanimous opinion, even if the United States does not intervene. And since the government is bound by any judgment, allowing a plaintiff to proceed pro se could prevent other, “better-equipped plaintiffs" from pursuing the same qui tam claim.

While a novel issue in the Fourth Circuit, other circuits to have decided this issue have held the same. The Fourth joins the Second, Eighth, Ninth and Eleventh circuits in expressly prohibiting plaintiffs from proceeding pro se on a whistleblower claim. The Fourth Circuit has prohibited plaintiffs from proceeding pro se in other matters that include the rights and interests of others, as well, such as class actions. The Justice Department had filed an amicus brief arguing that Wojcicki could not proceed on his claim.

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