Pro Se Plaintiff Cannot Bring Qui Tam Action Because U.S. Is Real Party in Interest and Pro Se Can’t Represent Another — Does FCA Allow Private Citizen to File RICO Claim on Behalf of Government?
Gunn v. Credit Suisse Grp. AG, 2015 U.S. App. LEXIS 6541 (3d Cir. April 1, 2015):
In January 2013, Gunn filed a pro se qui tam action under the False Claims Act ("FCA"), 31 U.S.C. § 3730 et seq., on behalf of the United States.1 ***
1. The FCA makes it unlawful to knowingly submit a fraudulent claim to the Government. See, e.g., United States ex rel. Paranich v. Sorgnard, 396 F.3d 326, 331-32 (3d Cir. 2005). A qui tam action permits a private party, a relator, to file suit on behalf of the United States against anyone submitting a false claim to the Government, and rewards a successful plaintiff with part of the recovery. See [*3] United States ex rel. Zizic v. Q2Administrators, 728 F.3d 228, 231 n.1 (3d Cir. 2013).
[T]he District Court concluded that the complaint was subject to summary dismissal given the simple fact that Gunn, who is not an attorney, was not qualified to represent the United States. The District Court further noted that Gunn's failure to comply with several FCA service and filing requirements justified dismissal of his complaint, as did the fact that the complaint failed to set out a cognizable FCA claim. See id. at 5-6.
Gunn's attempt to raise a RICO claim fared no better as the District Court concluded that nothing in the FCA allows a private citizen to file such a claim on behalf of the United States. Moreover, Gunn could not represent the Government with respect to any such claim. The court therefore entered an order dismissing the complaint in its entirety pursuant to § 1915(e)(2)(B). The court further noted that the only way Gunn could attempt to cure the defects would be to obtain counsel and file an amended complaint. Gunn was thus afforded an opportunity to obtain counsel to enter an appearance and file an amended complaint. Gunn was warned that his failure to do so would result in the Clerk being directed to close his case. After considering Gunn's reconsideration motion wherein he requested leave to file an amended pro se complaint, the District Court entered an order denying the motion and directing the Clerk to close the case. This timely appeal followed.
There can be little doubt that the United States remains the real party in interest in this action. See, e.g., United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 934-35 (2009); Mergent Servs., 540 F.3d at 93. As set forth in 28 U.S.C. § 1654, "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel ...." The federal courts "have routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity." Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008) (collecting cases); see also Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882 (3d Cir. 1991) (holding that parent and guardian could not litigate pro se on behalf of his children). Gunn does not allege that he has a personal interest or injury to vindicate on account of appellees' alleged actions. As such, we do not hesitate to conclude that the District Court did not err in concluding [*5] that Gunn may not maintain this qui tam action in his pro se capacity as a relator on behalf of the United States.
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