Do I Really Need a False Claims Act Attorney? Pro Se Relators and the Pitfalls of Trying to Do it Alone

You’ve suspected fraud at your workplace. You’ve gathered evidence that confirm your suspicions. You’ve researched the False Claims Act (“FCA”). You think you qualify to be a whistleblower and now you’re ready to file a qui tam complaint.

In fact, you’re so prepared that you’re thinking maybe you don’t even need an attorney. After all, you can file an FCA case by yourself just like any other lawsuit, right?

Wrong.

To protect the Government, courts have adopted a straightforward rule that an FCA relator may not bring a case pro seStoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1126-28 (9th Cir.2007); Timson v. Sampson, 518 F.3d 870, 873-874 (11th Cir.2008); U.S. ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir.2004).  Every court to address the issue has ruled the same, thus representing one of the few issues surrounding the FCA where there is no split among the circuits.

Although it is certainly advisable to consult with an attorney to bring complex cases, it is every person’s right to represent his or her own interests in most legal proceedings. Indeed, acting pro se is a right entitled to individuals by United States statutes. 28 U.S.C. § 1654 (“In all courts of the United States, the parties may plead and conduct their own cases personally or by counsel….”) ..

The key to this right, however, is that a person must be representing “his or her own interests,” not the interest of any others.  Stoner, 502 F.3d at 1126.  The relator in an FCA case does not bring a case based on his or her own interests, but on behalf of the United States of America.  From the time a case is filed until the time it is resolved, whether or not the Government intervenes, the case belongs to the United States as the real party in interest.  U.S. ex rel. Milam v. University of Texas M.C. Anderson Cancer Center, 961 F.2d 46, 50 (4th Cir.1992).

Because the interests of the United States are at issue, the stakes are incomparably high and therefore the rules are different.  An inexperienced or untrained relator, even with the best intentions, may make a misstep which compromises the Government’s ability to obtain a recovery.  Stoner, 502 F.3d at 1126 (“[T]he United States ‘is bound by the relator’s action’ for purposes of res judicata and collateral estoppel.”)  Because of the incredibly complex rules of the False Claims Act, one simple procedural mistake or pleading deficiency can doom a case.  As such, the law requires relators to engage experienced FCA attorneys to avoid such pitfalls.

So, as a practical matter, if you’ve gotten this far in your investigation of a suspected fraud and you’re prepared to take the courageous step of becoming a whistleblower, then do it right.  Find a law firm with a proven record of success under the False Claims Act to help you bring your case on behalf of the United States.

To contact James Hoyer about a suspected FCA violation, please contact us here or call us toll-free at 1-800-651-2502.

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