WHISTLEBLOWER CASES FILED PRO SE RISK DISMISSAL
The United States District Court for the District of Nevada recently held that qui tam relators cannot proceed with a case brought pursuant to the False Claims Act (“FCA”) without representation of counsel when the United States declines to intervene in the case. The opinion can be found at Malone v. Ohama Housing Auth., 2011 WL 1435257 (D. Neb. April 14, 2011). In Malone, the court recognized that the FCA is silent on whether a whistleblower can proceed pro se; however, the court relied controlling precedent within the Court of Appeals for the Eight Circuit, United States v. Onan, 190 F.2d 1, 6-7 (8th Cir. 1951), in making its ruling. In Onan, the Eight Circuit held:
[W]e do not think that Congress could have intended to authorize a layman to carry on such suit as attorney for the United States but must have had in mind that such a suit would be carried on in accordance with the established procedure which requires that only one licensed to practice law may conduct proceedings in court for anyone other than himself…it is unthinkable that Congress by this Act intended to license laymen to practice law. The practice of law is affected with a public interest and an attorney at law as distinguished from a layman, has both public and private obligations, being sworn to act with all good fidelity toward both his client and the court.
Id.
The Malone court went on to state that the Eight Circuit’s ruling in Onan, supra, has been adopted in numerous other federal court courts, including the Second, Seventh, Ninth, Eleventh, and D.C. Circuits. Malone, 2011 WL 1435257 at * 1(citing Jones v. Jindal, No. 10-7124, 2011 WL 588062, at *1 (D.C. Cir. Feb. 10, 2011); Meidinger v. Healthcare Indus. Oligopoly, 391 F. App’x 777, 780 (11th Cir. 2010); United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93-94 (2d Cir. 2008); Timson v. Sampson, 518 F.3d 870, 873-74 (11th Cir. 2008); 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. 2005), overruled on other grounds, 129 S.Ct. 2230 (2009)).
While the Malone court left open the possibility that a relator who is also an attorney may proceed without counsel, in that case, because the relator was a non-attorney, the court dismissed the whistleblowers lawsuit. Malone, 2011 WL 1435257 at * 2.
This entry was posted on Friday, February 17th, 2012 at 8:11 pm and is filed under corporate fraud, False Claims Act, government fraud. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
