On Behalf of the King

Hodgson Russ LLP

Hodgson Russ LLP

The False Claims Act is aimed at fraudulent claims for payment from the government (or, in what are known as “reverse” false claims, underpayment to the government), and the typical case involves a whistleblower who helps the government uncover the fraud. In some of these cases, the whistleblower tells the government and the government initiates the lawsuit. But in others, the government does not get involved and the whistleblower becomes a relator - someone who litigates the action on behalf of the government. These are known as “qui tam” actions, a phrase that is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur.” This translates, more or less, to “He who sues for the king as well as for himself in this issue.” The “for himself” refers to the substantial financial incentives for whistleblowing. A whistleblower in a successful case may receive a substantial portion of the damages to the government, and - even if a case is not ultimately successful - is protected from being retaliated against for whistleblowing.

But the first part of the quote is also important: that the whistleblower is suing on behalf of the “king” - or, in the United States, the government - not just in his or her own interests. Unlike a traditional civil lawsuit, in which someone sues to redress a harm that the defendant has done to them, a whistleblower in a qui tam lawsuit is suing to redress a harm that the defendant has done injury to the government. In other words, the whistleblower is representing his interests and, vitally, the interests of another.

This matters because under federal law, plaintiffs in federal court may not appear pro se where interests other than their own are at stake. See 28 U.S.C. § 1654. The purpose of this rule is to protect the interests of those others from being squandered by somebody who is not equipped to represent them. This doctrine is routinely applied in securities litigation and would-be class action lawsuits. However, Courts have increasingly found it applicable in qui tam litigation. The Second Circuit, Third Circuit, Fourth Circuit, Sixth Circuit, Seventh Circuit, Ninth Circuit, and Tenth Circuit have all upheld the dismissal of qui tam claims brought by pro se litigants, reasoning that, “though the relator party has an interest . . . that right to recovery is inextricably bound up with the Government’s interest.”  Wojcicki v. SCANA/SCE&G, 947 F.3 240, 244 (4th Cir. 2020).

These holdings make it vital for whistleblowers to retain counsel when filing a case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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