Courts to Whistleblowers: No Lawyer, No Qui Tam Lawsuit

It takes a lot of gumption to sue your own employer for the good of the federal government. But while the False Claims Act (FCA) authorizes whistleblowers to file qui tam lawsuits on the government’s behalf, there’s one thing it doesn’t allow them to do: Act as their own attorney in the case. This might seem like a minor point, but it can have game changing repercussions in actual cases, especially if a whistleblower tries to sue your lab without being represented by counsel.

Federal Court Rejects Whistleblower’s Pro Se Lawsuit

A whistleblower from New Jersey learned this lesson the hard way. It was a rather strange case that began when a woman called the police claiming that her daughter was threatening her with a knife. The daughter vehemently denied the charge but the responding officers could tell that something was just not right. So, they gave the daughter a choice: go to the emergency room or go to jail. After initially choosing jail, the daughter changed her mind and went to the ER, where she was given a mental screening leading to a diagnosis of bipolar disorder.

The daughter sued the hospital for, among other things, deliberately fabricating the diagnosis so it could send her to a short-term mental facility affiliated with the hospital and bill federal healthcare programs for the cost. But instead of hiring an attorney, she filed what’s called a pro se case, i.e., one in which litigants represent themselves. Individuals are normally allowed to do this when bringing a civil lawsuit for money damages. It may be that they don’t have the money to hire a lawyer; or maybe they just think they understand the case better than anybody else.

The problem, as the whistleblower in the New Jersey case would learn the hard way, is that while the FCA allows private citizens to bring FCA qui tam whistleblower lawsuits, it doesn’t allow them to do it on a pro se basis. And since the relator in this case didn’t have an attorney, the federal district court tossed her FCA claims without a trial. She could have fixed the problem by hiring an attorney. Instead, she appealed, which turned out to be a waste of time and effort when the U.S. Appeals Court for the Third Circuit summarily upheld the lower court’s ruling.

[Ajjahnon v. St. Joseph’s Univ. Med. Ctr., 2020 U.S. App. LEXIS 40459, 2020 WL 7694086]

Takeaway: Relators Must Hire an Attorney

At first blush, it may seem incongruous to let individuals file qui tam lawsuits on the government’s behalf but not let them do so on a pro se basis. After all, whistleblowers are a tough lot willing to take on the establishment by themselves. But the rule, which has emerged from how federal courts have interpreted the FCA in actual cases, makes a lot of sense when you consider the reasons behind it.

First, a qui tam case isn’t really about the relator but the federal government. Or, as courts phrase it, “the United States is the actual party in interest.” The claim belongs to the government; the FCA merely allows the relator to assert it on the government’s behalf. And, the thinking goes, if relators are going to avail themselves of that right, they owe it to the government and taxpayers to do it right. And that means hiring professional counsel and not bringing the case themselves.

Equally, if not more compelling, is the fact that while the FCA gives a relator the “right to conduct the action” (31 U.S.C. § 3730(c)(3)), it includes no language enabling a relator to conduct the action without an attorney. And every circuit court that has addressed the issue has pointed to that omission in not allowing a relator to bring a pro se qui tam lawsuit.