Pro Se Relators, Beware

Courts tend to dismiss the complaints of whistleblowers that file under the False Claims Act without an attorney. The legal system uses the Latin term “pro se,” meaning “for self,” to describe when one attempts to represent him or herself in a legal proceeding. Usually, courts will not tolerate pro se whistleblowers and will dismiss their complaints. The reasoning behind this can be traced to the unusual nature of a qui tam action and the dual role of the relator/whistleblower.

Whistleblowers under the False Claims Act bring the claim on their own behalf and on behalf of the United States government. Most courts recognize these dual interests even if the United States declines to intervene in the action, leaving the whistleblower on his own to pursue it. The federal district court in the District of Columbia explained the rationale in its decision in U.S. ex rel. Rockefeller v. Westinghouse Elec. Co.:

“Because the United States is the real party in interest, a judgment obtained by a relator may adversely affect the United States' right to ‘bring future actions on the same claims asserted here, even if [the United States] obtained new evidence.’ Considering what is at stake for the United States when a relator brings a qui tam action, representation by a lay person is inadequate to protect the interest of the United States. . . . Therefore, this Court concludes that a pro se plaintiff, absent explicit statutory authorization, is unable to represent the interests of the United States in a qui tam action.” 274 F. Supp. 2d 10 (D.D.C. 2003).

Pro se whistleblowers can easily lose their claims entirely after investing significant resources over years. For example, KEMY has seen instances in which whistleblowers file their claims under seal, only to wait years for the Department of Justice to decide that it does not want to intervene. The whistleblower then attempts to pursue the claim on his own, and the court then dismisses it because the whistleblower doesn’t have an attorney. These circumstances frustrate the ability to get important fraud issues addressed. Re-filing with counsel can be an option and should always be pursued, but precious time will have been lost as well as evidence, first to file status, and cash. Whistleblowers need to get counsel up front if they want to file under the False Claims Act. Don’t fall into the all too common pro se trap.