Joseph Wojcicki v. SCANA Corporation

947 F.3d 240

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 14, 2020
• Docket: 17-2045
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-2045

JOSEPH EDWARD WOJCICKI,

Plaintiff - Appellant,

v.

SCANA/SCE&G,

Defendants – Appellees.

--------------------------------

UNITED STATES OF AMERICA,

Amicus Curiae.

Appeal from the United States District Court for the District of South Carolina, at Columbia. J. Michelle Childs, District Judge. (3:14-cv-00838-JMC)

Argued: September 20, 2019 Decided: January 14, 2020

Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judge Harris joined.

ARGUED: Lukas R. Gleissner, GLEISSNER LAW FIRM, LLC, Columbia, South Carolina, for Appellant. Amy R. Upshaw, KING & SPALDING LLP, Washington, D.C., for Appellees. Melissa N. Patterson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF: Richard Robert Gleissner, GLEISSNER LAW FIRM, LLC, Columbia, South Carolina, for Appellant. Ashley C. Parrish, Washington, D.C., David L. Balser, KING & SPALDING LLP, Atlanta, Georgia, for Appellees. Joseph H. Hunt, Assistant Attorney General, Charles W. Scarborough, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Amicus United States.

2 THACKER, Circuit Judge:

Appellant Edward Joseph Wojcicki (“Appellant”) seeks to maintain a qui tam action

pursuant to the False Claims Act (the “FCA”) without the benefit of counsel. Because a

pro se plaintiff cannot represent the Government’s interest in a qui tam suit, we affirm the

district court’s dismissal order.

For this same reason, we also affirm the district court’s denial of Appellant’s motion

for reconsideration of its dismissal order.

I.

In February 2012, Appellant sent a letter to the Nuclear Regulatory Commission

detailing his concerns as to a rate adjustment application submitted pursuant to the South

Carolina Base Load Review Act (the “BLRA”), S.C. Code Ann. § 58-33-275, by SCANA

Corporation and South Carolina Electric & Gas Corporation (“Appellees”). Appellant’s

letter expressed concerns about Appellees’ proposed location of two nuclear energy

facilities in Jenkinsville, South Carolina. On March 11, 2014, because his concerns

remained unaddressed, Appellant filed the underlying pro se qui tam action against

Appellees in the United States District Court for the District of South Carolina. There,

Appellant -- “on behalf of the United States of America” -- alleged Appellees had violated

the FCA, 31 U.S.C. § 3729, by filing false claims under the BLRA in order to receive

permission to “increase electric energy [kWh] rates to cover costs of construction [of] two

3 nuclear units (2 and 3) in Jenkinsville, SC” rather than seeking federal government funds

for the project. J.A. 6. 1

After filing the complaint, Appellant filed a “Motion to Place Complaint Under Seal

and Request to Withhold Issue of Summons” for 60 days, pursuant to the FCA. J.A. 104

(citing 31 U.S.C. § 3730(b)(2)). The case was then referred to a United States magistrate

judge. The magistrate judge granted the motion on April 1, 2014, but cautioned Appellant

that, to bring a proper qui tam action, he must (1) retain counsel and (2) “provide

summonses necessary for service of the complaint on the United States Attorney General

and United States Attorney for the District of South Carolina.” Id. at 105. If Appellant

failed to do so within 21 days, the magistrate judge warned, the case could be “dismissed

for failure to prosecute and failure to comply with an order of this court under Fed. R. Civ.

P. 41.” Id.

Appellant complied with neither directive. Instead, Appellant filed a motion for

extension of time in order to obtain an attorney and also filed summons forms made out to

Appellees, rather than the government entities as instructed. Nonetheless, the magistrate

judge allowed Appellant 14 extra days to complete the proper summons and, again, warned

Appellant that failure to comply with the court orders could result in dismissal pursuant to

Rule 41 of the Federal Rules of Civil Procedure. This time, Appellant complied with the

request to fill out the summons forms. However, instead of retaining counsel, Appellant

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

4 requested the appointment of counsel. But given the lack of a right to counsel in civil

actions, the motion was denied.

On June 14, 2014, the magistrate judge issued a report and recommendation to the

district court, recommending that the action be unsealed and dismissed without prejudice.

On July 9, 2014, the district court unsealed the case, but did not act on the dismissal

recommendation. Appellant filed timely objections.

Then, on August 3, 2015, Appellant filed a motion requesting (1) the appointment

of counsel and (2) “reverse summary judgment.” J.A. 138. This motion was denied on

January 19, 2016. Specifically, as to the request for counsel, the district court found

Appellant had not identified any exceptional circumstances meriting the appointment of

counsel in a civil action. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (noting

that appointment of counsel “should be allowed only in exceptional cases”). On January

28, 2016, Appellant filed a motion for reconsideration “of the findings in the court order”

seeking “any possible helps, including legal.” J.A. 142–43. Ultimately, on January 17,

2017, the district court accepted the June 14th report and recommendation, determining

that the magistrate judge had “correctly concluded that [Appellant’s] Complaint was

subject to dismissal because of [Appellant’s] status as a pro se litigant,” and dismissed the

action without prejudice. Id. at 147–49.

Shortly thereafter, on January 27, 2017, Appellant filed a motion to reconsider the

January 17 order dismissing the action. Specifically, Appellant contended that he was

permitted to proceed pro se in the qui tam action, because the FCA did not state otherwise,

and to require him to retain counsel would “act as a manifest injustice.” J.A. 154. On

5 January 30, 2017, Appellant filed an amendment to his motion to reconsider, to append an

excerpt from Appellant’s e-book as an exhibit that was mistakenly omitted from the

original motion. 2 On August 9, 2017, the district court denied Appellant’s January 27

motion for reconsideration as moot and denied Appellant’s amended motion for

reconsideration because Appellant had failed to show any intervening change in law, new

evidence, or that manifest injustice would result. See Zinkand v. Brown, 478 F.3d 634, 637

(4th Cir. 2007) (identifying proper grounds for reconsideration).

On September 7, 2017, Appellant filed a notice of appeal “from the Judgment

entered in this action of the 9th day of August, 2017.” J.A. 173. 3 Because “[a] document

filed pro se is to be liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (internal quotation marks omitted), we take Appellant’s notice of appeal to also

contest the January 17 dismissal of his action, not simply the judgment denying his

amended motion for reconsideration.

2 The exhibit, “for Wojcicki’s eBook 2014 copyrighted publication to note the situation on 2017 January 27 in [the] form of [a] Memorandum,” summarizes Appellant’s theory of the issues at stake in this suit. J.A. 164. Appellant’s January 30, 2017 motion to reconsider explains that, upon filing of the January 27, 2017 motion to reconsider, this exhibit was “found later to be missing.” Id. at 163. Per the January 30 motion, the exhibit was intended to “enforce the factual importance of the jury trial in this SCANA (NYSE:SCG) mega-scandal despite some ‘technicalities.’” Id. 3 Appellant also filed a post-judgment motion to reconsider, which was denied. Appellant has not raised any issues related to the denial of this motion, thus any such issues are waived. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).

6 II. A. The FCA prohibits “knowingly presenting false or fraudulent claims to the

government of the United States for payment or approval.” United States ex rel. Carter v.

Halliburton Co., 866 F.3d 199, 202 (4th Cir. 2017) (citing 31 U.S.C. § 3729(a)(1)). The

statute may be enforced through civil actions brought by the Attorney General of the United

States or by private parties, known as relators, in suits known as qui tam actions. Id. When

a relator files a qui tam suit, the action is deemed to be brought “for the person and for the

United States Government.” 31 U.S.C. § 3730(b)(1) (emphasis supplied). As the Supreme

Court has explained, “The FCA can reasonably be regarded as effecting a partial

assignment of the Government’s damages claim” to the relator. Vt. Agency of Nat. Res. v.

United States ex rel. Stevens, 529 U.S. 765, 773 (2000).

A separate statute, 28 U.S.C. § 1654, generically provides parties with the right to

conduct their “own cases,” pro se or by counsel. 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

. . . .”); see also Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (“[A]ppearance pro

se denotes . . . appearance for one’s self; so that a person ordinarily may not appear pro se

in the cause of another person or entity.”). “[T]here is no question that a party may

represent his or her own interests in federal court without the aid of counsel.” Winkelman

ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 522 (2007) (citing 28 U.S.C.

§ 1654). “The right to litigate for oneself, however, does not create a coordinate right to

7 litigate for others.” Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005)

(emphases in original) (citation omitted).

B.

The primary question before us is whether the district court erred in concluding that

a pro se relator cannot bring a qui tam FCA action as though he is bringing his “own” case.

Appellant argues that requiring a relator to secure counsel is contrary to the purpose and

language of the FCA, which, he correctly points out, does not expressly limit qui tam

actions to those brought by represented parties. But relying on a wealth of circuit court

authority, Appellees contend that “a non-attorney has no right to represent the Government

in FCA qui tam actions, even if he also represents his own interests.” Appellees’ Br. 7.

The second question before us is whether the district court abused its discretion in

denying Appellant’s amended motion for reconsideration of its dismissal order. Appellant

claims abuse of discretion, while Appellees contend that, because the dismissal was legally

proper, denial of the motion to reconsider was likewise appropriate.

III.

A.

The FCA Creates No Right for Relators to Appear Pro Se

1.

Reviewing the district court’s Rule 41 dismissal de novo, see Marex Titanic, Inc. v.

Wrecked and Abandoned Vessel, 2 F.3d 544, 545 (4th Cir. 1993), we agree that a relator

cannot pursue a qui tam FCA suit pro se. Though the FCA’s “partial assignment” of a

claim “gives the relator himself an interest in the lawsuit,” that right to recovery is

8 inextricably bound up with the Government’s interest. Vt. Agency of Nat. Res. v. United

States ex rel. Stevens, 529 U.S. 765, 772–73 (2000) (emphasis omitted). Thus, though the

relator party has an interest, it is not the sole interest at stake. This is the core issue in

deciding whether a party can bring a claim pro se.

Whenever a relator brings a qui tam suit to court, the government’s interest in the

action comes along for the ride. Even if the United States does not intervene in a qui tam

action brought pursuant to the FCA, “the United States is bound by the relator’s actions for

purposes of res judicata and collateral estoppel.” Stoner v. Santa Clara Cty. Office of

Educ., 502 F.3d 1116, 1126 (9th Cir. 2007) (internal quotation marks omitted); see also

Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam) (noting that

allowing pro se inmate to represent class of inmates risks a negative judgment that “may

prevent the other inmates from later raising the same claims” and concluding pro se inmate

could not represent class). If we were to allow a qui tam plaintiff to proceed pro se, the

government could be bound by an adverse judgment in the action. Moreover, because the

FCA only allows for one person to bring a qui tam action based on the specific underlying

facts, allowing a pro se relator to pursue a claim could very well prevent another better-

equipped plaintiff from pursuing the claim. See 31 U.S.C. § 3730(b)(5) (first filed action

bars future qui tam actions); see also United States ex rel. Carson v. Manor Care, Inc., 851

F.3d 293, 303 (4th Cir. 2017) (“If a court finds that the particular action before it is barred

by the first-to-file rule, the court lacks subject matter jurisdiction over the later-filed

matter.” (citation omitted)).

9 Though we do not yet have precedential authority addressing the right to proceed

pro se in a qui tam action, we have otherwise considered -- and rejected -- the right of

individuals to litigate pro se on behalf of others. See Myers v. Loudoun Cty. Pub. Sch., 418

F.3d 395, 401 (4th Cir. 2005) (holding “that non-attorney parents generally may not litigate

the claims of their minor children in federal court”). We have articulated two reasons for

this bar: (1) “it protects the rights of those before the court,” and (2) “jealously guards the

judiciary’s authority to govern those who practice in its courtrooms.” Id. at 400. Allowing

individuals to represent themselves pro se “reflects a respect for the choice of an individual

citizen to plead his or her own cause,” but so does the bar preventing individuals without

legal expertise from representing others. Id. (quoting Cheung v. Youth Orchestra Found.

of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)); see Olagues v. Timken, 908 F.3d 200, 203

(6th Cir. 2018) (“[W]hile a pro se plaintiff can squander his own rights, he cannot waste

the rights of other persons or entities[.]” (internal quotation marks omitted)).

Applying this reasoning, we have held, for example, that a pro se prisoner may not

bring a class action on behalf of other prisoners because “we consider the competence of a

layman representing himself to be clearly too limited to allow him to risk the rights of

others.” Oxendine, 509 F.2d at 1407 (construing prisoner’s request for injunctive relief

against prison policy impacting all inmates as a class action). Similarly, courts have

allowed non-attorney administrators to represent an estate where the administrator is the

sole beneficiary but will bar an administrator from going forward pro se if another

beneficiary’s interest is implicated. See, e.g., Murray ex rel. Purnell v. City of

Philadelphia, 901 F.3d 169, 171 (3d Cir. 2018) (“If an estate has one or more beneficiaries

10 besides the administrator, then the case is not the administrator’s own because the interests

of other parties are directly at stake” and those interests “may not be represented by a non-

attorney administrator of an estate.”). Preventing a non-attorney administrator from

vindicating her interest pro se in that context does not materially differ from preventing a

pro se relator from vindicating his partially assigned interest in a qui tam FCA case. In

either instance, the commingling of one’s “own” interest with that of another can prevent

the would-be pro se party from acting without counsel.

Heretofore, there has been no published Fourth Circuit authority on the precise

question before us. However, we have recognized in an unpublished decision that, “[a] lay

person may not bring a qui tam action under the False Claims Act.” U.S. ex rel. Brooks v.

Lockheed Martin Corp., 237 F. App’x 802, 803 (4th Cir. 2007) (per curiam). Specifically,

we observed “[a]lthough a qui tam relator is entitled by statute to a share of the recovery if

his action is successful . . . the United States is the real party in interest, and the need for

adequate legal representation on behalf of the United States counsels against permitting

pro se suits.” Id. More recently, we have applied this rule in another unpublished decision

-- “Count II of [Appellant’s] complaint was subject to dismissal because a pro se litigant

may not pursue a qui tam action on behalf of the Government under the FCA.” Bond v.

Hughes, 671 F. App’x 228, 229 (4th Cir. 2016) (per curiam) (collecting cases).

This stance is in accord with the decisions of our sister circuits that have addressed

this issue. See, e.g., Georgakis v. Ill. State Univ., 722 F.3d 1075, 1077 (7th Cir. 2013)

(“[T]o maintain a suit on behalf of the government, the relator (as the qui tam plaintiff is

termed) has to be either licensed as a lawyer or represented by a lawyer . . . . A nonlawyer

11 can’t handle a case on behalf of anyone except himself.” (citations omitted)); Timson v.

Sampson, 518 F.3d 870, 873 (11th Cir. 2008) (per curiam) (holding a plaintiff may not

bring a qui tam FCA action as a pro se relator); United States ex rel. Mergent Servs. v.

Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (“Because relators lack a personal interest in False

Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se.”);

Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1126–28 (9th Cir. 2007); United

States v. Onan, 190 F.2d 1, 6–7 (8th Cir. 1951). 4

2.

Section 1654 -- the general grant of authority to proceed pro se -- expressly provides

that a party may proceed pro se in their own case. 28 U.S.C. § 1654. The FCA, for its

part, gives a relator the “right to conduct the action.” 31 U.S.C. § 3730(c)(3). But there is

no indication that this assignment was intended to abrogate the general rule that a person

may not represent another person or entity pro se. See, e.g., Onan, 190 F.2d at 6

(explaining, where Congress did not expressly authorize relator to proceed pro se, it “must

have had in mind that such a suit would be carried on in accordance with the established

4 See also Gunn v. Credit Suisse Grp. AG, 610 F. App’x 155, 157 (3d Cir. 2015) (per curiam) (“[W]e do not hesitate to conclude that the District Court did not err in concluding that [Appellant] Gunn may not maintain this qui tam action in his pro se capacity as a relator on behalf of the United States.”); Nasuti v. Savage Farms, Inc., No. 14-1362, 2015 WL 9598315, at *1 (1st Cir. Mar. 12, 2015); Jones v. Jindal, 409 F. App’x 356, 356 (D.C. Cir. 2011) (per curiam) (“The district court properly dismissed appellant’s complaint because a pro se plaintiff may not file a qui tam action pursuant to the False Claims Act, 31 U.S.C. § 3729, et seq.”).

12 procedure which requires that only one licensed to practice law may conduct proceedings

in court for anyone other than himself”).

Thus, given our precedent regarding pro se representation and the consensus

amongst all circuits to have squarely considered the issue, we readily conclude that

Appellant cannot bring a pro se FCA qui tam action. 5 As a result, we affirm the district

court’s dismissal of Appellant’s complaint.

The District Court Did Not Abuse its Discretion in Denying Appellant’s Motion to Reconsider

We review the denial of a motion for reconsideration under the deferential abuse of

discretion standard. United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 206 (4th

Cir. 2017) (citation omitted). “Rule 59(e) motions [for reconsideration] can be successful

in only three situations: (1) to accommodate an intervening change in controlling law; (2)

to account for new evidence . . . ; or (3) to correct a clear error of law or prevent manifest

injustice.” Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007) (internal quotation marks

omitted). Appellant does not cite an intervening change in law or new evidence in support

5 A few additional circuits have considered qui tam suits brought before them by pro se relators without speaking to this question. See U.S. ex rel. Heath v. Dallas-Fort Worth Intern. Airport Bd., 260 F. App’x 708, 711 (5th Cir. 2005) (per curiam) (deciding pro se appeal from qui tam trial without noting lack of counsel issue); U.S. ex rel. Sweigert v. Elec. Sys. Assocs., Inc., 85 F.3d 630, 630 (Table) (6th Cir. 1996) (affirming dismissal in appeal filed pro se without addressing lack of counsel); U.S. ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F.2d 1327, 1328–29 (10th Cir. 1978) (per curiam) (affirming dismissal of qui tam suit brought pro se without considering effect of pro se status).

13 of his motion to reconsider. Appellant asserts only “manifest injustice” as a potential basis

for reconsideration. However, we have previously held that where the district court’s initial

decision was correct, the denial of a motion to reconsider cannot be clearly erroneous or

manifestly unjust. See Halliburton Co., 866 F.3d at 211. Here, because its dismissal

decision was correct in the first instance, we hold that the district court did not abuse its

discretion in denying Appellant’s amended motion to reconsider its prior judgment.

IV.

For the reasons set forth herein, the decisions of the district court as to both the

motion to dismiss and the amended motion for reconsideration are

AFFIRMED.