United States of America v. West Valley Vision Center, Inc.

• Court: District Court, D. Alaska
• Decided: October 5, 2022
• Docket: 4:22-cv-00032
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA ex rel. Barry Donnellan and Qui tam,

Plaintiff,

vs.

THE SAYER LAW GROUP, P.C., Case No. 4:22-cv-00019-RRB

SLAYDEN PLUMBING AND Case No. 4:22-cv-00020-RRB HEATING, P.C.,

AOFS VAN LEEUWEN, PC, Case No. 4:22-cv-00022-RRB

PETE B. HIGGINS DDS, LLC, Case No. 4:22-cv-00023-RRB

JEWEL ISAAC, LLC, Case No. 4:22-cv-00024-RRB

FAIRBANKS ORTHODONTIC Case No. 4:22-cv-00025-RRB GROUP,

NORTHLAND AVIATION Case No. 4:22-cv-00026-RRB SERVICES, INC.,

SAMSON ELECTRIC, INC., Case No. 4:22-cv-00027-RRB

FULLFORD ELECTRIC, INC., Case No. 4:22-cv-00028-RRB

GENE’S, INC., Case No. 4:22-cv-00029-RRB

k2 FAIRBANKS, LLC, Case No. 4:22-cv-00030-RRB

AT&S, INC, Case No. 4:22-cv-00031-RRB

WEST VALLEY VISION CENTER, Case No. 4:22-cv-00032-RRB INC., CAFÉ DE PARIS CATERING Case No. 4:22-cv-00033-RRB COMPANY,

NORTHERN LIGHTS BUSINESS, Case No. 4:22-cv-00034-RRB INC.,

TODD Z. WENTZ D.D.S., M.S., Case No. 4:22-cv-00035-RRB P.C.,

GROUNDHOGS, LLC, Case No. 4:22-cv-00036-RRB

DENALI MECHANICAL, INC., Case No. 4:22-cv-00037-RRB

SHANE D. RHOTON, LLC, Case No. 4:22-cv-00038-RRB

MOONSTONE, LLC, Case No. 4:22-cv-00039-RRB

JESKA-ALASKA, INC., Case No. 4:22-cv-00040-RRB

AURORA ANIMAL CARE (clinic), Case No. 4:22-cv-00041-RRB INC.,

TIMMONS & LARSON, INC., Case No. 4:22-cv-00042-RRB

TCI CONSTRUCTION, INC., Case No. 4:22-cv-00043-RRB

IMPORT AUTO BODY, INC., Case No. 4:22-cv-00044-RRB

DRENNON CONSTRUCTION & Case No. 4:22-cv-00045-RRB CONSULTING, INC.,

AMPED ELECTRIC, INC., Case No. 4:22-cv-00046-RRB

AUTO TRIM DESIGN OF Case No. 4:22-cv-00047-RRB FAIRBANKS, INC.,

SUN AIR SHEET METAL, INC., Case No. 4:22-cv-00048-RRB

ELEMENTS, LLC, Case No. 4:22-cv-00049-RRB KANTISHNA ROADHOUSE, INC., Case No. 4:22-cv-00050-RRB

FAIRBANKS NISSAN, LLC., Case No. 4:22-cv-00051-RRB

GOETHE, LLC, Case No. 4:22-cv-00052-RRB

PIKE’S ON THE RIVER, INC., Case No. 4:22-cv-00053-RRB

ALASKA RIVERWAYS, INC., Case No. 4:22-cv-00054-RRB

BRICE, INCORPORATED, Case No. 4:22-cv-00055-RRB

FLOWLINE ALASKA, INC., Case No. 4:22-cv-00056-RRB

GENE’S, INC., Case No. 4:22-cv-00057-RRB

FOUNTAINHEAD DEVELOPMENT, Case No. 4:22-cv-00058-RRB INC.,

SOURDOUGH EXPRESS, INC., Case No. 4:22-cv-00059-RRB

GREAT NORTHWEST, INC., Case No. 4:22-cv-00060-RRB

PDC (CONSULTING ENGINEERS), Case No. 4:22-cv-00061-RRB INC.,

G2 CONSTRUCTION, INC., Case No. 4:22-cv-00062-RRB

DESIGN ALASKA, INC., Case No. 4:22-cv-00063-RRB

PIKE’S ON THE RIVER, INC., Case No. 4:22-cv-00064-RRB

ALASKA EQUIPMENT RENTALS, Case No. 4:22-cv-00065-RRB INC.,

ALASCCONNECT, LLC, Case No. 4:22-cv-00066-RRB

Defendants. ORDER OF DISMISSAL Before the Court are 47 civil actions brought by Barry Donnellan, as a relator,

on behalf of the United States of America pursuant to the False Claims Act, 31 U.S.C. § 3729, et seq. Due to the unique statutory requirements, procedural functions of the False Claims Act and qui tam actions, and Mr. Donnellan’s recent litigation strategy, prompt judicial review of these actions is required. I. Procedural History & Background

On August 9, 2022, Mr. Donnellan filed two qui tam actions, without the filing fee or a motion to proceed in forma pauperis.1 On August 17, 2022, Mr. Donnellan filed eight qui tam actions, without the filing fee or a motion to proceed in forma pauperis.2 On August 18, 2022, Mr. Donnellan filed 12 qui tam actions, without the filing fee or a motion to proceed in forma pauperis.3 On August 19, 2022,

Mr. Donnellan filed 25 qui tam actions, without the filing fee or a motion to proceed in forma pauperis.4

1 4:22-cv-00019-RRB (SEALED); 4:22-cv-00020-RRB (SEALED). 2 4:22-cv-00022-RRB (SEALED); 4:22-cv-00023-RRB (SEALED); 4:22-cv-00024-RRB (SEALED); 4:22-cv-00025-RRB (SEALED); 4:22-cv-00026-RRB (SEALED); 4:22-cv-00027-RRB (SEALED); 4:22-cv-00028-RRB (SEALED); 4:22-cv-00029-RRB (SEALED). 3 4:22-cv-00030-RRB (SEALED); 4:22-cv-00031-RRB (SEALED); 4:22-cv-00032-RRB (SEALED); 4:22-cv-00032-RRB (SEALED); 4:22-cv-00033-RRB (SEALED); 4:22-cv-00034-RRB (SEALED); 4:22-cv-00035-RRB (SEALED); 4:22-cv-00035-RRB (SEALED); 4:22-cv-00036-RRB (SEALED); 4:22-cv-00037-RRB (SEALED); 4:22-cv-00038-RRB (SEALED); 4:22-cv-00039-RRB (SEALED); 4:22-cv-00040-RRB (SEALED); 4:22-cv-00041-RRB (SEALED). 4 4:22-cv-00042-RRB (SEALED); 4:22-cv-00043-RRB (SEALED); 4:22-cv-00044-RRB (SEALED); 4:22-cv-00045-RRB (SEALED); 4:22-cv-00046-RRB (SEALED); 4:22-cv-00047-RRB (SEALED); 4:22-cv-00048-RRB (SEALED); 4:22-cv-00049-RRB (SEALED); 4:22-cv-00050-RRB (SEALED); 4:22-cv-00051-RRB (SEALED); 4:22-cv-00052-RRB (SEALED); 4:22-cv-00053-RRB (SEALED); 4:22-cv-00054-RRB (SEALED); 4:22-cv-00055-RRB (SEALED); 4:22-cv-00056-RRB (SEALED); 4:22-cv-00057-RRB (SEALED); 4:22-cv-00058-RRB (SEALED); 4:22-cv-00059-RRB Upon the Court’s review, all of these actions are fundamentally similar.5 These actions bear the exact same complaint format, font, and generalized language and claim.6 Each action identifies Mr. Donnellan as a prospective relator

with “direct and independent knowledge of, nonpublic information” that each Defendant entity took Paycheck Protection Program (PPP) loans, but continued to operate during April and May 2020.7 Further, prior orders from Judges Kindred and Gleason made extensive

findings about Mr. Donnellan’s recent pattern of filing qui tam actions on behalf of Donald Tangwall, a vexatious litigant.8 For brevity, the Court adopts the findings

(SEALED); 4:22-cv-00060-RRB (SEALED); 4:22-cv-00061-RRB (SEALED); 4:22-cv-00062-RRB (SEALED); 4:22-cv-00063-RRB (SEALED); 4:22-cv-00064-RRB (SEALED); 4:22-cv-00065-RRB (SEALED); 4:22-cv-00066-RRB (SEALED). 5 Compare 4:22-cv-00019-RRB (SEALED) with 4:22-cv-00020-RRB (SEALED); 4:22-cv- 00022-RRB (SEALED); 4:22-cv-00023-RRB (SEALED); 4:22-cv-00024-RRB (SEALED); 4:22-cv- 00025-RRB (SEALED); 4:22-cv-00026-RRB (SEALED); 4:22-cv-00027-RRB (SEALED); 4:22-cv- 00028-RRB (SEALED); 4:22-cv-00029-RRB (SEALED); 4:22-cv-00030-RRB (SEALED); 4:22-cv- 00031-RRB (SEALED); 4:22-cv-00032-RRB (SEALED); 4:22-cv-00032-RRB (SEALED); 4:22-cv- 00033-RRB (SEALED); 4:22-cv-00034-RRB (SEALED); 4:22-cv-00035-RRB (SEALED); 4:22-cv- 00035-RRB (SEALED); 4:22-cv-00036-RRB (SEALED); 4:22-cv-00037-RRB (SEALED); 4:22-cv- 00038-RRB (SEALED); 4:22-cv-00039-RRB (SEALED); 4:22-cv-00040-RRB (SEALED); 4:22-cv- 00041-RRB (SEALED); 4:22-cv-00042-RRB (SEALED); 4:22-cv-00043-RRB (SEALED); 4:22-cv- 00044-RRB (SEALED); 4:22-cv-00045-RRB (SEALED); 4:22-cv-00046-RRB (SEALED); 4:22-cv- 00047-RRB (SEALED); 4:22-cv-00048-RRB (SEALED); 4:22-cv-00049-RRB (SEALED); 4:22-cv- 00050-RRB (SEALED); 4:22-cv-00051-RRB (SEALED); 4:22-cv-00052-RRB (SEALED); 4:22-cv- 00053-RRB (SEALED); 4:22-cv-00054-RRB (SEALED); 4:22-cv-00055-RRB (SEALED); 4:22-cv- 00056-RRB (SEALED); 4:22-cv-00057-RRB (SEALED); 4:22-cv-00058-RRB (SEALED); 4:22-cv- 00059-RRB (SEALED); 4:22-cv-00060-RRB (SEALED); 4:22-cv-00061-RRB (SEALED); 4:22-cv- 00062-RRB (SEALED); 4:22-cv-00063-RRB (SEALED); 4:22-cv-00064-RRB (SEALED); 4:22-cv- 00065-RRB (SEALED); 4:22-cv-00066-RRB (SEALED). 6 Supra note 5. 7 Supra note 5. 8 Judicial notice is the “court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact.” Black’s Law Dictionary (11th ed. 2019); see also Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are of Judge Kindred in Donnellan, et al. v. Birch, Horton, Bitter, Inc., Case No. 3:22- cv-00117-JMK, Docket 4 at 3–6 and Judge Gleason in Donnellan v. Mae, Case

No. 4:22-cv-00016-SLG, Docket 31 at 2–11, and further finds that the above- captioned 47 actions are also part of the recent Donnellan-Tangwall litigation pattern. In the interest of judicial economy, these actions will be evaluated and addressed collectively.

II. Deficient Filings In order to properly commence a civil action, a litigant must either pay the filing fee of $402.00 or file a motion to proceed in forma pauperis.9 A court may not simply waive prepayment of costs and fees, it must review an application and financial affidavit in order to make an appropriate factual finding. Mr. Donnellan

has not paid the filing fee or file a motion to proceed in forma pauperis. Accordingly, these civil actions are deficient. III. Jurisdiction Jurisdiction is “[a] court’s power to decide a case or issue a decree.”10 The United States Supreme Court has established that “the federal courts are under

appropriate for judicial notice.”) (internal quotation marks and citation omitted); see also Fed. R. Evid. 201. 9 Local Civil Rule 3.1(c). 10 BLACK’S LAW DICTIONARY (11th ed. 2019). an independent obligation to examine their own jurisdiction[.]”11 In a federal court proceeding, a jurisdictional defect may be raised at any time.12

A. Standing Article III standing “is the threshold question in every federal case” which determines whether the court has the power to hear a lawsuit.13 The “irreducible constitutional minimum of standing consists of three elements . . . [t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”14 The requirements of standing maintain these jurisdictional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process[.]”15 A plaintiff, as the moving party, bears the burden of establishing standing.16

B. False Claims Act The False Claims Act (FCA) was enacted in 1863 out of concern that suppliers to the Union Army were committing fraud.17 Since its enactment, the FCA has been amended several times, but the core remains the same; it creates

11 United States v. Hays, 515 U.S. 737, 742 (1995). 12 Washington Environmental Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). 13 Warth v. Seldin, 422 U.S. 490, 498 (1975). 14 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2013) (internal punctuation omitted) (citing Lujan v. Def’s of Wildlife, 504 U.S. 555, 560 (1992) and Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). 15 Munns v. Kerry, 782 F.3d 402, 409 (9th Cir. 2015). 16 Id. 17 31 U.S.C. §§ 3729–3733. a cause of action in which a private citizen may sue on behalf of the federal government alleging that a third party is defrauding the federal government. This

type of lawsuit is called a qui tam action and the person who files the suit is referred to as a “relator.”18 To show a violation of the FCA, a relator must provide sufficient factual knowledge that (1) the third party made a specific action against the government, known as a false claim, and (2) the relator knows the third-party knew that their conduct was fraudulent.19 In this context, and by statute, a “false claim”

is defined as a demand for money or property made either directly to the federal government or on the federal government’s behalf, made with knowing intent.20 Specifically, to be liable under the FCA, the third party must have submitted, or caused the submission of, a false claim for monetary payment or property from the federal government with actual knowledge, deliberate ignorance of the truth or falsity of the information, or reckless disregard of the truth or falsity.21

The FCA also limits who may act as a relator, that is, who may file a qui tam action. Specifically, qui tam cases are not permitted where: (1) the relator is self- represented or proceeding pro se;22 (2) the relator was convicted of criminal

18 See 31 U.S.C. § 3730(b). 19 See Fed. R. Civ. P. 9. 20 31 U.S.C. § 3729(b)(2). 21 31 U.S.C. § 3729(b)(1). 22 Stoner et. al. v. Santa Clara County Office of Educ., et al, 502 F.3d 1116, 1125–28 (9th Cir. 2007) (holding that pro se litigants cannot bring qui tam actions as relators, because qui tam relators represent the United States, not just their own individual interests as permitted for pro se litigation under 28 U.S.C. § 1654). conduct arising from his role in the violation;23 (3) another qui tam concerning the same conduct has already been filed;24 (4) the government is already party to a civil or administrative proceeding concerning the same conduct;25 or (5) if the qui

tam is based on information that has already been disclosed to the public.26 As a self-represented plaintiff-relator, Mr. Donnellan has no statutory authority under which he may represent the interests of anyone other than himself, and no authority to represent the interests of the United States.27 In Stoner v.

Santa Clara County Office of Education, the Ninth Circuit Court of Appeals evaluated whether a self-represented litigant may be a qui tam relator. The Ninth Circuit reasoned that 28 U.S.C. § 1654 provided a pro se litigant the right to “plead and conduct their own cases personally.”28 It further reasoned that an FCA qui tam lawsuit represents the interests of the United States and binds the United States “to any adverse judgment the relators may obtain[.]”29 Therefore, qui tam

suits must 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.”30 The Ninth Circuit unambiguously held “that a pro

23 31 U.S.C. § 3730(d)(3). 24 31 U.S.C. § 3730(b)(5). 25 31 U.S.C. § 3730(e)(3). 26 31 U.S.C. § 3730(e)(4)(A). 27 See Stoner et. al. v. Santa Clara County Office of Educ., et al, 502 F.3d 1116, 1125–26 (9th Cir. 2007). 28 28 U.S.C. § 1654; see Stoner, 502 F.3d at 1125–28. 29 Stoner, 502 F.3d at 1127. 30 Stoner, 502 F.3d at 1127 (quoting United States v. Onan, 190 F.2d 1, 6 (8th Cir. 1951)). se relator cannot prosecute a qui tam action on behalf of the United States[.]”31 A qui tam action requires professional legal counsel admitted to practice before the Court in which the action is filed.32

Here, Mr. Donnellan filed the above-captioned 47 civil actions as a self- represented plaintiff-relator attempting to bring suit on behalf of the United States of America. However, Mr. Donnellan may not serve as a relator, because he is a self-represented party. As a self-represented party, Mr. Donnellan does not have

standing to bring this claim. Without standing, this Court does not have jurisdiction over these actions. Therefore, the above-captioned actions must be dismissed. IV. Public Access The False Claims Act requires that a qui tam complaint be filed under seal, and remain so for 60 days, unless the Government moves for an extension with good cause shown.33 Customarily, courts recognize a “general right to inspect and

copy public records and documents, including judicial records and documents.”34 “[A]ccess to judicial records is not absolute,”35 although there is a “strong presumption in favor of access.”36 As established, above these are not proper qui

31 Stoner, 502 F.3d at 1127. 32 Stoner, 502 F.3d at 1125–28. The plaintiff in Stoner was a licensed attorney, however, “he was not a member admitted to practice before the district court as a matter of the court’s local rules,” and thus was proceeding pro se before the court. Id. at 1125–26. 33 31 U.S.C. § 3730(b). 34 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978). 35 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (2006). 36 Foltz v. State Farm Mutual Auto. Insurance Company, 331 F.3d 1122, 1135 (9th Cir. 2003). tam complaints. Accordingly, the Court finds no reason for these complaints to remain under seal. Therefore, the Court unseals these actions and makes them

available for public access in the interest of justice. V. Conclusion The civil actions are deficient for lack of filing fees or motions to proceed in forma pauperis. Even if this deficiency were to be remedied, the Court lacks jurisdiction over this matter because Mr. Donnellan does not have standing to bring

qui tam claims as a self-represented litigant. IT IS THEREFORE ORDERED: 1. These actions are DISMISSED for lack of jurisdiction. 2. The Clerk of Court shall unseal the above-captioned cases. 3. The Clerk of Court shall issue final judgments in the above-captioned

cases. DATED this 5th day of October, 2022, at Anchorage, Alaska.

/s/ Ralph R. Beistline RALPH R. BEISTLINE Senior United States District Judge