Wojcicki v. Scana/Sce&G

• Decision Date: 14 January 2020
• Docket Number: No. 17-2045,17-2045
• Citation: 947 F.3d 240
• Parties: Joseph Edward WOJCICKI, Plaintiff - Appellant, v. SCANA/SCE&G, Defendants – Appellees. United States of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

947 F.3d 240

Joseph Edward WOJCICKI, Plaintiff - Appellant,

v.SCANA/SCE&G, Defendants – Appellees.

United States of America, Amicus Curiae.

No. 17-2045

United States Court of Appeals, Fourth Circuit.

Argued: September 20, 2019

Decided: January 14, 2020

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.

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.

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 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 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 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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.

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, 120 S.Ct. 1858, 146 L.Ed.2d 836 (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, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (citing 28 U.S.C. § 1654 ). "The right to litigate for oneself , however, does not create a coordinate right to 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), ...