USA Ex. Rel Stoner v. Santa Clara ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DAVID STONER, individually; 
UNITED STATES OF AMERICA, Ex
Rel. John David Stoner,
Plaintiffs-Appellants,
and
THE STATE OF CALIFORNIA; No. 04-15984
COUNTY OF SANTA CLARA,
Plaintiffs,  D.C. No.
CV-03-04622-JW
v.
OPINION
SANTA CLARA COUNTY OFFICE OF
EDUCATION; EAST SIDE UNION HIGH
SCHOOL DISTRICT; COLLEEN B.
WILCOX; JOE FIMIANI; DAVID
WONG,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
May 17, 2007—San Francisco, California
Filed September 7, 2007
Before: Diarmuid F. O’Scannlain and Sandra S. Ikuta,
Circuit Judges, and Leonard B. Sand,* Senior District Judge.
*The Honorable Leonard B. Sand, Senior United States District Judge
for the Southern District of New York, sitting by designation.
11921
11922 STONER v. SANTA CLARA COUNTY
Opinion by Judge Ikuta
11924 STONER v. SANTA CLARA COUNTY
COUNSEL
John David Stoner, Sunnyvale, California, for himself.
Peter D. Keisler, Assistant Attorney General; Kevin V. Ryan,
United States Attorney; Douglas N. Letter, Appellate Litiga-
STONER v. SANTA CLARA COUNTY 11925
tion Counsel, Civil Division, U.S. Department of Justice,
Washington, D.C., as amicus curiae, by special leave of court.
Mark E. Davis and Marc J. Cardinal, Needham, Davis, Kir-
wan & Young LLP, San Jose, California, for the appellees.
OPINION
IKUTA, Circuit Judge:
Under the False Claims Act (“FCA”), “[a]ny person” who,
among other things, "knowingly presents, or causes to be
presented, to an officer or employee of the United States Gov-
ernment . . . a false or fraudulent claim for payment or
approval” is liable to the Government for a civil penalty, tre-
ble damages, and costs. 31 U.S.C. § 3729(a)(1). The FCA
authorizes a private person, known as a relator, to bring a qui
tam civil action “for a violation of section 3729 for the person
and for the United States Government. . . . in the name of the
Government.” 31 U.S.C. § 3730(b)(1). This case requires us
to decide whether a pro se relator may bring a qui tam action
in federal court on behalf of the government against various
actors in the California school system.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in part, reverse in part, and remand for further proceed-
ings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant John David Stoner brought this qui tam action in
the United States District Court for the Northern District of
California against the Santa Clara County Office of Education
(“SCCOE”), his former employer, the East Side Union High
School District (“ESUHSD”), and three SCCOE employees,
Colleen Wilcox, Joe Fimiani, and David Wong. In the pro-
11926 STONER v. SANTA CLARA COUNTY
ceedings before the district court, Stoner appeared pro se.
Although Stoner is a licensed attorney, and has been admitted
to practice before this court, see Fed. R. App. Proc. 46(a), he
is not a member of the State Bar of California, and conse-
quently could not be admitted to membership before the dis-
trict court for the Northern District of California, see Northern
District of California, Civil Local Rule 11-1. Stoner’s com-
plaint alleged that defendants presented various fraudulent
claims for payment or approval to the United States in viola-
tion of the False Claims Act (“FCA”). Specifically, he
claimed that defendants falsely certified compliance with the
Individuals with Disabilities Education Act to induce the gov-
ernment to disburse more money for certain educational pro-
grams. Stoner’s complaint also raised a number of state law
claims, including alleged violations of the California False
Claims Act.
As required by the FCA, Stoner filed his complaint under
seal and served it on the United States. See 31 U.S.C.
§ 3730(b)(2). After the United States declined to intervene,
the complaint was unsealed and served on the SCCOE. The
SCCOE immediately moved to dismiss the claims against it,
arguing, among other things, that it was not a “person” subject
to liability under the FCA. The remaining defendants joined
in that motion.
The district court granted the motion to dismiss after deter-
mining that the complaint failed to state a claim under the
FCA. See Fed. R. Civ. P. 12(b)(6). The court held that the
FCA did not provide a cause of action against the SCCOE and
the ESUHSD because each entity is a state agency, and thus
not a “person” subject to liability under the FCA. See Vt.
Agency of Natural Res. v. United States ex rel. Stevens, 529
U.S. 765, 787-88 (2000) (holding that the FCA does not sub-
ject a state or state agency to liability in a qui tam action
brought by a private relator). Relying on United States ex rel.
McVey v. Board of Regents of the University of California,
165 F. Supp. 2d 1052, 1058-59 (N. D. Cal. 2001), the court
STONER v. SANTA CLARA COUNTY 11927
also held that Stoner could not sue the individual SCCOE
employees in their personal capacities under the FCA for
actions committed in the course of their official responsibili-
ties. In addition, the court sua sponte raised the issue of Ston-
er’s authority to prosecute a qui tam action on behalf of the
United States in propria persona and held that Stoner could
not proceed pro se1 on the FCA claims. The court then
declined to exercise supplemental jurisdiction over Stoner’s
remaining state law claims and dismissed Stoner’s complaint
in its entirety. Stoner filed this timely appeal. See Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th
Cir. 2001) (noting that a motion to dismiss becomes a final
appealable order within the meaning of 28 U.S.C. § 1291
when the district court order disposes of all claims against all
parties).2
STANDARDS OF REVIEW
"A dismissal for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) is reviewed de novo.”
Marder, 450 F.3d at 448. “All allegations of material fact in
the complaint are taken as true and construed in the light most
favorable to the plaintiff. Dismissal of the complaint is appro-
priate only if it appears beyond doubt that the plaintiff can
1
The phrases in propria persona and pro se are synonymous. See
Black’s Law Dictionary 1256 (8th ed. 2004); see also Savage v. Estelle,
924 F.2d 1459, 1460 n.1 (9th Cir. 1990) (“no legal distinction” between
the phrases in the context of self-representation).
2
Prior to oral argument in this case, Stoner filed a request for judicial
notice of certain documents not part of the record on this appeal. The
defendants oppose Stoner’s request on the grounds that the documents
submitted are unauthenticated, lack foundation, and do not satisfy the
requirements of Rule 201 of the Federal Rules of Evidence. Because the
documents at issue do not fall within the narrow exception to the general
rule that the scope of this court’s review on a motion to dismiss for failure
to state a claim is limited to the contents of the complaint, see Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Stoner’s request for judicial
notice is denied.
11928 STONER v. SANTA CLARA COUNTY
prove no set of facts in support of the claim which would enti-
tle him to relief.” McGary v. City of Portland, 386 F.3d 1259,
1261 (9th Cir. 2004) (internal citation omitted).
Questions of statutory interpretation and the existence of
sovereign immunity are also reviewed de novo. United States
ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1213 (9th Cir.
1996); United States ex rel. Ali v. Daniel, Mann, Johnson &
Mendenhall, 355 F.3d 1140, 1144 (9th Cir. 2004).
DISCUSSION
I.
We first address the question whether school districts in
California, including county offices of education, are subject
to qui tam liability under the FCA. We begin our analysis
with the language of the statute itself. The FCA subjects to
liability any “person” who, among other things, "knowingly
presents, or causes to be presented, to an officer or employee
of the United States Government . . . a false or fraudulent
claim for payment or approval.” 31 U.S.C. § 3729(a). Section
3729 does not define the term “person.” However, Stevens
held that a state or state agency is not a “person” for purposes
of § 3729 and, therefore, not subject to liability in qui tam
suits brought by private parties. 529 U.S. at 787-88.
[1] In light of Stevens’ holding, we must determine whether
the SCCOE, a California county office of education, and the
ESUHSD, a California school district, are state agencies.
Although we have not yet considered this issue in the context
of the FCA, we previously determined that a California school
district and county office of education were state agencies for
purposes of Eleventh Amendment sovereign immunity.
Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254
(9th Cir. 1992); Eaglesmith v. Ward, 73 F.3d 857, 860 (9th
Cir. 1996). The district court looked to these cases in ruling
STONER v. SANTA CLARA COUNTY 11929
that neither the SCCOE nor the ESUHSD was a “person”
within the meaning of 31 U.S.C. § 3279.
[2] We agree with the district court’s approach. As
explained below, Stevens teaches that our Eleventh Amend-
ment case law should guide our determination of whether an
entity is a state agency and thus not a “person” for purposes
of § 3279. Stevens’ analysis of the word “person” in § 3279
was driven by canons of statutory construction relating to pro-
tection of the state’s sovereign immunity. See Stevens, 529
U.S. at 781-87. Specifically, Stevens based its holding that
neither a state nor a state agency were “persons” within the
meaning of § 3279 on the following canons of statutory con-
struction related to state sovereignty: (1) the presumption that
the term “person” does not include the sovereign, id. at 780;
(2) the rule that Congress must clearly state its intention to
subject states to liability, id. at 781-82, 787; (3) the presump-
tion against imposition of punitive damages on governmental
entities, id. at 784-85; and (4) "the ordinary rule of statutory
construction that if Congress intends to alter the usual consti-
tutional balance between States and the Federal Government,
it must make its intention to do so unmistakably clear in the
language of the statute,” id. at 787. Applying these canons,
the Court observed that “far from providing the requisite affir-
mative indications that the term ‘person’ included States for
purposes of qui tam liability,” Congress expressed a contrary
intent. Id. This conclusion was buttressed by “the doctrine
that statutes should be construed so as to avoid difficult con-
stitutional questions.” Id. With respect to this last point, the
Supreme Court explained that there was “’a serious doubt’ ”
on the question whether an action in federal court by a qui
tam relator against a state or a state agency would be consis-
tent with the Eleventh Amendment, id. (quoting Ashwander v.
TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)),
although the Court was careful to “express no view” on this
issue. Id. In effect, the Court presumed that in enacting the
FCA, Congress intended not to infringe on a state’ s sovereign
11930 STONER v. SANTA CLARA COUNTY
immunity and therefore did not make states subject to suit
under the FCA.
To effectuate Congress’s presumed intent, we must inter-
pret the term “person” under § 3279 in a way that avoids suits
against “state instrumentalities” that are effectively arms of
the state immune from suit under the Eleventh Amendment.
See also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70
(1989) (instructing lower courts to refer to the Eleventh
Amendment arm-of-the-state analysis in determining whether
an entity is an agency of the state and thus not a “person” for
purposes of 42 U.S.C. § 1983 (citing Mt. Healthy Bd. of Educ.
v. Doyle, 429 U.S. 274, 280 (1977))). Our conclusion that we
must rely on our Eleventh Amendment jurisprudence to deter-
mine whether an entity is a “person” within the meaning of
§ 3279 is further underlined by our post-Stevens holding that
“states and state agencies enjoy sovereign immunity from lia-
bility under the FCA.” Bly-Magee v. California, 236 F.3d
1014, 1017 (9th Cir. 2001); see also United States ex rel. Ali
v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140,
1145 (9th Cir. 2004). Both Bly-Magee and Ali implicitly rec-
ognize that Eleventh Amendment principles guided the
Supreme Court’s decision in Stevens.
[3] We thus look to our Eleventh Amendment case law in
determining whether the SCCOE and the ESUHSD are state
agencies not subject to FCA liability under Stevens. We have
held that a California school district and county office of edu-
cation are arms of the state for purposes of Eleventh Amend-
ment sovereign immunity. Belanger, 963 F.2d at 254;
Eaglesmith, 73 F.3d at 860. Accordingly, we must conclude
that neither the SCCOE nor the ESUHSD is a “person” sub-
ject to liability under § 3279 of the FCA. Stevens, 529 U.S. at
781-87. By the same reasoning, Stoner’s qui tam action
against the SCCOE and the ESUHSD is barred by the Elev-
enth Amendment. Ali, 355 F.3d at 1145; Bly-Magee, 236 F.3d
at 1017.
STONER v. SANTA CLARA COUNTY 11931
Stoner asks us to revisit Belanger and Eaglesmith in light
of Regents of the University of California v. Doe, 519 U.S.
425 (1997), which was decided by the Supreme Court five
years after Belanger. He contends that after Regents, a state
agency is not shielded by the state’s sovereign immunity
unless the state is directly liable for any money judgment ren-
dered against the agency. We disagree. Regents holds that the
Eleventh Amendment may bar a lawsuit against a state
agency in circumstances where the state is legally liable for
a judgment against that agency, even if the state is indemni-
fied against that liability by a third party. Id. at 426. But noth-
ing in Regents requires us to depart from the well-established
Eleventh Amendment principle that a governmental entity
may be an arm of the state protected by sovereign immunity
where the state is functionally liable, even if not legally liable,
on money judgments against the state entity. See, e.g., Hess
v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 50 (1994)
(“Where an agency is so structured that, as a practical matter,
if the agency is to survive, a judgment must expend itself
against state treasuries, common sense and the rationale of the
eleventh amendment require that sovereign immunity attach
to the agency.” (internal quotation marks omitted)); Lake
Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440
U.S. 391, 401 (1979) (The Eleventh Amendment “protect[s]
the state treasury from liability that would have had essen-
tially the same practical consequences as a judgment against
the State itself.” (emphasis added)). In decisions issued after
Regents, we held that California school districts and county
offices of education are entitled to the state’s Eleventh
Amendment immunity, due in part to their statutorily man-
dated relationship with the state, which (among other things)
makes the state treasury unconditionally liable to make up any
budgetary shortfall encountered by either entity as a result of
an adverse judgment. See Beentjes v. Placer County Air Pol-
lution Control Dist., 397 F.3d 775, 780-81 (9th Cir. 2005);
Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1183 (9th
Cir. 2003); Savage v. Glendale Union High Sch. Dist. No.
205, 343 F.3d 1036, 1042 (9th Cir. 2003); Eason v. Clark
11932 STONER v. SANTA CLARA COUNTY
County Sch. Dist., 303 F.3d 1137, 1142 (9th Cir. 2002). These
cases make clear that Belanger and Eaglesmith remain bind-
ing authority of this circuit following Regents.
[4] Following Belanger and Eaglesmith, therefore, we hold
that the SCCOE and the ESUHSD are arms of the state, and
therefore not “persons” subject to qui tam liability under the
FCA. Stoner thus has no statutory authority to bring an FCA
claim against the SCCOE and the ESUHSD. See 31 U.S.C.
§ 3729(a); Stevens, 529 U.S. at 787-88. By the same token,
the Eleventh Amendment poses an independent bar to qui tam
action against either entity. Bly-Magee, 236 F.3d at 1017.
Accordingly, the district court properly dismissed Stoner’s
FCA claims against both entities.
II.
We next turn to the district court’s dismissal of the FCA
claims asserted against the three individual SCCOE employ-
ees named in Stoner’s complaint. While Stoner’s complaint
does not specify the capacity in which he was suing Wilcox,
Fimiani, and Wong, “[t]he course of proceedings “ in this case
indicates that Stoner was suing these employees in their indi-
vidual, as well as official capacities. See Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985) (“In many cases, the complaint
will not clearly specify whether officials are sued personally,
in their official capacity, or both. ‘The course of proceedings’
in such cases typically will indicate the nature of the liability
sought to be imposed.” (quoting Brandon v. Holt, 469 U.S.
464, 469 (1985))). With respect to the official capacity claims,
the district court held that the individually named defendants
could not be sued for damages in their official capacities
because such a suit would, in effect, be against the state. See
Will, 491 U.S. at 71 (concluding that a state official sued in
his or her official capacity for money damages is not a “per-
son” subject to suit under 42 U.S.C. § 1983 because “a suit
against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s
STONER v. SANTA CLARA COUNTY 11933
office,” and for this reason “is no different from a suit against
the State itself” ). The parties do not challenge this ruling and
we express no opinion on the merits of the district court’s
conclusion.
[5] The district court also held that Stoner failed to state an
FCA claim against the individual defendants in their personal
capacities because Stoner could not allege that the defendants’
actions exceeded the scope of their official responsibilities.
As explained below, this was an error. The plain language of
the FCA subjects to liability “any person” who, among other
things, knowingly submits a false claim or causes such a
claim to be submitted to the United States. 31 U.S.C. § 3729.
Although the FCA does not define the term “person,” the
Supreme Court has made clear that the term includes “natural
persons.” Cook County v. United States ex rel. Chandler, 538
U.S. 119, 125 (2003); see also 1 U.S.C. § 1 (defining the term
“person” for purposes of “determining the meaning of any
Act of Congress” as including an individual). Therefore, state
employees sued in their personal capacities are “persons” who
may be subject to liability for submitting a false claim to the
United States. Cf. Hafer v. Melo, 502 U.S. 21, 27 (1991) (con-
cluding, in context of case filed pursuant to 42 U.S.C. § 1983,
that “[a] government official in the role of personal-capacity
defendant . . . fits comfortably within the statutory term ‘per-
son’ ”).
[6] To state a claim against Wilcox, Fimiani, and Wong in
their personal capacities, Stoner need show only that the indi-
vidual employees “knowingly present[ed], or cause[d] to be
presented, to an officer or employee of the United States Gov-
ernment . . . a false or fraudulent claim for payment or
approval.” 31 U.S.C. § 3729(a)(1). Stoner’s complaint alleged
that Wilcox, Fimiani, and Wong knowingly presented or
caused to be presented false or fraudulent statements to the
United States Department of Education to obtain federal funds
for various educational programs. If true, these allegations are
sufficient to state a claim for personal liability under 31
11934 STONER v. SANTA CLARA COUNTY
U.S.C. § 3729(a)(1). Stoner need not allege that the individual
defendants personally profited from such false submissions.
Nothing in § 3729(a)(1) requires the person knowingly mak-
ing a false submission to obtain a personal benefit from the
wrongful act.
In dismissing the FCA claims against Wilcox, Fimiani, and
Wong, the district court relied on McVey, 165 F. Supp. 2d at
1058-59, which held that “[u]nder the FCA, a state official is
immune from suit for actions taken in his position,” even
where it is alleged that the official abused his authority. Id. at
1059; see also United States ex rel. Gaudineer & Comito,
L.L.P. v. Iowa, 269 F.3d 932, 937 (8th Cir. 2001) (holding
that state official could not be sued under the FCA in his indi-
vidual capacity unless he was acting “outside his official
duties” when he took the action alleged to violate the FCA
(quoting Bly-Magee, 236 F.3d at 1016)). We disagree with
McVey and Gaudineer to the extent the reasoning of these
cases cannot be reconciled with the plain language of the stat-
ute.
Our conclusion is supported by the Supreme Court’s deci-
sion in Hafer, which rejected the argument that state officials
may not be held personally liable under 42 U.S.C. § 1983 for
actions taken in their official capacities. 502 U.S. at 27-31.
The Court reasoned that to hold otherwise would, in effect,
“absolutely immunize state officials from personal liability
for acts within their authority and necessary to fulfilling gov-
ernmental responsibilities.” Id. at 28. The Court noted that
such absolute immunity extends only to a very limited class
of officials, “including the President of the United States, leg-
islators carrying out their legislative functions, and judges
carrying out their judicial functions.” Id. at 29 (citing Harlow
v. Fitzgerald, 457 U.S. 800, 807 (1982)).
[7] Hafer’s reasoning is equally applicable to our interpre-
tation of the FCA. The individual defendants named in Ston-
er’s complaint do not fall into the narrow class of officials
STONER v. SANTA CLARA COUNTY 11935
entitled to absolute immunity. Were we to interpret § 3729 to
preclude an action against state officials in their personal
capacities, our holding would be tantamount to a grant of
absolute immunity under the FCA to state officials for any
actions taken in the course of their governmental responsibili-
ties. See Hafer, 502 at 27-29. Such an interpretation finds no
support in the statutory language. It is also contrary to the
principles of the Supreme Court’s well-established public
employee immunity jurisprudence. Id. at 29 (citing Harlow,
457 U.S. at 807); see also United States ex rel. Burlbaw v.
Regents of N.M. State Univ., 324 F. Supp. 2d 1209, 1215
(D.N.M. 2004). We decline to adopt an interpretation of
§ 3729 that is at odds with the statutory language and clear
guidance from the Supreme Court. We therefore hold that
state employees may be sued in their individual capacities
under the FCA for actions taken in the course of their official
duties.3
[8] The individual defendants challenge this straightfor-
ward conclusion by contending that it permits an end-run
around Stevens and the Eleventh Amendment. They argue that
a relator precluded from asserting a qui tam action against a
state agency could bring the same action against individual
state employees in their personal capacity. We find this argu-
ment unpersuasive. An individual capacity suit for damages
against state officials alleged to have personally violated
§ 3729 does not implicate the principles of state sovereignty
protected by Stevens and our Eleventh Amendment jurispru-
dence because such an action seeks damages from the individ-
ual defendants rather than the state treasury. See Alden v.
Maine, 527 U.S. 706, 757 (1999). Nor does the fact that a
state may choose to indemnify the employees for any judg-
3
Of course, state employees sued under the FCA may be entitled to
qualified immunity. Any personal immunity defenses that may be avail-
able to Wilcox, Fimiani, and Wong, including the defense of qualified
immunity, are not before us in this stage of the proceedings where the
defendants have not yet filed an answer.
11936 STONER v. SANTA CLARA COUNTY
ment rendered against them bring the Eleventh Amendment
into play. See Demery v. Kupperman, 735 F.2d 1139, 1147-
1148 (9th Cir. 1984) (state may not impart sovereign immu-
nity, and thereby prevent vindication of federal rights in fed-
eral court, by adopting an indemnification policy). As the
Supreme Court explained, “the distinction between official-
capacity suits and personal-capacity suits is more than ‘a mere
pleading device.’ ” Hafer, 502 U.S. at 27 (quoting Will, 491
U.S. at 71). Where a plaintiff seeks to hold individual
employees personally liable for their knowing participation in
the submission of false or fraudulent claims to the United
States government, the state is not the real party in interest,
see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
101 (1984), and the Eleventh Amendment poses no barrier to
such a suit. Hafer, 502 U.S. at 30-31.
[9] To summarize, we hold that state officials, sued for
damages in their individual capacities, are “persons” within
the meaning of 31 U.S.C. § 3729. The Eleventh Amendment
does not bar such suits. Accordingly, the district court erred
in holding that Stoner had failed to state a claim under § 3729
against Wilcox, Fimiani, and Wong, in their personal capac-
ity.
III.
[10] Finally, we must address the district court’s determina-
tion that Stoner could not proceed pro se on this FCA action.
As noted above, although Stoner is an attorney, he was not a
member admitted to practice before the district court as a mat-
ter of the court’s local rules. It has long been established that
an individual wanting to prosecute or defend an action in fed-
eral court must be represented by a lawyer admitted to prac-
tice before that court, unless such individual is permitted to
proceed pro se under 28 U.S.C. § 1654 or other federal law,
see C.E. Pope Equity Trust v. United States, 818 F.2d 696,
697-98 (9th Cir. 1987), or is himself an attorney granted pro
hac vice admission. Stoner did not secure pro hac vice admis-
STONER v. SANTA CLARA COUNTY 11937
sion, but sought to proceed pro se. The general pro se provi-
sion set forth in 28 U.S.C. § 1654 provides that “[i]n all courts
of the United States the parties may plead and conduct their
own cases personally or by counsel . . . .” While this provision
allows Stoner to prosecute his own actions in propria per-
sona, that right is personal to him, and absent some other stat-
utory authorization, Stoner has no authority to prosecute an
action in federal court on behalf of others than himself. C.E.
Pope Equity Trust, 818 F.2d at 697.
However, this is exactly what Stoner seeks to do. Stoner
has brought this action pursuant to 31 U.S.C. § 3730(b)(1),
which provides that a “person,” known as the relator, “may
bring a civil action for a violation of section 3729 for the per-
son and for the United States Government . . . in the name of
the Government.” 31 U.S.C. § 3730(b)(1) (emphasis added).
As this court has explained, “the entire purpose of the FCA’s
qui tam provisions is to employ the help of individuals to
uncover fraud against the government.” United States ex rel.
Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993). To this
end, the FCA motivates “a private individual [to] bring suit in
federal court on behalf of the United States” by effecting a
partial assignment of the government’s damages claim to the
relator. Stevens, 529 U.S. at 768 (emphasis added).
[11] Although the partial assignment allows the relator
asserting the government’s injury to satisfy the requirements
of Article III standing, it does not transform a qui tam action
into the relator’s “own case” for purposes of § 1654. The FCA
makes clear that notwithstanding the relator’s statutory right
to the government’s share of the recovery, the underlying
claim of fraud always belongs to the government. See 31
U.S.C. § 3730(c)(5) (providing that “the Government may
elect to pursue its claim through any alternate remedy”
(emphasis added)). Accordingly, where the government
chooses not to intervene, a relator bringing a qui tam action
for a violation of § 3729 is representing the interests of the
government and prosecuting the action on its behalf. See 31
11938 STONER v. SANTA CLARA COUNTY
U.S.C. § 3730(b)(1); see also United States v. Schimmels (In
re Schimmels), 127 F.3d 875, 882 (9th Cir. 1997) ("[T]he
‘United States is the real party in interest in any False Claims
Act suit, even when it permits a qui tam relator to pursue the
action on its behalf.’ ” (quoting United States ex rel. Milam
v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 50
(4th Cir. 1992))); Kelly, 9 F.3d at 743 (“The express language
of the FCA gives relators the right to bring suit on behalf of
the government.” (emphasis added)). Nor does the FCA “sup-
port a finding that the government and the relators can pursue
their interests . . . separately,” Schimmels, 127 F.3d at 884,
such that relators could bring their “own case” without bind-
ing the government. Rather, the United States “is bound by
the relator’s actions” for purposes of res judicata and collat-
eral estoppel. Id.; see also United States ex rel. Rockefeller v.
Westinghouse Elec. Co., 274 F. Supp. 2d 10, 16 (D.D.C.
2003); United States ex rel. Schwartz v. TRW Inc., 118 F.
Supp. 2d 991, 996 (C.D. Cal. 2000). Because qui tam relators
are not prosecuting only their “own case” but also represent-
ing the United States and binding it to any adverse judgment
the relators may obtain, we cannot interpret § 1654 as autho-
rizing qui tam relators to proceed pro se in FCA actions.
[12] Because the general pro se provision, 28 U.S.C.
§ 1654, does not authorize Stoner to proceed pro se on behalf
of the government, Stoner must identify an alternate source of
authority granting him this privilege. This Stoner has failed to
do. The FCA itself does not authorize a relator to prosecute
a § 3729 violation pro se. While the FCA gives a relator the
“right to conduct the action,” 31 U.S.C. § 3730(c)(3), Stoner
can point to no language enabling a relator to conduct the
action without a licensed attorney. Given the fact that Con-
gress did not expressly authorize a qui tam relator to proceed
pro se when acting on behalf of the United States, it “must
have had in mind that such a suit would be carried on in
accordance with the established procedure which requires that
only one licensed to practice law may conduct proceedings in
STONER v. SANTA CLARA COUNTY 11939
court for anyone other than himself.” United States v. Onan,
190 F.2d 1, 6 (8th Cir. 1951).
The Supreme Court’s recent decision in Winkelman v.
Parma City School District, 127 S. Ct. 1994 (2007), does not
suggest a contrary conclusion. Winkelman considered whether
the parents of a child covered by the Individuals with Disabil-
ities Education Act (“IDEA”) could proceed pro se in federal
court to enforce IDEA’s guarantee of a free appropriate public
education for their child. Id. at 2000-05. The central question
in Winkelman was whether IDEA grants parents the same
independent substantive right to a free appropriate public edu-
cation as it does their child, and thus whether unrepresented
parents would be proceeding on their own behalf or on behalf
of their child in an action to enforce this right in federal court.
Id. at 1998. After examining IDEA’s statutory scheme, the
Court held that the parents could bring such an action pro se
pursuant to 28 U.S.C. § 1654 because IDEA gives the parents
their own “independent, enforceable” right to the substantive
adequacy of their child’s education. Id. at 2005.
While Winkelman reaffirms that pro se plaintiffs are enti-
tled to enforce their own independent rights in federal court
under § 1654, it has no direct application here because the
FCA makes clear that a relator brings a qui tam suit on behalf
of the government. Unlike IDEA, which allows parents to
proceed on their own behalf to vindicate their substantive
right to a free appropriate public education for their child, the
substantive right underlying the FCA action is the govern-
ment’s right not to be defrauded. See Stevens, 529 U.S. at 771
(The relator “is suing to remedy an injury in fact suffered by
the United States.”). The relator’s interest in the lawsuit is
limited to certain procedural guarantees, in addition to the
“bounty” the relator will receive for successfully assisting the
government in vindicating the government’s substantive
rights. See Stevens, 529 U.S. at 772. Stoner’s reliance on Win-
kelman in the context of the FCA is thus misguided.
11940 STONER v. SANTA CLARA COUNTY
[13] Our conclusion that a pro se relator cannot prosecute
a qui tam action on behalf of the United States is consistent
with the decisions of other circuits to have addressed the
issue. See United States ex rel. Lu v. Ou, 368 F.3d 773, 775-
76 (7th Cir. 2004); see also Safir v. Blackwell, 579 F.2d 742,
745 n.4 (2d Cir. 1974); United States v. Onan, 190 F.2d 1, 6
(8th Cir. 1951).
In an effort to distinguish these cases, Stoner argues that he
is not truly proceeding pro se because the FCA grants the
government a degree of oversight over the action, see 31
U.S.C. § 3730(c)(3). We are not persuaded. Unless it inter-
venes or moves to dismiss, the United States has little control
over the conduct of the action. See generally 31 U.S.C.
§ 3730. For purposes of 28 U.S.C. § 1654, an unrepresented
relator is not transformed into a relator represented by counsel
merely because the government has some oversight of the
case. The strong policy considerations underlying the general
rule that parties may not represent the interests of others in
federal court support our conclusion that the government’s
minimal oversight does not overcome Stoner’s pro se status.
In cases as complicated as qui tam actions, a licensed attorney
is best equipped to present the complex legal and factual
issues involved and “[a] federal court rightly expects a lawyer
to represent a litigant.” C.E. Pope Equity Trust, 818 F.2d at
697.
[14] We therefore agree with the district court that Stoner
is not entitled to proceed pro se in his action. In the dismissal
order from which this case arises, the district court ruled that
Stoner would be given a period of time in which to secure
counsel if this action otherwise survived the defendants’
motion to dismiss. Because we conclude that Stoner has stated
a claim under the FCA against the individual defendants, we
remand this case to the district court with instruction to give
Stoner reasonable time to find counsel or, in the alternative,
obtain pro hac vice admission. If Stoner fails to retain counsel
STONER v. SANTA CLARA COUNTY 11941
or obtain pro hac vice admission, the district court should dis-
miss this action, without prejudice to the government.
IV.
For the reasons discussed above, we reverse the district
court’s ruling dismissing the FCA claims against the individ-
ual defendants named in Stoner’s complaint.4 We otherwise
affirm the rulings of the district court. We remand this case
for further proceedings consistent with this opinion. Each
party shall bear its own costs on appeal. See Fed. R. App. P.
39(a)(4).
AFFIRMED in part; REVERSED in part; REMANDED.
4
The defendants also contend that Stoner’s complaint fails to allege an
actionable false certification upon which federal funding was conditioned.
See United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1267 (9th Cir.
1996) (“Violations of laws, rules, or regulations alone do not create a
cause of action under the FCA. It is the false certification of compliance
which creates liability when certification is a prerequisite to obtaining a
government benefit.”). The district court did not address this argument and
we decline to resolve it here without giving the district court the opportu-
nity to do so in the first instance. See Foti v. City of Menlo Park, 146 F.3d
629, 638 (9th Cir. 1998) (“Generally, we do not consider an issue not
passed upon below.” (internal quotation marks omitted)).