United States of America et al v. General Dynamics Information Technology, Inc et al
ORDER: (1) Requiring Plaintiff to Show Cause Why Count 1 Should Not be Dismissed; and (2) Unsealing Action( Order to Show Cause Brief due by 11/3/2021), Order to Unseal Case. Signed by Judge Cynthia Bashant on 10/20/2021.(All non-registered users served via U.S. Mail Service)(anh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA ex rel.,
(1) REQUIRING PLAINTIFF TO
SHOW CAUSE WHY
COUNT 1 SHOULD NOT BE
INFORMATION TECHNOLOGY AND
APEX SYSTEMS, LLC,
Case No. 21-cv-1109-BAS-BLM
(2) UNSEALING ACTION
Plaintiff seeks to prosecute a False Claims Act (“FCA”) qui tam claim on behalf of
the United States as a part of his action.1 (Am. Compl. ¶¶ 118–120, ECF No. 2.) The
United States declined to intervene, pursuant to the FCA, 31 U.S.C. § 3730(b)(4)(B). (ECF
No. 3.) Where, as here, the United States declines to intervene, the person who initiated
Plaintiff also raises a cause of action for retaliation in violation of the FCA, 31 U.S.C. § 3730(h).
(Am. Compl. ¶¶ 121–22.) “There is no question that if Plaintiff has properly pleaded a claim for
retaliation, he is permitted to do so irrespective of the fate of h[is] FCA qui tam claim.” Hayes v. Dep’t
of Educ. of City of New York, 20 F. Supp. 3d 438, 443 (S.D.N.Y. 2014)
the action has the right to conduct the action. Id. § 3730(c)(3). However, a person not
represented by counsel cannot prosecute the qui tam claim on behalf of the United States.
See Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1126–27 (9th Cir. 2007)
(declining to interpret the general pro se provision, 28 U.S.C. § 1654 as allowing qui tam
relators to proceed without the representation of counsel because “qui tam relators are
. . . also representing the United States” and holding that “[t]he FCA itself does not
authorize a relator to prosecute a § 3729 violation pro se”).
unrepresented by counsel, his FCA qui tam claim (“Count 1”) fails as a matter of law. An
amendment of the pleading cannot cure this defect.
Because Plaintiff is
Accordingly, the Court ORDERS Plaintiff to show cause, on or before November
3, 2021, why Count 1 should not be dismissed without leave to amend, but without
prejudice to future refiling by a licensed attorney.
The Court also ORDERS that:
1. The Complaint, the Amended Complaint, the United States’ Notice of
Declination, and this Order be unsealed;
2. The seal be lifted as to all other matters occurring in this action after the date of
3. The parties shall serve all pleadings and motions filed in this action, including
supporting memoranda, upon the United States, as provided for in 31 U.S.C.
§ 3730(c)(3); and
4. All orders of this Court shall be sent to the United States.
IT IS SO ORDERED.
DATED: October 20, 2021
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