USA Ex. Rel Stoner v. Santa Clara

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)).