CHAILLA USA v. NAVIENT DEPARTMENT OF EDUCATION LLC ECMC LLC CCNM (2019)

SUMMARY ORDER

Appellant Florence Parker Chailla, proceeding pro se, brought this qui tam action on behalf of the United States and California, Connecticut, Florida, and New York under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. The district court dismissed the action because she failed to obtain counsel, and Chailla appeals. Chailla also moves in this Court for leave to file under seal, to file an oversize brief, to amend the caption, and for injunctive relief. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review the dismissal of an action for failure to retain counsel de novo. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 91 (2d Cir. 2008) (reviewing grant of a motion to dismiss for failure to retain counsel); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (affording no deference to a court's sua sponte dismissal of an action for failure to retain counsel). The FCA provides a cause of action against anyone who knowingly submits a false or fraudulent claim for payment to the federal government. The government may bring an FCA action, or a private citizen, known as a “relator,” may bring a qui tam action. 31 U.S.C. § 3730(a), (b). Such an action is brought “for the person and for the United States Government,” and “in the name of the Government.” Id. § 3730(b).

The right to appear pro se in civil litigation in federal court is guaranteed by 28 U.S.C. § 1654, which provides that “parties may plead and conduct their own cases personally or by counsel.” However, a person who is not an attorney and is not represented by an attorney “may not appear on another person's behalf in the other's cause.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (“A person [proceeding pro se] must be litigating an interest personal to him.”). In Mergent Services, this Court held that a non-attorney relator in an FCA qui tam action cannot proceed pro se because, since “the United States remains the real party in interest in qui tam actions, the case, albeit controlled and litigated by the relator, is not the relator's own case as required by 28 U.S.C. § 1654, nor one in which he has an interest personal to him.” 540 F.3d at 93 (internal quotation marks and citation omitted). The record lacks any indication that Chailla herself is an attorney admitted to the practice of law. The district court therefore did not err in dismissing this action after Chailla failed to retain counsel, despite being granted ample opportunity to do so. Although Chailla argues on appeal that appointment of counsel was warranted, Chailla did not move for appointment of counsel in the district court, and the court was not required to sua sponte appoint counsel.

Chailla argues that the district court erred in dismissing the action without the Government's written consent. We disagree. Although the FCA provides that a qui tam action “may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting,” 31 U.S.C. § 3730(b)(1), this provision “applies only in cases where a plaintiff seeks voluntary dismissal of a claim or action brought under the False Claims Act, and not where the court orders dismissal,” Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990).

Chailla's remaining arguments are also unavailing. She claims that the district court was biased against her and that the judge should have recused himself. Contrary to her assertion on appeal, however, the court's decisions were adequately explained, and the timing of the court's decisions does not suggest bias. The court's adverse rulings also do not establish judicial bias. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”). Next, Chailla argues that the defendants are liable to her for Hobbs Act and RICO violations, but she did not raise these claims in her amended complaint, and there is no basis for this Court to consider these claims for the first time on appeal. See In re Petrobras Sec. Litig., Nos. 18-2120, 784 Fed.Appx. 10, 15, 2019 WL 4127327, at *2 (2d Cir. Aug. 30, 2019) (stating that we do “not permit a party to raise an entirely new claim on appeal”). Finally, Chailla's arguments regarding mootness, sovereign immunity, and timeliness are inapposite because the district court dismissed this action solely based on her failure to retain counsel.

We deny Chailla's motions for leave to file under seal, to file an oversize brief, to amend the caption, and for injunctive relief. Contrary to Chailla's contention, the FCA does not require that her filings remain under seal. See 31 U.S.C. § 3730(b)(2) (requiring only that the complaint in an FCA qui tam action be filed under seal for a period of at least 60 days). Her motion to file an oversize brief is moot because she filed a brief that is not oversize; her motion to amend the caption to include the U.S. Department of Education as a defendant is moot because it is already a defendant in this action; and her request for injunctive relief is moot in light of our decision to affirm the judgment.

We have considered all of Chailla's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court and DENY the motions for leave to file under seal, to file an oversize brief, to amend the caption, and for injunctive relief.