UNITED STATES ex rel. FRIEDRICH L U v. David W. O U

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3481
U NITED S TATES ex rel. F RIEDRICH L U ,
Plaintiff-Appellant,
v.
D AVID W. O U , et al.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 C 8127—Harry D. Leinenweber, Judge.
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S UBMITTED A PRIL 19, 2004—D ECIDED M AY 18, 2004
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Before POSNER , E VANS , and W ILLIAMS , Circuit Judges.
P OSNER , Circuit Judge. Friedrich Lu brought a qui tam
action under the False Claims Act, see 31 U.S.C. §§ 3729,
3730(b)(1), against Dr. David Ou, a pathologist who had
been Lu’s faculty advisor when Lu was a doctoral candidate
at the University of Illinois at Chicago, and fourteen of Ou’s
colleagues. Until recently Ou was also on the staff of a
veterans hospital, and the suit charges that for years he’s
been collaborating with the other defendants to publish
scholarly articles based on fabricated medical research and
to use these spurious publications to defraud the Veterans

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2 No. 03-3481
Administration. The suit also charges that the defendants
gave legitimate researchers free use of laboratory equipment
at the veterans hospital in exchange for being credited as
joint authors of those researchers’ articles. The district court
initially dismissed the suit, without prejudice, because it
found “Lu’s complaint to be incoherent and . . . [was]
unable to discern any claims actionable under the False
Claims Act.” When Lu failed to file an amended complaint,
the district court converted its dismissal into one with
prejudice, precipitating this appeal.
A qui tam action is brought by a private party, called the
“relator,” on behalf of the government. If a qui tam suit
under the False Claims Act succeeds, the relator obtains a
reward of 25 to 30 percent of the judgment or settlement. 31
U.S.C. § 3730(d)(2). The government gets the rest. Because
the government thus has the primary stake in the suit, it is
empowered to take it over and prosecute it itself. The com-
plaint is initially filed under seal and served only on the
government, which then has 60 days in which to inform the
district court that it plans to take over the prosecution of the
suit. § 3730(b)(4).
Lu paid the filing fee and submitted his complaint to the
district court under seal. Nothing happened for almost a
year. Eventually the district judge unsealed the complaint
and dismissed it as recounted above. So far as appears, the
government was never served (which suggests another basis
for dismissal); in any event it has not participated in the
litigation either in the district court or in this court.
Lu filed his notice of appeal 45 days after the entry of the
final judgment in the district court, and the initial question
that the appeal presents—one we haven’t had occasion to
consider previously—is whether the notice of appeal in a
qui tam suit in which the government has not appeared
must be filed within 30 days, the deadline in private suits,

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No. 03-3481 3
or 60 days, the deadline in suits to which the federal gov-
ernment is a party. Fed. R. App. P. 4(a)(1). In United States
ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588
F.2d 1327 (10th Cir. 1979) (per curiam), the Tenth Circuit
held by a divided vote that even though the government is
a named party in a qui tam suit, once it has declined to
participate its presence in the suit is “merely a statutory
formality” and therefore the shorter appellate time limit
applies, at least in the absence of “other circumstances
which indicate a need for more than the usual 30 days to
make the appeal,” id. at 1329 (a very curious qualification,
we note parenthetically, to graft onto a jurisdictional stat-
ute). The Fifth and Ninth Circuits disagree with the Tenth.
United States ex rel. Russell v. Epic Healthcare Management
Group, 193 F.3d 304 (5th Cir. 1999); United States ex rel.
Haycock v. Hughes Aircraft Co., 98 F.3d 1100 (9th Cir. 1996).
They point out that even if the government decides not to
annex the lawsuit, it still can insist on receiving copies of all
pleadings and depositions, 31 U.S.C. § 3730(c)(3), is free to
pursue alternative remedies, § 3730(c)(5), and, most impor-
tant, receives the lion’s share of any recovery regardless of
who conducts the litigation. §§ 3730(d)(1), (2). These
decisions also note the trap for the unwary that would be
created by giving Rule 4(a)(1) a nonliteral interpretation,
and the desirability of avoiding uncertain inquiries (what is
the named party’s real interest in the case?) to determine
jurisdiction. See also United States ex rel. Petrofsky v. Van
Cott, Bagley, Cornwall, McCarthy, supra, 588 F.2d at 1327
(dissenting opinion); United States v. American Society of
Composers, Authors & Publishers, 331 F.2d 117, 119 (2d Cir.
1964) (Friendly, J.). And if the United States is not a
party—if Lu is the only party—then what is his standing to
litigate a violation of the False Claims Act? The United
States is a party, and that ought to be the end of the inquiry;
Lu’s notice of appeal filed within the 60-day time limit was
timely.

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4 No. 03-3481
There is another threshold issue, however. It is whether
Lu can bring a qui tam action pro se, as he has attempted to
do. The only appellate court to address the issue has held
that a pro se relator cannot prosecute a qui tam action,
because he is acting as an attorney for the government.
United States v. Onan, 190 F.2d 1 (8th Cir. 1951). We agree.
The relator is not technically the government’s lawyer; but
the same policy that forbids litigants, whether they are
corporations, or other organizations, or individuals, such as
members of a class or shareholders, to be represented by
nonlawyers, Rowland v. California Men’s Colony, 506 U.S. 194,
201-02 (1993); Navin v. Park Ridge School District 64, 270 F.3d
1147, 1149 (7th Cir. 2001) (per curiam); Lewis v. Lenc-Smith
Mfg. Co., 784 F.2d 829 (7th Cir. 1986) (per curiam); Phillips v.
Tobin, 548 F.2d 408, 411-12 (2d Cir. 1976); Oxendine v.
Williams, 509 F.2d 1405 (4th Cir. 1975) (per curiam), is
applicable to qui tam suits. Lu is suing not on his own
behalf, but on behalf of the government. Of course his
motives may well be purely private—spite against Ou for
example, or desire for the monetary reward that the success-
ful relator obtains. But an agent does not become a principal
by having a personal incentive to act for him. A rule that
limits legal representation (except self-representation) to
lawyers operates to filter out frivolous litigation that can
redound to the harm of the represented party, especially
when as in this case the representative is a volunteer; the
government didn’t hire Lu to sue on its behalf. “[A] party
may be bound, or his rights waived, by his legal representa-
tive. When that representative is a licensed attorney there
are grounds for belief that the representative’s character,
knowledge and training are equal to the responsibility.”
Lewis v. Lenc-Smith Mfg. Co., supra, 784 F.2d at 830 (internal
quotations and citation omitted). “A relator may make
sweeping allegations that, while true, he is unable effec-
tively to litigate, but which nonetheless bind the govern-

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No. 03-3481 5
ment, via res judicata, and prevent it from suing over those
concerns at a later date when more information is avail-
able.” Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749, 763
(5th Cir. 2001).
The remaining question is whether, rather than affirm the
dismissal of Lu’s suit with prejudice, we should remand the
case to the district court to give Lu a chance to find a
lawyer. We think not. The district judge was correct; the
complaint is incoherent, even crazy. We cannot imagine a
reputable lawyer being interested in taking the case on a
contingent basis—the only possible basis, since Lu describes
himself as homeless and without a telephone.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-18-04

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