United States v. Hutt

Background

David Shu filed a qui tam action, meaning a case brought by a private person on behalf of the United States, under the False Claims Act. The complaint named Nancy Hutt, a United States Postal Service arbitrator; Donald Swartz and Priscilla Jena Rivera, who were identified as United States Postal Service employees; and Oliverio Leon Bacilios, who had filed a property-damage claim with the Postal Service.

Shu asked to proceed without paying the filing fee and separately asked the court to appoint a lawyer. He was not represented by counsel.

Proceeding Without Paying the Filing Fee

The court relied on Ninth Circuit precedent holding that a person proceeding without a lawyer cannot prosecute a qui tam action on behalf of the United States. The court noted that, in prior related proceedings involving the same claims and facts, it had dismissed Shu’s False Claims Act claim without leave to amend and without prejudice and had instructed him that he could not pursue the claim unless he retained a lawyer.

Because Shu had not retained a lawyer, the court again denied his request to proceed without paying the filing fee. It also dismissed the complaint without leave to amend and without prejudice based on his unrepresented status.

Request for Appointed Counsel

The court also denied Shu’s request for appointed counsel. Under 28 U.S.C. § 1915(e), appointment of counsel for an indigent civil litigant requires exceptional circumstances. The court said that determining whether exceptional circumstances exist requires considering both the claimant’s likelihood of success and the claimant’s ability to explain the claims without a lawyer, in light of the legal issues’ complexity.

Shu argued that exceptional circumstances existed because English was not his first language, he could not clearly explain his claims without a lawyer, and his claims had a high likelihood of success. The court found that Shu had sufficiently explained his claims despite any language barriers, noting that his complaint was 50 pages long. More importantly, the court relied on its prior orders concerning the same claims and facts and found that Shu had not shown a likelihood of success and could not do so.

Disposition

The court denied both the request to proceed without paying the filing fee and the request for appointed counsel. It dismissed the complaint without leave to amend and without prejudice, directed the Clerk to terminate all pending motions and close the file, and stated that no further filings from Shu without a lawyer would be accepted in the closed case.