Mumin v. Holder ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Dukhan Mumin, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-0726 (UNA)
)
Eric Holder et al., )
)
Defendants. )
)
MEMORANDUM OPINION
This matter is before the Court on its review of plaintiff’s pro se complaint and
application for leave to proceed in forma pauperis. For the reasons explained below, the in
forma pauperis application will be granted and this case will be dismissed pursuant to 28 U.S.C.
§ 1915A, which requires immediate dismissal of a prisoner’s complaint that fails to state a claim
upon which relief can be granted.
“A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiff is a Nebraska state prisoner. He
alleges that in 2015, pursuant to the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., he
submitted a qui tam complaint to the Department of Justice (“DOJ”) against the Nebraska
Department of Health and Human Services (“NDHHS”). According to plaintiff, that state
agency “solicit[ed] funds from the federal government to assist those recipients on ADC . . . in
rising above the poverty line, but diverted the funds for . . . uses other than what they were
designed to address.” Compl. ¶ 11. Allegedly, in response to plaintiff’s recent inquiry to DOJ,
1
the U.S. Department of Health and Human Services (“HHS”) informed him “that an
investigation would not be conducted and dismissed the case.” 1 Id. ¶ 15. Plaintiff claims that he
“is entitled to pursue a qui tam action pursuant to law,” and that defendants’ conduct “represents
a collaboration and conspiracy to violate [his] constitutional rights, by depriving him of an
opportunity to recover at least 15% of all fines and penalties collected from the NDHHS for their
fraudulent activity.” Id. ¶¶ 17-18. Therefore, plaintiff demands “compensation of at least 15%
of all fines and penalties collected from the NDHHS . . . between 1987 to the present” and
punitive damages. Id. at 5.
The FCA authorizes “[a] person [to] bring a civil action . . . for the person and for the
United States Government[,]” but “[t]he action shall be brought in the name of the Government.”
31 U.S.C. § 3730. Therefore, it is established in this circuit that “pro se parties may not pursue
[qui tam] actions on behalf of the United States.” Walker v. Nationstar Mortg. LLC, 142 F.
Supp. 3d 63, 65 (D.D.C. 2015) (quoting U.S. ex rel. Fisher v. Network Software Assocs., 377 F.
Supp. 2d 195, 196-97 (D.D.C. 2005); see Canen v. Wells Fargo Bank, N.A., 118 F. Supp. 3d 164,
170 (D.D.C. 2015) (noting that “courts in this jurisdiction consistently have held that pro se
plaintiffs . . . are not adequately able to represent the interests of the United States”) (citing
cases). As the court explained in Fisher, “a qui tam relator has an interest in the action,” but the
United States is the real party in interest “regardless of whether the government chooses to
intervene.” 377 F. Supp. 2d at 198 (following Rockefeller v. Westinghouse Elec. Co., 274 F.
Supp. 2d 10, 12 (D.D.C. 2003)). And “[b]ecause the outcome of such an action could have
claim-or issue-preclusive effect on the United States, ‘[t]he need for adequate legal
1
Plaintiff refers to an attachment “marked exhibit # 1,” but the complaint contains no such
attachment.
2
representation on behalf of the United States is obviously essential.’” Id. at 198 (quoting
Rockefeller, 274 F. Supp. 2d at 16). Consequently, while plaintiff has every right to “plead and
conduct [his] own case[ ] personally,” 28 U.S.C. § 1654, he has neither a constitutional nor a
statutory right to pursue the claims of the United States without counsel.
In addition, the United States Attorney General has absolute discretion in deciding
whether to investigate claims for possible criminal or civil prosecution, and such decisions are
generally not subject to judicial review. Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480-
81 (D.C. Cir. 1995); see Wightman-Cervantes v. Mueller, 750 F. Supp. 2d 76, 80 (D.D.C. 2010)
(“[A]n agency’s decision whether to prosecute, investigate, or enforce has been recognized as
purely discretionary and not subject to judicial review.”) (citing Block v. SEC, 50 F.3d 1078,
1081-82 (D.C. Cir. 1995) (other citation omitted)). Consequently, to the extent that plaintiff is
challenging HHS’ alleged decision not to pursue his qui tam claim, he has not identified any
authority that provides for judicial review. A separate order of dismissal accompanies this
Memorandum Opinion.
Ketanji Brown Jackson
Ketanji Brown Jackson
DATE: May 19, 2017 United States District Judge
3