Defending the Constitutionality of the False Claims Act

February 7, 2025

Whistleblower lawyers everywhere have banded together after a District Court ruled that the qui tam provision of the False Claims Act (FCA) is unconstitutional. This case could change fraud enforcement nationwide and destroy a tool for protecting Government funds. Amongst those defending the constitutionality of the provision are a group of whistleblower relators. In response, they have filed an amicus brief based on their first-hand experience dealing with the False Claims Act.

The District Court’s Finding that the False Claims Act was Unconstitutional

Justice Thomas gave rise to the recent debate about the constitutionality of the False Claims Act. In a dissent in U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023) he opined that the qui tam provisions of the False Claims Act violate the Appointments Clause of Article II of the Constitution.

Article II requires that certain governmental positions be filled only by “officers of the United States.” Art. II. Sec. 2, Clause 2. Justice Thomas suggested but did not decide that Relators who litigate declined qui tam actions may need to be officers to pass constitutional scrutiny.

Not long after, Judge Mizelle for the Middle District of Florida made the hypothetical controversy a reality when she dismissed the claims in US ex rel Zafirov v. Florida Medical Associates et al. Significantly, she opined that the FCA’s qui tam provision did in fact violate the Appointments Clause of Article II of the U.S. Constitution.

By the court’s logic, a relator is an officer of the United States. This is because they may bring civil enforcement cases on behalf of the Government, exercising a “core executive power.” The court said relators have “greater independence than a Senate-confirmed United States attorney or assistant attorney general.” They also have an “unfettered freedom” to litigate and appeal. Based on this argument, she held that the relators were “unconstitutionally appointed” and must be appointed pursuant to the Appointments Clause.

The Federal Government and Whistleblowers Defend False Claims Act Constitutionality

Zafirov is now on appeal at the Eleventh Circuit. The Department of Justice urges the Circuit Court to join the “longstanding consensus that the False Claims Act’s qui tam provisions do not violate Article II.”

“[E]very federal court that has squarely confronted Article II challenges to the qui tam provisions has rejected them, creating a wall of persuasive precedent.”

Additionally, stakeholders across the spectrum filed ten amicus briefs, emphasizing the importance of the FCA. One such brief is of special interest: five whistleblowers in ongoing qui tam cases in district courts in the Eleventh Circuit. Notably, these cases did not enjoy Government intervention, instead the relator lead the litigation. Using the whistleblowers’ collective experience as background, the amicus brief highlights two main points:

1. Qui tam relators and constitutional officers are distinct. Specifically, relators have no power over how the Government’s resources are allocated; the Government does not expend financial resources on their case. In addition, relators do not speak for the Government.
2. Relator-led qui tam cases protect taxpayer funds in a broad range of industries and settings. The brief lets numbers speak for themselves. “[F]rom 1997 to 2023, qui tam actions led to the recovery of $52.75 billion in Government funds through settlements and judgments, with non-intervened actions generating $5.19 billion of that total.”

We are proud that our former clients were among the relators who filed this important brief. Like the other filers, they are maintaining a qui tam action in a declined posture. See United States ex rel. Butler et al. v. Mazin Shikara et al., Civil Case No. 20-cv-80483 (S.D. Fl.).

Executive and Legislative Branch Support

The relators of the amicus brief are not the only ones to recognize the impact of the False Claims Act. On the first day of confirmation hearings for attorney general nominee Pam Bondi, Senator Chuck Grassley (R-IA) asked Bondi about defending the constitutionality of the False Claims Act if confirmed. In response, Bondi stated the importance of whistleblowers and the Act’s protections. In addition, she noted “the money it brings back to our country,” saying she would “of course” defend the constitutionality of the FCA.

Bondi and whistleblower attorneys everywhere are aware of the dire consequences should the district court ruling be upheld. This appeal, and the Supreme Court decision that may come after it, ultimately may decide the fate of future whistleblowers suits stemming from the False Claims Act.