/>iOn September 30, 2024, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida issued an order in United States ex rel. Clarissa Zafirov v. Florida Medical Associates, LLC, holding that the qui tam provision of the False Claims Act (FCA) is unconstitutional. Judge Mizelle’s holding reasoned that the authority given to private citizens under the qui tam provision of the FCA violates the Appointments Clause of the U.S. Constitution. This ruling comes after Supreme Court Justices Barrett, Kavanaugh, and Thomas questioned last year whether the qui tam provision violated Article II of the U. S. Constitution (see United States ex rel. Polansky v. Executive. Health Res., Inc., 599 U.S. 419 (2023)).
As a reminder, the FCA’s qui tam provision authorizes private citizens or whistleblowers – referred to as “relators” – to file FCA cases on behalf of the United States. After a relator files a complaint, the government may choose to intervene and take over prosecution of the action. The government may also choose to decline to intervene, at which point the relator may proceed to litigate the matter as they see fit. Whistleblowers and other relators often use qui tam lawsuits under the FCA to seek damages for allegedly false or fraudulent claims knowingly submitted to federal health care programs by health care providers and health care entities.
Here, the relator (Zafirov) alleged that her employer violated the FCA by misrepresenting patients’ medical conditions to Medicare. The United States declined to intervene in the case, and Zafirov has pursued the case on its behalf for five years until recently, when the defendants moved for judgment on the pleadings challenging the constitutionality of the qui tam provision. The government continued to not intervene, instead filing a statement of interest to also contest the constitutional arguments.
The defendants argued that the qui tam provision violates the Take Care and Vesting Clauses of Article II. The defendants also argued that the qui tam provision violates the Appointments Clause of Article II. The district court agreed with the defendants’ second argument (and therefore reasoned it did not need to come to a conclusion on the Take Care and Vesting Clauses), dismissing the case and holding that FCA relators are officers of the United States and they are not properly appointed under the Appointments Clause, making the qui tam provision unconstitutional.
Judge Mizelle concluded that qui tam relators are officers of the United States under Supreme Court precedent because they “exercise[s] significant authority pursuant to the laws of the United States” and occupy a “continuing position established by law.” Thus, according to the Appointments Clause, as officers, qui tam relators must be “appointed by the President alone, in the Courts of Law, or in the Heads of Departments.”
It remains to be seen what the immediate effect of this ruling will be and whether other defendants will have similar success with such arguments, given that this is a District Court ruling and, therefore, non-binding. The case will likely be appealed to the Eleventh Circuit as the government already expressed interest in defending the constitutionality of the FCA’s qui tam provision. If the Eleventh Circuit affirms the District Court judgment, it would create a circuit split since multiple other circuits have previously rejected similar constitutional challenges. This could potentially lead to the Supreme Court granting certiorari, where multiple justices have expressed skepticism about the constitutionality of the qui tam provision.
