An Eleventh Circuit panel during oral arguments Friday grappled with whether the US Constitution allows whistleblowers to sue for fraud on the government’s behalf under the False Claims Act.
A Florida federal district court ruled in 2024 that whistleblower Clarissa Zafirov’s suit alleging Medicare fraud by Florida Medical Associates LLC must be dismissed. FCA whistleblowers violate the appointments clause in Article II because they improperly “self-appoint as special prosecutors” to initiate enforcement actions, the district court said. The government and Zafirov appealed that decision.
The judges with the US Court of Appeals for the Eleventh Circuit inquired during arguments as to the levels of power and agency given to whistleblowers, with attorneys from both sides weighing in.
Without the whistleblower provisions, the US government could potentially lose billions of dollars in fraud recoveries. For example, more than 80% of 2024 FCA recoveries—$2.4 billion of $2.9 billion—came from whistleblower filed suits.
Several FCA defendants—including Fluor Corp. and Planned Parenthood Federation of America—have raised constitutional challenges to whistleblower suits following the US Supreme Court’s 2023 ruling in United States ex rel. Polansky v. Executive Health Resources Inc., in which Justices Clarence Thomas, Brett M. Kavanaugh, and Amy Coney Barrett expressed doubt about whether Congress could authorize whistleblower suits. This dispute, regardless of who wins, could...
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