On September 30, 2024, a federal district court judge held that the qui tam provisions of the False Claims Act (FCA) violate the Appointments Clause of Article II of the Constitution. U.S. ex rel. Zafirov v. Fla. Med. Assocs., LLC, C.A. No. 8:19-cv-01236-KKM, 2024 U.S. Dist. LEXIS 176626 (M.D. Fla. Sept. 30, 2024) (“Zafirov”). While Zafirov’s holding is novel, the constitutional issue raised in that decision is not.

Last summer, in U.S. ex rel. Polansky v. Executive Health Resources, Justice Thomas outlined in dissent the “substantial arguments” that the FCA’s qui tam provisions may be “inconsistent with Article II.” We previously discussed Justice Thomas’s Polansky dissent here, here, and here. The Zafirov decision, authored by Judge Kathryn Kimball Mizelle, a former law clerk for Justice Thomas, hews closely to Justice Thomas’s dissent in Polansky.

While Zafirov is not binding and will likely be appealed, FCA defendants are taking a renewed interest in potential constitutional challenges to FCA lawsuits that the government declines to pursue.

Background

In 2019, Clarissa Zafirov, a physician and former employee of the defendant medical providers, filed a lawsuit under the FCA alleging that the defendants misrepresented patients’ medical conditions to Medicare. Zafirov, 2024 U.S. Dist. LEXIS 176626, at *12. The government declined to intervene in the lawsuit and the case was unsealed. Zafirov then pursued the case on her own. In 2022, following two rounds of motions to...

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