In a prior blog, PilieroMazza discussed the Supreme Court’s decision in United States ex rel. Polansky v. Executive Health Resources, Inc. In that case, in his dissenting opinion, Justice Clarence Thomas referred to the qui tam provisions of the False Claims Act (FCA) as operating in “something of a constitutional twilight zone” and called into question whether relators have standing to pursue qui tam actions where the government declines to intervene in the litigation. Specifically, Justice Thomas opined that “Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.” Based on Justice Thomas’ opinion, which received some support from Justices Brett Kavanaugh and Amy Coney Barrett, PilieroMazza presumed that a case challenging the constitutionality of the qui tam provisions could be a “blockbuster in a future term.” A recent decision of the United States District Court for the Middle District of Florida pushes that issue to the forefront and offers defendants in FCA matters an additional defense to use when the government declines to intervene in litigation.

The Case

In United States ex rel. Zafirov v. Florida Medical Associates, LLC, Clarissa Zafirov filed a qui tam action under the FCA against her employer and various other defendants claiming that Florida Medical Associates misrepresented patients’ medical conditions to Medicare resulting in unnecessary medical services. The government...

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