The U.S. federal government is urging the U.S. Court of Appeals for the Eleventh Circuit to reverse a district court ruling which held that the False Claims Act’s qui tam whistleblower provisions are unconstitutional.

In a brief filed on January 6 in the qui tam case U.S. ex rel. Zafirov v. Florida Medical Associates, the government states that “other than the district court here, every court to have addressed the constitutionality of the False Claims Act’s qui tam provisions has upheld them.” It therefore urges the Eleventh Circuit to “join that consensus and reverse the district court’s outlier ruling.”

The hugely controversial Zafirov decision, released in September by the U.S. District Court for the Middle District of Florida, ruled that the False Claims Act’s qui tam provisions violate the Appointments Clause of Article II of the Constitution because qui tam whistleblowers who file suits on behalf of the U.S. government alleging fraud are granted “core executive power” without any “proper appointment under the Constitution.”

Under qui tam provisions, individuals may file lawsuits alleging government contracting fraud on behalf of the United States. The government then has the ability to intervene and take over the case, intervene and dismiss the case, or not intervene and let the whistleblower proceed with the suit. In successful qui tam cases, regardless of whether the government intervenes, whistleblowers are eligible to receive between 15 and 30% of the settlement...

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