Today, the Eleventh Circuit heard oral argument in a closely watched appeal concerning whether the qui tam provisions of the False Claims Act (“FCA”) are constitutional. The case—United States ex rel. Zafirov v. Florida Medical Associates—arrives at the Eleventh Circuit following a district court decision that found the qui tam mechanism, which allows a relator (or whistleblower) to pursue an FCA matter on behalf of the government, unconstitutional. The Eleventh Circuit is now considering an appeal of that decision. The implications of the Eleventh Circuit’s decision could have far-reaching effects on modern FCA enforcement and set the stage for a Supreme Court showdown.
As discussed in a prior Alert, in September 2024, a federal district court judge in Florida dismissed a relator’s qui tam suit on constitutional grounds, concluding that a relator “wields significant authority” by conducting civil litigation in the name of the United States to vindicate purely public rights, and occupies a “continuing position established by law.” United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 8:19-CV-01236-KKM-SPF, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024) (Mizelle, J.). As a result, the court concluded that FCA relators are “officers” who exercise significant executive power but are not properly appointed. Consequently, the district court found that it was unconstitutional under Article II’s Appointments Clause for a relator to...
An appellate court has shut the door on reviewing the constitutionality of the qui tam provisions of the False Claims Act (FCA), although two other appellate courts are reviewing this issue, with ...