Dec 15 (Reuters) - History — and Clarence Thomas — loomed large on Friday as an appellate panel wrestled with the future of the False Claims Act in a case that seems destined for U.S. Supreme Court review.
The key question before the panel is whether the Civil War-era statute runs afoul of executive branch authority by allowing unappointed whistleblowers to sue on behalf of the federal government.
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Under the so-called “qui tam” provision, private litigants can go after anyone they suspect of defrauding the state and, if successful, pocket a share of the proceeds as a reward. The term "qui tam" refers to the first two words of a Latin phrase that translates as "Who sues on behalf of the king as well as himself.”
Two of the three panel members at the Atlanta-based 11th U.S. Circuit Court of Appeals echoed concerns that U.S. Supreme Court Justice Thomas raised in a 2023 dissent that the qui tam mechanism violates the Appointments Clause of Article II of the U.S. Constitution.
As Thomas put it, there's a "good reason to suspect" it does, since the whistleblowers operate without direct accountability to anyone in the executive branch. In a concurrence to the 2023 case, which involved the government's authority to dismiss False Claims Act suits, Justices Brett Kavanaugh and Amy Coney Barrett suggested the court take up the question in the future.
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