Federal Court Rules False Claims Act’s Whistleblower Provisions Are Unconstitutional

Key Takeaways:

• A federal court has held that the False Claims Act's private enforcement mechanisms are unconstitutional under the Appointments Clause, reasoning that qui tam relators lacked proper constitutional appointment to exercise the executive power of the United States necessary to sustain an FCA action.

• If upheld, the decision could substantially impact future FCA litigation since most cases are brought privately (by qui tam relators) rather than by the government itself.

On September 30, 2024, Judge Kathryn Mizelle of the U.S. District Court for the Middle District of Florida dismissed United States, ex rel. Zafirov v. Florida Medical Associates, LLC et al., a False Claims Act (FCA) case brought by a qui tam relator on the basis that the relator lacked proper appointment under the Constitution to exercise the significant authority and core executive power necessary to sustain the action under the FCA's qui tam provisions.

The court's dismissal is the first of its kind following Justice Clarence Thomas' dissent in the Polansky case, where he described the FCA's qui tam provisions as "inhabit[ing] something of a constitutional twilight zone" because of "substantial arguments" that a relator's ability to represent the interests of the United States is "inconsistent" with Article II of the Constitution. See United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 449 (2023). The issue, to Thomas, was whether Congress could authorize a private relator - who is not "appointed as an officer of the United States" under Article II of the Constitution - to "wield executive authority to represent the United States' interests in civil litigation." Id. at 449-450. Notably, although they joined the outcome in Polansky's majority opinion, Justices Brett Kavanaugh and Amy Coney Barrett filed a brief concurrence agreeing with Thomas' suspicion regarding the constitutionality of the FCA's qui tam provisions.

Mizelle, who formerly clerked for Thomas, found that Article II does not have an exception for qui tam cases and concluded that the FCA "directly defies the Appointments Clause by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public." United States, ex rel. Zafirov v. Florida Medical Associates, LLC et al., No. 8:19-CV-01236-KKM-SPF, 2024 WL 4349242, at *19 (M.D. Fla. Sept. 30, 2024).

With the majority of FCA actions being initiated and sustained by relators instead of the government directly, the end of qui tam actions would have a substantial impact on the future of FCA enforcements. As this case is the first of its kind, the future of qui tam actions is far from determined, as this case will certainly face scrutiny on appeal. We will continue to follow and issue additional alerts on this topic as the matter develops.