11th Cir. Upholds FCA Qui Tam Provision, Reversing District Court
Reversing a novel district court ruling, the panel held that private relators are not 'Officers of the United States' and their lawsuits do not violate the Appointments Clause.
The U.S. Court of Appeals for the Eleventh Circuit has reversed a district court decision that found the False Claims Act's (FCA) qui tam provisions unconstitutional. In United States ex rel. Zafirov v. Florida Medical Associates, the panel held that private relators who sue on behalf of the government are not 'Officers of the United States' under Article II's Appointments Clause. The decision overturns a first-of-its-kind ruling from the Middle District of Florida and aligns the Eleventh Circuit with every other appellate court to have considered the issue. The ruling restores the status quo for FCA defendants and eliminates, for now, a potent defense in the Eleventh Circuit, a major venue for these cases. However, the constitutional fight is not over. The panel remanded the case for the district court to consider the defendant's other constitutional challenges based on the Take Care and Vesting Clauses. Counsel should also monitor a similar pending case in the Third Circuit. Despite the current unanimity among the circuits, recent comments from several Supreme Court justices suggest the Court may still take up the core constitutional question in an appropriate future case.