Eleventh Circuit Upholds Constitutionality of FCA Qui Tam Actions
The U.S. Court of Appeals for the Eleventh Circuit has reversed a district court, holding that the False Claims Act's qui tam provisions do not violate the Constitution's Appointments Clause.
Reversing a much-discussed district court decision, the U.S. Court of Appeals for the Eleventh Circuit in U.S. ex rel. Zafirov v. Florida Medical Associates held that the False Claims Act's (FCA) qui tam provisions are constitutional under the Appointments Clause. The court reasoned that private relators who bring suits on behalf of the government are not "officers of the United States" requiring presidential appointment because they do not occupy a continuing position; their role lasts only for a single case.
This ruling resolves an outlier decision and aligns the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits, all of which have upheld the qui tam mechanism against similar challenges. However, the threat to the FCA is not over. The court remanded the case for the district court to consider the defendants' separate arguments under the Take Care and Vesting Clauses. With at least three sitting Supreme Court justices having expressed skepticism about the qui tam system's constitutionality, counsel for FCA defendants should continue to preserve these Article II challenges for a potential Supreme Court review, which may occur even without a circuit split.