Eleventh Circuit Rejects FCA Qui Tam Constitutional Challenge
The court reversed a district court's finding that the whistleblower provision violates the Appointments Clause, but the ruling deepens a debate that may soon reach the Supreme Court.
The U.S. Court of Appeals for the Eleventh Circuit has reversed a district court's decision that the False Claims Act's (FCA) qui tam provision was unconstitutional. In United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, the appellate court held that private whistleblowers, or relators, who pursue declined cases on behalf of the government are not "officers" of the United States and therefore do not violate the Constitution's Appointments Clause.
This ruling averts a circuit split for now, aligning the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits. However, the decision comes amid growing judicial skepticism toward the qui tam device, fueled by recent opinions from three Supreme Court justices suggesting the issue warrants review. The defendants in Zafirov may seek en banc rehearing or petition for certiorari. With a similar constitutional challenge pending in the Third Circuit, the potential for a future circuit split remains, which would increase the likelihood of Supreme Court intervention. A successful constitutional challenge would fundamentally alter the landscape of FCA litigation, a primary tool for combating fraud against the government.