A Florida federal court ruled the False Claims Act’s (FCA) qui tam provisions unconstitutional, determining that relators—private parties—are not appointed Executive Officers in compliance with the Appointments Clause (U.S. Constitution, Article II).
The district court’s FCA ruling opened the door for Appointments Clause challenges. Since there is a decision supporting dismissal of non-intervened qui tam cases on Article II grounds, FCA defendants may wish to consider such defenses in their responsive pleadings. The Eleventh Circuit is expected to review the Zafirov decision.
On September 30, Judge Kathryn Kimball Mizelle of the Middle District of Florida dismissed a qui tam case with prejudice and challenged the constitutionality of the FCA’s qui tam provisions. Background Qui tam provisions allow private parties or relators to file suit on behalf of the government, allegedly for the purpose of vindicating the government’s interests. Successful qui tam relators receive a portion of the proceeds recovered, ranging from 15 to 30%.
This incentive has created a rise in whistleblower-led litigation. In its February 2024 press release, the Justice Department reported that “[w]histleblowers filed 712 qui tam suits in fiscal year 2023, and this past year the Justice Department reported settlements and judgments exceeding $2.3 billion in these and earlier-filed suits.
” United States ex rel. Zafirov v. Florida Medical Associates Clarissa Zafirov was one such whistleblo.