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Appeals Court Weighs Constitutionality of False Claims Act Whistleblower Provisions
An Eleventh Circuit panel on Friday deliberated whether the U.S. Constitution permits whistleblowers to file fraud lawsuits on behalf of the federal government under the False Claims Act (FCA), a question with potentially billions of dollars in fraud recoveries at stake.
The case stems from a ruling by Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida, who dismissed whistleblower Clarissa Zafirov’s Medicare fraud allegations against Florida Medical Associates LLC (doing business as VIPcare). Judge Mizelle determined that whistleblower suits violate the Constitution’s appointments clause by allowing “unaccountable, unsworn, private actors to exercise core executive power.”
The stakes in this constitutional challenge are substantial. In 2024 alone, whistleblower-initiated cases accounted for $2.4 billion of the $2.9 billion recovered under the FCA—more than 80% of total recoveries. The outcome of this case could potentially reach the U.S. Supreme Court, regardless of which side prevails at the appellate level.
Several FCA defendants, including Fluor Corp. and Planned Parenthood Federation of America, have launched similar constitutional challenges following the Supreme Court’s 2023 ruling in United States ex rel. Polansky v. Executive Health Resources Inc., where Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett expressed skepticism about Congress’s authority to authorize such whistleblower suits.
During Friday’s oral arguments, the panel—consisting of Judges Robert J. Luck, Elizabeth L. Branch, and Federico A. Moreno (sitting by designation from the Southern District of Florida)—probed the constitutional limits of whistleblower power in FCA cases.
Judge Luck questioned whether FCA whistleblowers sit in “the driver’s seat” when pursuing cases, potentially exercising excessive authority under Article II. Tejinder Singh of Sparacino PLLC, representing whistleblower Zafirov, countered that the Department of Justice “can still grab the wheel,” suggesting whistleblowers lack independent authority.
Daniel Winik from the Justice Department reinforced this position, arguing that whistleblowers possess “very limited power” compared to the government’s control over such suits. Winik emphasized that whistleblowers don’t hold continuing positions when pursuing cases and therefore don’t qualify as U.S. officers in a way that would violate the appointments clause.
Taking the opposing view, Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison LLP, representing Florida Medical Associates, argued that whistleblower provisions violate the Constitution because they allow private parties to initiate actions in the government’s name, seek damages, and bind the government without proper executive branch oversight.
Judge Branch inquired about the personal nature of whistleblower suits and how that affects constitutional analysis. Zafirov’s legal team maintained that whistleblowers aren’t officers because they only have temporary, personal, and limited roles in these cases.
Steven Engel of Dechert LLP, representing the U.S. Chamber of Commerce, asserted that constitutional problems with the FCA have existed from the beginning, claiming that 1986 amendments to the law were designed to “fracture” executive power.
Legal observers present at the arguments offered mixed assessments. Gordon Schnell of Constantine Cannon LLP, who represents FCA whistleblowers, sensed the panel was leaning toward upholding the constitutionality of the qui tam provisions, with the statute’s historical precedent playing a significant role in their reasoning.
Caleb Hayes-Deats of MoloLamken LLP noted that the judges appeared to acknowledge the historical acceptance of qui tam statutes during the nation’s founding era but struggled to reconcile this history with recent Supreme Court pronouncements.
The case, United States ex rel. Zafirov v. Florida Medical Associates LLC, could have far-reaching implications for the government’s ability to combat fraud. The FCA has long been viewed as one of the government’s most effective tools for recovering fraudulently obtained funds, particularly in healthcare and defense contracting.
The appeal comes amid growing scrutiny of whistleblower provisions across various federal statutes, reflecting broader constitutional debates about the separation of powers and the proper role of private citizens in law enforcement.
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22 Comments
While whistleblowers have played a crucial role in FCA recoveries, the constitutional concerns raised by the district court judge are understandable. This is a delicate balance that the 11th Circuit will have to navigate.
The potential impact on future fraud recoveries makes this a high-stakes case for both the government and FCA defendants.
The False Claims Act has been a powerful tool for rooting out fraud, but the constitutionality of the whistleblower provisions is now in question. This is a complex issue with significant implications.
I’ll be watching this case closely to see how the 11th Circuit rules and whether it ultimately ends up before the Supreme Court.
The False Claims Act has been an important tool for combating fraud, but the constitutionality of the whistleblower provisions is now in question. This is a complex issue with significant implications.
I’ll be following this case closely to see how the 11th Circuit rules and whether it ultimately reaches the Supreme Court.
Interesting that a district court judge has already ruled the whistleblower provisions unconstitutional. I’ll be following this appeal closely to see how the 11th Circuit weighs in on this complex issue.
The potential billions of dollars in recoveries at stake make this a high-stakes case for both the government and FCA defendants.
The False Claims Act has been an important tool for combating fraud against the government. Whistleblowers play a crucial role, but the constitutionality of their authority is now in question.
This case will test the balance between whistleblower empowerment and executive branch oversight. The ruling could significantly impact future fraud recoveries.
This case highlights the ongoing debate over the balance between whistleblower empowerment and executive branch oversight. The 11th Circuit’s ruling could have significant implications for future fraud recoveries.
I’m curious to see how the court navigates this complex issue and whether the Supreme Court may ultimately weigh in on the constitutionality of the FCA whistleblower provisions.
This case highlights the ongoing tension between protecting whistleblowers and maintaining executive branch oversight. I’m curious to see how the 11th Circuit navigates these competing interests.
The scale of fraud recoveries at stake underscores the importance of getting this constitutional question resolved definitively.
The False Claims Act has been an important tool for combating fraud, but this constitutional challenge to the whistleblower provisions raises complex issues that the 11th Circuit will have to carefully consider.
Given the scale of recoveries at stake, this case could ultimately end up before the Supreme Court, regardless of how the appellate court rules.
This case could have major implications for whistleblower protections and fraud recovery efforts under the False Claims Act. I’m curious to see how the 11th Circuit rules on the constitutionality of these whistleblower provisions.
The stakes are indeed high, with over 80% of FCA recoveries coming from whistleblower-initiated cases. A Supreme Court review would be closely watched.
The False Claims Act has been an important tool for combating fraud, but this constitutional challenge to the whistleblower provisions is concerning. I hope the 11th Circuit can provide clarity on this issue.
With over 80% of FCA recoveries coming from whistleblower cases, the implications of this ruling could be far-reaching if it makes its way to the Supreme Court.
Whistleblowers have played a crucial role in recovering billions through the False Claims Act, but the district court’s ruling on the constitutionality of their authority is concerning. This is a high-stakes case to watch.
The outcome of this appeal could have far-reaching implications for future fraud recoveries and the role of whistleblowers in combating government fraud.