Earlier this year, Chilivis Grubman founding partner Scott Grubman wrote an article for the Georgia State Bar Health Law Section’s Newsletter, wherein he discussed the continued fight over the constitutionality of the False Claims Act’s (FCA) qui tam (or whistleblower) provisions.
In that article, Scott discusses an October 2024 decision from the United States District Court for the Middle District of Florida, where federal district court Judge Kathryn Mizelle dismissed an FCA qui tam lawsuit, holding that the qui tam provisions are inconsistent with Article II of the Constitution. Specifically, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, Judge Mizelle held that FCA whistleblowers (known as Relators) are, by definition, “Officers of the United States” and, as such, pursuant to Article II, must be nominated by the President with advise and consent of the Senate. Because FCA Relators, of course, do not follow this appointments procedure, Judge Mizelle held that the qui tam provisions were unconstitutional and dismissed the case.
In dismissing the case, Judge Mizelle relied upon the legal analyses that Justice Clarence Thomas had included in a dissenting opinion the year prior, in United States ex rel. Polansky v. Executive Health Resources, Inc. Two other Justices — Kavanaugh and Barrett — joined Justice Thomas’ dissent. (Perhaps relevantly, Judge Mizelle served as a law clerk to Justice Thomas).
Just last month, Judge Stuart Kyle Duncan of the Fifth Circuit agreed with Justice Thomas and Judge Mizelle’s constitutional position, although in a concurring opinion. See U.S. ex rel. Montcrief v. Peripheral Vascular Associates, P.A.
Other judges have disagreed with Justices Thomas and his progeny. Just two weeks before Judge Mizelle issued her decision in Zafirov, for example, a federal district court judge in the Southern District of Florida rejected the same argument. See United States ex rel. Butler v. Shikara. Similarly, in 2023, just a few months after Justice Thomas’ dissenting opinion in Polansky, a federal district court judge in the Northern District of Alabama issued an order also rejecting the Article II constitutional challenge. See United States ex rel. Wallace v. Exactech, Inc.
Most recently, Judge Marc Treadwell of the Middle District of Georgia joined the chorus of judges opining on the issue, and also rejected the defendant’s constitutional challenge. In United States ex rel. Gonite v. UnitedHealthcare of Georgia, Inc., Judge Treadwell held that qui tam relators are not officers for purposes of the Appointments Clause because, among other factors, their duties are temporary and not continuous.
Judge Mizelle’s decision in Zafirov is currently pending appeal before the Eleventh Circuit, which likely will not rule on the issue to sometime next year, at the earliest. In the meantime, the Department of Justice continues to file position statements in qui tam cases where the defendant files a motion to dismiss on Article II grounds, defending the constitutionality of the qui tam provisions. (Again, perhaps relevantly, or maybe just coincidentally, Judge Mizelle’s husband Chad Mizelle currently serves as the Chief of Staff for the DOJ).
Given that at least three Supreme Court Justices seem to believe that the qui tam provisions are unconstitutional, it is likely that this issue will eventually work its way to the Supreme Court for final decision. Until then, the split continues.
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The attorneys at Chilivis Grubman represent businesses and individuals in connection with government investigations and False Claims Act litigation, including cases brought under the FCA’s qui tam whistleblower provisions. If you need assistance with such a case, please contact us.