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Whistleblower & Qui Tam Lawyers - Whistleblower Attorneys

The district court opinion in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024) and some of the challenges to <a href="https://www.whistleblowersattorneys.com/what-is-the-false-claims-act/">the False Claims Act (FCA)</a> mounted by defendants argue that the Act’s <a href="https://www.whistleblowersattorneys.com/blog/qui-tam-lawsuits/">qui tam</a> provisions infringe on presidential power. The counterarguments to these claims are that relators enhance executive power and that the government exercises sufficient control over relators. Given the nature of the arguments on both sides, it’s worth understanding what the executive branch has said about the FCA over time and if the executive branch primarily views qui tam actions as infringements or enhancements of executive power.

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An important impetus for the enactment of the FCA was a request from the executive branch. Specifically, in 1863, the War and Treasury Departments appealed to Congress to write urgent legislation to respond to defense contractor fraud being committed against the Union army during the Civil War. After <a href="https://www.whistleblowersattorneys.com/blog/a-brief-history-of-the-false-claims-act/">Congress crafted the FCA</a>, Lincoln signed it into law, giving the Act the nickname, “Lincoln’s Law.”

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The first version of the FCA, which lacked important amendments that are now featured in the current version of the Act, was subject to abuse. Whistleblowers with no new information of fraud brought parasitic suits copying allegations in existing cases. In 1942, and in response to these kinds of redundant actions, Attorney General Franciss Biddle wrote to Congress complaining about parasitic suits that did not give the government any new information. In the wake of this letter, Congress nearly repealed the FCA. After strong opposition from Senator William Langer, Congress did not repeal the Act but instead amended it in 1943 to address Attorney General Biddle’s concerns.&nbsp;

In 1985, in the year leading up to the next batch of amendments to the FCA, Attorney General Edwin Meese III <a href="https://www.latimes.com/archives/la-xpm-1985-05-01-mn-11593-story.html">announced</a> efforts to fight defense contractor fraud. One of the efforts he named was supporting a congressional amendment broadening the FCA. During the hearings, for the 1986 amendments to the FCA, the DOJ proposed its own version of the bill, which broadened the FCA in some ways, but did not include any changes to the qui tam provisions.

The Office of Legal Counsel: Direct Engagement with Constitutionality

Beginning in 1989, the Department of Justice’s Office of Legal Counsel (OLC)—a small but powerful office that provides binding legal advice to the executive branch—has from time to time weighed in on the constitutionality of the FCA’s qui tam provisions. In a since recanted and superseded memo written by then-Assistant Attorney General William Barr, the OLC took the position that the qui tam provisions are unconstitutional under the Appointments Clause, Article III, and the separation of powers. However, the editorial note to the memo states that the memo does not reflect the opinion of the Department of Justice. In another 1989 memo, Barr “discusses a variety of common provisions of legislation that are offensive to principles of separation of powers, and to executive power in particular.” One of these proffered legislative encroachments was the qui tam provisions of the FCA. But since both of the 1989 memos, Barr has <a href="https://transcripts.cnn.com/show/cnr/date/2019-01-15/segment/04">recanted</a> the view that the FCA is unconstitutional. Moreover, more recent memos supersede these outdated ones.

The OLC has authored three memos since 1989 that discuss the FCA’s qui tam provisions. These memos universally conclude that the FCA is constitutional. First, in 1996, Walter Dellinger wrote a comprehensive memo on the separation of powers that explicitly superseded one of Barr’s 1989 memos. In making a point about the Appointments Clause, he wrote that “lower federal courts have been correct in rejecting Appointments Clause challenges to the exercise of federally derived authority by… qui tam relators under the False Claims Act” (146). In a memo written in 2007, the OLC set out the meaning of “officer” under the Appointments Clause and explained that qui tam relators do not qualify. In another memo on the Appointments Clause written in 2025, the OLC reiterated points from the 2007 memo, stating that it had “repeatedly determined” that unappointed relators don’t violate the Appointments Clause. The 2025 memo also added the justification that the Appointments Clause does not apply to individuals who are not part of the federal workforce, excluding relators. In the Zafirov litigation, the defense counsel speculated that the 2025 memo was a “made-for-this-litigation opinion,” meaning that the OLC crafted it in an effort to defend the FCA in the face of the Zafirov challenges.&nbsp;

Outside of the OLC, the senior leadership in the DOJ’s Civil Division has favorably commented on the FCA in recent years. In a 2018 memo, Michael Granston, then-director of the Fraud Section, emphasized the strength of the government’s dismissal authority in FCA cases. His view of the dismissal power as an “important tool” underscores the government’s control over qui tam litigation and helps to align the qui tam provisions with Article II. In 2025 at the Federal Bar Association’s Qui tam Section Conference, Granston <a href="https://www.americanconference.com/false-claims-qui-tam-enforcement/2025-conference/">spoke</a> about FCA enforcement as part of the government’s agenda. Most recently, Deputy Attorney General Todd Blanche released a memo encouraging qui tam suits targeting DEI initiatives.&nbsp;

Finally, the executive branch has repeatedly filed statements of interest in non-intervened FCA cases to defend the constitutionality of the Act’s qui tam provisions. For example, in Zafirov, the government submitted statements of interest in both the district court and the Eleventh Circuit. At the district court, the government opened by stating, “[T]he challenges of rooting out fraud in the modern era are more complex; and the FCA has in turn been made more potent through its qui tam provisions. [T]he federal courts of appeals that have considered the question have all found the government’s control over qui tam cases to be constitutionally sufficient. This Court should do the same” (3). And addressing the defendant’s contention that the FCA’s qui tam provisions interfere with executive power, the government responded “qui tam litigation does no such thing” (7). At the Eleventh Circuit, the government wrote that the defendants “fail[ed] to justify” the “novel conclusion” that relators violate the Appointments Clause; the defendants did not “offer a persuasive argument” that the FCA violates the Take Care Clause; and the argument that the FCA is facially unconstitutional is “baseless.”

The executive branch has roundly endorsed the constitutionality of the modern FCA’s qui tam provisions with only one since-recanted exception. The executive branch’s views are not dispositive on the question of FCA constitutionality, but its defenses of the Act provide support for the idea that the qui tam provisions don’t interfere with, but instead enhance, the executive branch’s prerogatives. And indeed, an increasing number of whistleblowers have been making <a href="https://www.whistleblowersattorneys.com/blog/can-i-be-compensated-for-being-a-whistleblower/">increasingly larger recoveries</a>, helping the government preserve the efficacy of its programs and save money that otherwise would have been wasted to fraud.

If you would like more information about Goldberg Kohn's False Claims Act practice, call us at <a href="tel:+1-312-863-7222">312-284-3258</a> or <a href="https://www.whistleblowersattorneys.com/contact/">contact us online</a>. We are always willing to provide you with a free, confidential case review to discuss a potential case.

Some Defendants Have Argued that the FCA Infringes on Executive Power. What does the Executive Branch Think?

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