News
Goldberg Kohn Litigation Principal Roger Lewis weighs in on the U.S. Court Appeals for the Eleventh Circuit’s recent decision upholding the constitutionality of the False Claims Act (FCA) qui tam provision.
In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit rejected a lower court’s ruling that the FCA’s qui tam provision violates the Constitution’s Appointments Clause. The appellate court held that whistleblowers are not officers of the United States subject to presidential appointment because they do not occupy a position established by law. The court vacated the lower court’s dismissal and postponed the case for consideration of additional constitutional challenges under the Take Care and Vesting Clauses of Article II.
The decision upholds the ability of private individuals to pursue FCA claims on behalf of the government, a mechanism that has played a significant role in identifying and prosecuting alleged fraud against federal healthcare programs. The next step will be reconsideration by the district court judge, Judge Kathryn Kimball Mizell, of the other Article II challenges made by the defendant.
“The path to another district court dismissal in the Zafirov case on Article II grounds is a long shot,” says Roger Lewis. “Judge Mizelle considered all Article II challenges when she first dismissed the case but chose to base her ruling solely on the Appointments Clause. If she had found other Article II issues, like the Take Care clause and Vesting clauses, dispositive or even persuasive, she would have included them in her decision.
“I would expect the appellate court to once again review her decision with skepticism if the Judge were to embrace these alternative arguments now,” he concluded.
In March of this year, Goldberg Kohn Litigation Principal Bill Meyers also commented on this case in the Law360 article, “Trump's FCA Expansion Plan Heightens Compliance Risk.”
He predicted that the issues raised in the Zafirov case will eventually end up before the United States Supreme Court. Now that the Eleventh Circuit has ruled in favor of constitutionality in Zafirov, however, a decision that matches the many other Circuits that have found similarly, Roger Lewis believes that “the prospect of any immediate Supreme Court review of the issue seems remote because there is no Circuit split.” But even if the high court eventually hears the Article II challenges and determines there are constitutional weaknesses in parts of the FCA, Roger and Bill expect that Congress would remedy the statute in order to preserve the "public-private partnership" that the qui tam system creates.
Despite the change in some priorities dictated by the Trump administration and regardless of the eventual outcome of the Zafirov case and Article II challenges more generally, Bill said companies should not assume there's a "get-out-of-jail-free" card coming their way.
About Us
We have significant experience representing qui tam relators in healthcare fraud cases just like this one and have recovered almost $2 billion for the government in our cases to date. If you would like more information about Goldberg Kohn's False Claims Act practice, call us at 312.863.7222 or contact us online. We are always willing to provide a free, confidential consultation to discuss a potential case.