Amid recent constitutional challenges to the False Claims Act, recently sworn-in U.S. Attorney General Pam Bondi promised to support whistleblowers during her January 15, 2025 confirmation hearing.
Bondi’s confirmation hearing
Senator Chuck Grassley, a longtime supporter of whistleblowers and the False Claims Act, questioned Bondi during her confirmation hearing about whether she believes the False Claims Act is constitutional and if she would commit to the Department of Justice’s defense of its constitutionality. Senator Grassley noted the important role “patriotic” whistleblowers have played in the government’s recovery of more than $78 billion since 1986.
Bondi confirmed that she “would defend the constitutionality of course of the False Claims Act.” She also assured that she would maintain the Department of Justice’s staff and funding levels to support and prosecute False Claims Act cases.
The constitutional debate over qui tam provisions
Bondi’s stated support of whistleblowers is reassuring, considering the recent debate on the constitutionality of the False Claims Act that was ignited by a dissent authored by Justice Clarence Thomas.
The qui tam provisions of the False Claims Act allow private individuals to file lawsuits on behalf of the government as whistleblowers against those who have defrauded the government. On June 16, 2023, in United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023), the United States Supreme Court held that the government may dismiss a qui tam case litigated by a relator even after it has declined to intervene in the case.
In his dissent in Polansky, Justice Thomas determined that there are substantial arguments that the qui tam provisions of the False Claims Act are inconsistent with Article II of the Constitution. Justice Thomas noted that the president alone is granted executive power, and only appointed officers may litigate on behalf of the United States. He reasoned that because whistleblowers are not appointed as officers under Article II, qui tam relators may not represent the interests of the United States in False Claims Act litigation.
Justices Brett Kavanaugh and Amy Coney Barrett’s concurrence invited litigation on the constitutionality of qui tam cases as well, when they commented that “in an appropriate case,” the Court should consider whether the False Claims Act qui tam provisions are consistent with Article II.
Historical and recent challenges to the False Claims Act
Arguments that qui tam cases run afoul of the Constitution are not new. Opponents of whistleblower cases have centered their constitutional challenges on the Appointments, Take Care, and Vesting clauses in Article II and Article III.
Article III contains a clause stating that a person must have an “injury in fact” to have standing to bring a case. Critics of the False Claims Act argued that relators do not have standing to bring a case on behalf of the United States. The U.S. Supreme Court, however, quashed the Article III argument, in Vermont Agency of National Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000), making clear that a private individual has standing to bring a lawsuit on behalf of the United States under the False Claims Act.
Likewise, every appellate court that has ruled on the issue has upheld the constitutionality of False Claims Act qui tam cases.
On September 30, 2024, in an abrupt shift from these previous decisions and relying on the Polansky dissenting opinion, Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida held that qui tam cases are unconstitutional and dismissed United States ex rel. Zafirov v. Florida Medical Associates, LLC. The Zafirov decision held that a relator is an “officer of the United States” that is not properly appointed, which violates the Article II Appointments Clause.
The future of False Claims Act litigation
The government has appealed the Zafirov decision to the Eleventh Circuit Court of Appeals. While Judge Mizelle’s decision in Zafirov is unprecedented and not binding on other courts, the decision in the Eleventh Circuit could set the stage for a circuit split and possible future review of the constitutionality of the False Claims Act qui tam provisions by the U.S. Supreme Court.
In light of this recent encouragement for defendants to argue that the False Claims Act is inconsistent with the Constitution, the support for whistleblowers and constitutionality of the False Claims Act qui tam cases voiced by Bondi during her confirmation hearing is significant.
Standing up for whistleblowers: Fighting fraud with the False Claims Act
Bracker & Marcus LLC represents whistleblowers pursuant to the federal False Claims Act. If you have questions about fraud, we are here to help. Book your free evaluation today.