Fifth Circuit Concurrence Finds FCA’s Qui Tam Device Unconstitutional

The Fifth Circuit Court of Appeals recently vacated a $28.7 million verdict in a declined FCA qui tam because the district court improperly relied on the relators’ post-trial expert declarations to calculate damages. Writing separately in a concurrence, Judge Duncan also condemned the “constitutional flaws in the FCA’s qui tam device,” citing the logic of United States ex rel. Zafirov (discussed here), and adding to the number of judges voicing concerns over the constitutionality of the FCA’s qui tam provision.

In U.S. ex rel. Montcrief v. Peripheral Vascular Associates, P.A., No. 24-50176 (5th Cir. 2025), the Fifth Circuit assessed a $28.7 million judgment for claims rendered false by allegedly improper Medicare billing practices. In the trial court, the relators argued that the statute calls for between $64 and $128 million in statutory penalties, but indicated a judgment of $21.8 million in penalties would be acceptable, to obviate any concerns under the Excessive Fines Clause of the Eighth Amendment (discussed further here). The district court imposed $21.8 million in penalties after determining that this amount would not violate the Eighth Amendment.

The Fifth Circuit remanded for a new trial in full on one set of allegedly false claims. On the other set, the court remanded for a new trial on damages. Without reaching the Eighth Amendment issue, the Fifth Circuit determined that the district court improperly entered damages based on a declaration by relators’ expert that was submitted after the trial and never disclosed to the jury.

After acknowledging that Fifth Circuit precedent upholding the qui tam’s constitutionality prevented the panel from addressing that issue, Judge Duncan nonetheless went on to air his views and join an intensifying debate—which we have previously covered here, here, and here—over the constitutionality of the FCA’s qui tam provision. In his view, qui tams violate Article II’s Appointments and Take Care Clauses.

The Appointments Clause empowers the President alone to appoint “Officers.” But relators are not appointed. And they qualify as “Officers,” according to Judge Duncan, because they (1) exercise “‘significant authority pursuant to the laws of the United States’” and (2) occupy “continuing” positions. Making these points, Judge Duncan relied upon the logic of Zafirov.

The Take Care Clause provides that the President alone “shall take Care that the Laws be faithfully executed.” That “exclusive prerogative” includes “the choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” Yet the FCA “‘allows Congress to circumvent the Executive’s check and to have its laws enforced directly by its own private bounty hunters.’” The Constitution “does not allow this outsourcing of prosecutorial power to a private person.”

Judge Duncan pointed to rebuttal arguments raised by some—including, more recently, the Department of Justice in a filing available here—that the incorporation of qui tam provisions into laws at the time of the Founding confirms they are not unconstitutional. Responding to this, Judge Duncan quoted Justice Thomas’ dissent in Polansky for the proposition that “historical patterns cannot justify contemporary violations of constitutional guarantees.”

Judge Duncan emphasized that the present case put “the FCA’s flaws on vivid display.” The relators initiated this enforcement action without any approval from the Executive Branch. And they litigated it “without government oversight” for seven years. Only on appeal did the Government submit an amicus brief—which “did not even fully support [the relators’] legal position.”

A copy of the Fifth Circuit’s opinion can be found here.

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