District Court Rules FCA Qui Tam Provision Unconstitutional
Yesterday evening Judge Kathryn Mizelle in the Middle District of Florida granted a defense motion for judgment on the pleadings and dismissed an FCA case after concluding that the FCA’s qui tam provision is unconstitutional. See U.S. ex rel. Zafirov v. Fla. Medical Assoc. LLC, No. 19-cv-1236 (M.D. Fla. Sept. 30, 2024).
Judge Mizelle first concluded that FCA relators are “officer[s] of the United States,” because they 1) “exercise significant authority pursuant to the laws of the United States,” in the form of possessing civil enforcement authority on behalf of the United States, and 2) “occupy a ‘continuing’ position established by law,” because “the position of relator does not depend on the identity of the person initiating the action, as any ‘person’ can be the relator if she satisfies the statutory prerequisites.” As such, the Constitution requires that FCA relators be appointed consistent with the Appointments Clause, and a relator’s “self-appointment, obviously, does not satisfy the Appointments Clause.”
Although the decision on its face only applies to the defendants in this case, companies litigating qui tam cases should consider whether it is appropriate to raise the same arguments in their cases including, if warranted, through a motion for judgment on the pleadings. The relator in U.S. ex rel. Zafirov argued that the motion for judgment on the pleadings, filed earlier this year following several years of litigation, was untimely and the constitutional argument was therefore waived. Judge Mizelle disagreed, explaining that the motion had been filed well over a year before trial was scheduled to proceed, and therefore any delay was excused.
A copy of the court’s decision can be found here.
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