Qui tam provision
United States ex rel. Zafirov v. Florida Medical Associates
Date: Sept. 30, 2024
Issue: Whether the qui tam provision of the False Claims Act (FCA) violates the Appointments Clause in Article II of the U.S. Constitution.
Case Summary: A Florida federal court ruled the qui tam provision of the FCA is unconstitutional under the Appointments Clause in Article II of the U.S. Constitution.
The qui tam provision is a part of the FCA which allows whistleblowers to sue on behalf of the United States for fraud. As a relator, Clarissa Zafirov prosecuted various corporate entities on behalf of the United States. Zafirov determined which defendants to sue, which theories to raise, which motions to file, and which evidence to obtain. Instead of being appointed to the office of relator by a president, department head, or court of law, she relied on the FCA’s qui tam provision to appoint herself.
In 2019, Zafirov sued her employer, Florida Medical Associates, alleging it violated the FCA by misrepresenting patients’ medical conditions to Medicare. Zafirov never asserted the defendants’ allegedly illegal conduct harmed her. Instead, like a United States attorney, Zafirov sued on behalf of the United States of America. After the government declined to intervene, Zafirov litigated the action on behalf of the United States for the next five years. The defendants argued the FCA’s qui tam provision violates Article II’s Appointments Clause, Take Care Clause, and Vesting Clause.
Judge Kathryn Kimball Mizelle of the Middle District of Florida granted the defendants’ motion for judgment on the pleadings and dismissed the case with prejudice. According to the court, for a person to wield executive authority, he or she falls under the Appointments Clause. This means the person must have been either appointed by the president and confirmed by the Senate (executive officer), or appointed by either the president, the courts of law or a head of a department (inferior officer). This ensures executive power is used in a responsible manner, and the president remains accountable for how executive power is carried out. As established in Buckley v. Valeo, there are two elements that must be satisfied to determine whether an official’s position falls under the Appointments Clause.
The first element for the Appointments Clause is determining whether Zafirov, as a FCA relator, “exercises significant authority pursuant to the laws of the United States.” Zafirov conducted civil litigation in federal court and held parties accountable for their violations of public rights. Zafirov’s exercise in litigating these issues demonstrated that she granted remedies to affected parties who suffered from violations of federal law. The court concluded Zafirov wielded significant authority by utilizing executive power and satisfied the first element.
The second element for the Appointments Clause is that Zafirov must occupy a “continuing position established by law.” As an FCA relator, Zafirov adhered to the FCA’s definitions of her statutory duties and powers. Importantly, the district court determined the office of an FCA relator is a continuous and permanent office like an attorney general or independent prosecutor. Zafirov possessed the authority to self-appoint as a special prosecutor to recover punitive damages. As a result, the court determined Zafirov’s position is continuous, satisfying the second element.
Since both Appointments Clause elements were satisfied, Zafirov operated as an officer of the United States. This means she exercised “core executive power” as demonstrated by her actions in suing on behalf of the United States for fraudulent claims to the federal government. However, Zafirov was not appointed to this role by any higher executive officer. For this reason, the district court determined the FCA’s qui tam provision unconstitutionally granted Zafirov executive authority, and she lacks proper appointment.
Bottom Line: As of Nov. 1, 2024, Zafirov has not appealed the district court’s decision.
Document: Order
