11th Circuit Holds That FCA Qui Tam Provisions Do Not Violate Constitution’s Appointments Clause

The U.S. Court of Appeals for the Eleventh Circuit recently held that the False Claims Act (FCA) qui tam provisions do not violate the U.S. Constitution’s Appointments Clause because a so-called “relator,” who files suit on behalf of the United States under the qui tam provisions, is not an officer of the United States who must be presidentially appointed.

In the underlying suit, the relator-physician alleged that the defendants, her employing medical practice and associated entities, violated the FCA by knowingly submitting false diagnosis codes in connection with Medicare reimbursement requests.  The defendants then moved for judgment on the pleadings or dismissal on the ground that the FCA qui tam provisions violate Article II of the U.S. Constitution.  As relevant here, they contended that these qui tam provisions violate the “Appointments Clause because relators exercise significant federal authority in a continuing position without appointment by the President.”  The U.S. District Court for the Middle District of Florida concluded that the FCA’s qui tam provisions violate the Appointments Clause and dismissed the case.

The Eleventh Circuit disagreed and vacated the district court’s order dismissing the case.  The court held that a relator is not an officer of the United States because a relator does not satisfy the legal requirement previously established by the U.S. Supreme Court that such an officer hold a continuing position.  As the court observed, the relator’s position is temporary because it is specific to that individual, ceases to exist when the litigation terminates, and no other person may assume such position.

Because the district court did not address the defendants’ other arguments that the FCA’s qui tam provisions violate the Constitution’s Take Care Clause and the Vesting Clause, the Eleventh Circuit remanded the case for the district court to consider these arguments in the first instance.