In a series of what we entitled “reports from the front,” we discussed how the federal government asserted, and eventually won, the right to intervene in ongoing False Claims Act suits to seek their dismissal notwithstanding the objections of the “relators” who were ostensibly pursuing these actions in the government’s name.  Basically, the relators claimed that, unless the government exercised its initial right to take over an FCA suit early on, the government lost all control over the relators, and they could essentially run wild using the government’s name.  The Supreme Court rightfully rejected that view.  United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 437-38 (2023) (government entitled to intervene and obtain dismissal of FCA action at any time on the basis of any “reasonable argument” regardless of the relator’s position).

However, three justices had more to add – they challenged that entire FCA private-attorney-general system as unconstitutional.  Justice Thomas stated in dissent:

The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone.  There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. . . .  [T]he Court has held that conducting civil litigation for vindicating public rights of the United States is an executive function that may be discharged only by persons who are Officers of the United States under the Appointments Clause.  A private relator under the FCA, however, is not appointed as an officer of the United States under Article II.  It thus appears to follow that Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.  The potential inconsistency of qui tam suits with Article II has been noticed for decades.

Polansky, 599 U.S. at 449-50 (Thomas, J., dissenting) (citations and quotation marks omitted).  Concurring Justices Kavanaugh and Barrett agreed.  “I add only that I agree with Justice Thomas that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.”  Id. at 442 (concurring opinion).

Thus, we commented that “another front opens.”

Fast forward to United States ex rel. Zafirov v. Florida Medical Assocs., LLC, 751 F. Supp.3d 1293 (M.D. Fla. 2024), in which the court went where the three justices in Polansky pointed, holding that “defendants correctly argue that [relator] exercises significant authority, indeed core executive power, . . . but lacks proper appointment under the Constitution. As a result, the case must be dismissed.”).  Id. at 1300.  Zafirov gave several reasons for reaching this conclusion.

• FCA realtors qualify as constitutional “officers” of the United States government. Id. at 1305-07.
• Appointment of “inferior officers” is vested solely in the president, but mere “employees” are not subject to the same limitations.  Id. at 1306-07.
• A person is considered an “officer of the United States” if s/he (1) “exercises significant authority pursuant to the laws of the United States,” and (2) “occup[ies] a continuing position established by law.”  Id. at 1307 (citation and quotation marks omitted).
• FCA relators exercise significant authority pursuant to the laws of the United States, specifically the FCA, since the FCA’s civil litigation powers are “significant.”  Id. at 1307-08.
• An FCA relator’s “significant authority” includes ability to bring suit in the name of the United States, exercise prosecutorial discretion, take legal positions, including on appeal, that “bind the United States,” demand “daunting” and “punitive” sums – all of which are “core” executive power.  Id. at 1308-09, 1314.
• FCA realtors routinely seek civil penalties that dwarf analogous criminal fines.  Id. at  1311.
• The number of private FCA actions dwarfs the number of FCA prosecutions commenced by the Justice Department.  Id. at 1312.
• FCA relators sue to redress wrongs allegedly committed against the United States, not against private parties.  Id. at 1313.
• Numerous statutory duties define FCA relators’ roles as representatives of the United States.  Id. at  1313-14.
• Relators’ tenure is analogous to special prosecutors or bank receivers, who are considered federal officers.  Id. at 1314-15.
• A relator’s “ability to assign that right [to recover] to others confirms that the position does not depend on the identity of the person occupying it.”  Id. at 1316.
• A relator’s authority extends for the duration of the litigation, which can be several (over six in this case) years’ duration.  Id. at 1317.

The Zafirov decision concluded:

An FCA relator possesses all the traditional indicia of holding a constitutional “office.”  [The] position is analogous to other temporary officials wielding core executive power whom courts have categorized as officers.  And a relator passes the . . . test for temporary-yet-continuing officers.  In sum, [a relator] occupies a “continuing position.”

751 F. Supp.3d at 1317 (citation omitted).

Finally, the plain language of Article II did not allow for any “exception” for qui tam relators.  Id. at 1317-18.  “Simply put, the Constitution prevails over practice, especially when the text is clear.”  Id. at  1318.  While the FCA’s qui tam provisions have existed for well over a century, “historical patterns cannot justify contemporary violations of constitutional guarantees.”  Id. (citation and quotation marks omitted).  Further, most earlier versions of qui tam statutes “quickly fell into disuse and were eventually rescinded.”  Id. at 1321.  Indeed, the FCA itself was “largely” dormant until it was amended in 1986.  Id.

After determining that FCA relators were Article II federal “officers, “no question” existed that they were “improperly appointed.”  Id. at 1322.  Thus the Zafirov action was dismissed with prejudice.  Id. at 1324.

Dismissal with prejudice meant an appeal to the Eleventh Circuit, and that is where things currently stand.  Both the private relator (Zafirov) and the government are appellants.  Here is: (1) relator’s appellant’s brief and reply brief; (2) the United States’ initial brief and reply; and the defendants’ brief as appellees.  There are also numerous amicus briefs on both sides. Our purpose here is not to evaluate all the arguments in depth – this is not a product liability case, and we don’t specialize in False Claims litigation.  Essentially, the appellants argue that FCA qui tam actions have been allowed for more than a century (it’s more like since the 1980s), and that Congress authorized private FCA enforcement.  The appellees respond that that Congress cannot take a core executive function – prosecuting fraud against the government – partially divest the executive branch of that power, and hand it over to private citizens acting as bounty hunters.

We also note the concurring opinion in United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A., 133 F.4th 395 (5th Cir. 2025), by Judge Duncan, that reaches the same conclusion that the qui tam provisions of the FCA are unconstitutional as an attempt to “outsource” the executive branch’s prosecutorial powers to private individuals.

We tend to agree with the appellees in Zafirov (and to a lesser extent with the Montcrief concurrence)  since, in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), in the product liability context we’re familiar with, the court specifically held that private plaintiffs had no business pursuing state-law claims alleging fraud against the government.  The FDA, a part of the executive branch, “has at its disposal a variety of enforcement options that allow it to make a measured response to suspected fraud upon the Agency.”  Id. at 349.  If the Supremacy Clause of the Constitution precludes private parties from bringing agency fraud claims involving federal agencies, then it stands to reason that, for many of the same practical reasons, the same “inherent” power cannot be snatched away from executive agencies by Congress and given to the public at large.

From our perspective, the demise of private FCA litigation cannot come too soon.  In the Ninth Circuit, plaintiffs are allowed to use the FCA to bring fraud on the FDA claims identical to those preempted by Buckman and that complete ignore congressional intent to preclude private FDCA enforcement.  FCA plaintiffs routinely bring FCA illegal promotion claims against truthful off-label speech.  They attack other forms of FDA approval, too.  FCA claimants inevitably demand Draconian punishments for minor violations that the FDA would never consider seeking.  They encourage conflicts of interest and self dealing.  As demonstrated by the litigation over the original FCA “front,” FCA plaintiffs make obscene discovery demands – against the government as well as the defendants.  They demand full refunds for picayune purported “violations” despite the products doing what they were supposed to do and not injuring anyone.  FCA plaintiffs even invade patient privacy.  In sum, 95% of FCA litigation that we encounter is not worth the time and effort (except for the lawyers bringing it), and the other 5% could just as well be brought by the government itself.

Good riddance – we hope.