In the summer of 2023, Justice Thomas suggested in a dissenting opinion in U.S. ex rel. Polansky v. Executive Health Resources that Article II of the Constitution might not permit a qui tam relator to sue in the name of the government absent government intervention. Justices Kavanaugh and Barrett separately urged the Court to review this question. After Polansky, defendants in non-intervened qui tam cases around the country filed motions to dismiss on the grounds that the case could not proceed consistent with Article II.
Little more than a year later, in September 2024, a former Justice Thomas clerk who now presides in the Middle District of Florida (Tampa division), Judge Kathryn Kimball Mizelle, agreed with her mentor and dismissed a non-intervened qui tam suit on that basis. Judge Mizelle concluded the False Claims Act (FCA)’s qui tam provision “defies the Appointments Clause [of Article II] by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public.” United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, No. 8:19-CV-01236-KKM-SPF, 2024 WL 4349242, at *19 (M.D. Fla. Sept. 30, 2024).
Judge Mizelle’s decision is currently on appeal before the Eleventh Circuit. Should the Eleventh Circuit affirm, the issue will be teed up as a circuit split for the Supreme Court to resolve, if it so chooses.
What the Court may do in that situation is anyone’s guess, but things have changed in the past six months. As Mark Feaster describes in a previous post, the Trump administration has clearly indicated its intent to continue to wield the powerful FCA to enforce the administration’s policy priorities.
And on February 21, 2025, the Supreme Court decided Wisconsin Bell, Inc. v. United States ex rel. Todd Heath, 145 S. Ct. 498 (2025). The Court unanimously held that requests for reimbursement from a federally-established program funded partially with federal monies qualified as a “claim” under the FCA. But Justice Kavanaugh, joined only by Justice Thomas, wrote separately to say:
I join the Court’s opinion, which decides a narrow statutory question regarding the scope of the False Claims Act. That statutory issue arises in the context of a qui tam suit. The Act’s qui tam provisions raise substantial constitutional questions under Article II. See, e.g., United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 442 (2023) (Kavanaugh, J., concurring); id., at 449-452 (Thomas, J., dissenting). Those constitutional questions are not before the Court in this case. But in an appropriate case, the Court should consider the competing arguments on the Article II issue.
Noticeably absent from this concurrence is Justice Barrett, who had joined Justice Kavanaugh in his Polansky concurrence on this very issue. With only two members of the Court calling for it to take up the issue, would the Court even grant certiorari if the Eleventh Circuit affirms Judge Mizelle in Zafirov?
Perhaps Justice Barrett’s absence from Justice Kavanaugh’s concurrence in Wisconsin Bell signals waning support for invalidating the qui tam provisions of the False Claims Act. In today’s era of sharp reductions sought to the federal workforce, including within the Department of Justice (DOJ), the contributions of relators in non-intervened suits are not so easily cast aside. As Judge Mizelle recognized in Zafirov, the DOJ intervenes in only 20% of qui tam cases, relying on relators to prosecute the rest. According to DOJ statistics, https://www.justice.gov/archives/opa/media/1384546/dl, since the modern FCA was enacted in 1986, relators have recovered more than $5.4 billion for the United States in cases the government declined to pursue. This is but a fraction of the $49.8 billion recovered when the United States intervenes or otherwise pursues the case, but it is not insignificant.
So even if the Court were to accept Justice Thomas’s and Justice Kavanagh’s invitation to decide the Article II question, which seems a bit less likely today than it did immediately after Polansky, the full Court may find it difficult to invalidate the FCA’s qui tam provisions.
