A first appellate circuit judge has questioned the False Claim Act’s constitutionality. In the Fifth Circuit’s decision last month in United States ex rel Montcrief v. Peripheral Vascular Assocs., P.A., No. 24-50176, — F. 4th –, 2025 WL 939890 (5th Cir. Mar. 28, 2025), Judge Stuart Kyle Duncan separately wrote a concurring opinion to express skepticism regarding the constitutionality of the qui tam provision of the False Claims Act. Adding to a decision issued by a Florida federal district court last fall, Judge Duncan said that the qui tam provision of the False Claims Act violates the Appointments Clause of the Constitution because it allows private citizens to exercise the power of the executive branch despite not being appointed or confirmed as an officer of the United States.
Judge Duncan is the second federal judge to conclude that the qui tam provision is unconstitutional. The qui tam provision, 31 U.S. Code § 3730 – the lifeblood of False Claims Act litigation, is the device by which private parties may bring whistleblower claims on behalf of the United States. Last fall, a federal district court in Florida held—for the first time ever—that the qui tam provision of the False Claims Act is unconstitutional. In United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F.Supp.3d 1293, 1309 (M.D. Fla. 2024), District Judge Kathryn Mizelle concluded that the provision is unconstitutional because it “directly defies the Appointments Clause [of the Constitution] by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public.” The Zafirov decision is currently on appeal before the Eleventh Circuit, but courts in other circuits have taken note.
The appellate court in Montcrief was not required to resolve the qui tam constitutionality issue, but the facts of the case are worth explaining. The panel majority remanded to the district court a $28.7 million Medicare fraud judgment against Peripheral Vascular Associates (“PVA”), a vascular surgery practice in Texas. Tiffany Montcrief led a group of relators who brought claims under the False Claims Act against PVA, alleging that the practice had submitted false claims for Medicare reimbursed for ultrasound services that had never been completed. After the district court granted partial summary judgment in favor of the relators, a jury found that PVA’s billings were material and caused the government to incur significant losses. The district court then imposed a $28.7 million judgment against PVA. Although the Fifth Circuit affirmed the district court’s decision to grant partial summary judgment on a portion of dismissed claims, the appellate court reversed the district court’s partial summary judgment on the claims at the center of the jury trial, concluding that there was ambiguity in the language from the government’s guidance manual regarding how to bill those claims. The appellate court also vacated the district court’s award of damages, noting that it had “expressly concluded after trial that there was ‘insufficient information from which to calculate damages.’” Montcrief, 2025 WL 939890,at *10 (emphasis omitted).
Judge Duncan agreed with the majority’s resolution of these issues, but used his concurring opinion to explain the potentially problematic aspect of the case—that the government had an opportunity to intervene at an early stage but declined to do so. With that declination, Judge Duncan explained that the qui tam provision of the FCA “let [Relator Montcrief] take the lead role in litigating the case,” with the “upshot” being that she “exercised core executive power by deciding how to prioritize and how aggressively to pursue legal actions against PVA.” Id. at *12 (quotations and citations omitted). Judge Duncan concluded that because the government had removed itself from the case, Montcrief was able to exercise government power without oversight or involvement from the executive branch. “A Constitution like ours,” Judge Duncan explained, “vests all federal executive power in a President—[it] does not allow this outsourcing of prosecutorial power to a private person.” Id. at *13.
Both Judge Duncan’s concurrence in Montcrief and Judge Mizzelle’s opinion in Zafirov relied heavily on Justice Clarence Thomas’s dissenting opinion in United States ex rel. Polansky v. Executive Health Res., Inc., 599 U.S. 419, 449 (2023). There, Justice Thomas suggested that the qui tam provision was unconstitutional because it did not permit the government to dismiss FCA cases for which it declines to intervene. Specifically, Justice Thomas explained that the “entire ‘executive power’ belongs to the President alone,” and that “conducting civil litigation . . . for vindicating public rights of the United States is an ‘executive functio[n].’” “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.”
Not all judges to weigh in on the issue have followed Zafirov. Indeed, many district courts have simply ruled that with qui tam provision’s long history that the court would not reverse precedent. But Montcrief and Zafirov show that some judges are eager to weigh in on the qui tam provision’s constitutionality. While Justice Thomas’s dissent in Polansky appears to be gaining traction, there is hardly a consensus on the issue. Defendants facing qui tam suits should thus be mindful of which federal circuit they are litigating in, as there may be a growing divergence of both binding and persuasive authority across the country, unless and until the Supreme Court weighs in.
Please contact the authors if you have any questions regarding the FCA and other government-contractor or healthcare-related enforcement or compliance concerns.