“The Constitution precludes transferring the Executive’s prosecutorial power to qui tam relators without first complying with the Appointments Clause.” 
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

(Washington, DC)—Yesterday, Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Eleventh Circuit to affirm a Middle District of Florida decision declaring the False Claims Act’s (FCA’s) qui tam provisions unconstitutional.

The case arises from a qui tam suit by relator Clarissa Zafirov alleging that her employer misrepresented patients’ medical conditions to Medicare to secure higher government reimbursements. U.S. District Judge Kathryn Mizelle dismissed the case with prejudice, declaring the FCA’s qui tam provisions unconstitutional. She found that qui tam relators like Zafirov exercise “core executive power” by prosecuting a case on behalf of the United States, effectively acting as an “officer” of the government. Yet because relators aren’t appointed by the President or a department head—as required by the Appointments Clause—she held that the FCA’s qui tam provision violates the Constitution.

In its amicus brief urging affirmance, WLF explains why only the executive branch is empowered to represent the interests of the United States in litigation. Congress cannot delegate that power to private actors. Officers in the executive branch are appointed to an office of public trust and act under obligation of oath, at peril of impeachment. And Article II’s directives protect against the abuse of prosecutorial discretion. The FCA upends that design by allowing private relators to wield the tremendous power of public prosecution with no constitutional checks on their discretion.