The defendants filed their brief in Zafirov on March 10, 2025, urging the Court of Appeals to affirm the district court’s finding that the False Claims Act’s qui tam provisions violate the Constitution’s separation of powers by conflicting with Article II.

As expected, the defendants argued that the provisions violate both the Appointments Clause and the Vesting and Take Care Clauses. They contend that the relators exercise core executive power in bringing lawsuits: “Relators can litigate as they wish, making important strategic decisions, such as pursuing certain theories and forfeiting others.” In arguing that the provisions violate the Appointments Clause, the defendants assert that relators exercise significant authority by having the discretion to bring cases on behalf of the government. They argue that relators have greater authority than government officials in this context. Additionally, the defendants claim that relators occupy “continuing positions” because they are statutorily empowered to initiate and litigate cases on behalf of the government. The defendants devoted considerable discussion to explaining the significant control relators have, emphasizing their “unfettered discretion to decide whether and when to file suit, which defendants to target, which claims to pursue, and what legal theories to advance.”

Although the district court did not reach the Vesting and Take Care Clauses challenge, the defendants took the opportunity to explain why the provisions were unconstitutional under those clauses as well, arguing that the provisions disperse executive power to private individuals without proper presidential control or the ability for the President to remove or control the relators.

The defendants addressed the relator’s and government’s arguments, rejecting the notion that relators have private interests, instead maintaining that they act on behalf of the government to address its injuries. The defendants reiterated many of their earlier arguments, asserting that the claim that relators do not exercise significant authority is unconvincing. They pointed out that relators independently file lawsuits on behalf of the government, compelling the government to act, and that their power to initiate litigation directly impacts executive enforcement decisions.

In a single paragraph, they sidestepped the government’s significant dismissal authority, stating that “the possibility that the government could intervene and persuade the court to dismiss the action does not undermine the proposition that relators exercise significant authority.” They dismissed the argument that the provisions “enhance” the power of the executive, asserting that the provisions intrude on the President’s traditional authority by allowing private relators to bring lawsuits and influence litigation priorities.

Furthermore, the defendants argued that historical statutes lacked mechanisms for executive control, dismissing the “historical exceptionalism” argument. They noted that historical practices alone cannot justify contemporary violations of constitutional principles. The defendants contended that while certain statutes were similar to the qui tam provisions, they lacked modern mechanisms of government control, which were only introduced later.

Finally, the defendants claimed that even when the government intervenes, the provisions remain unconstitutional. They argued that the district court had found all relators to be officers under the Appointments Clause, and therefore, the provisions are unconstitutional.

This blog was written by Grace Swindler, the Director of Legal Education at The Anti-Fraud Coalition. This piece was edited by Jacklyn DeMar, the President & CEO of The Anti-Fraud Coalition.