Amicus Briefs in Zafirov Appeal
Recently, a number of important briefs were filed in the Eleventh Circuit, shedding light on key historical and legal arguments that could shape the outcome of constitutional battle over the qui tam provisions of the False Claims Act teed up in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al.qui tam
A little background: On September 30, 2024, the Middle District of Florida granted the defendants’ Motion for Judgment on the Pleadings in Zafirov, finding the qui tam provisions were False Claims Act (“FCA”) unconstitutional under Article II. This is the first court to find the qui tam provision FCA unconstitutional under the Appointments Clause, an argument that has been raised often by defendants since Justice Thomas raised Article II concerns in his dissent in Polansky.[1]
Zafirov was a declined case filed under seal in 2019. The relator sued her employer and other defendants, alleging that the defendants misrepresented patients’ medical conditions to Medicare in order to fraudulently increase reimbursements from the government. After many years of litigation, following the Polansky decision, the defendants moved for Judgment on the Pleadings arguing that the qui tam provisions are unconstitutional.
The following briefs defend the constitutionality of the FCA through distinct approaches, including reviewing the history of qui tam provisions, discussing Supreme Court precedent, and analyzing Article II of the Constitution.
Brief for Appellant United States of America:
On January 6, 2025, the government filed a brief urging the Eleventh Circuit to reverse the district court’s decision, which it described as an “outlier ruling.” The government intervened following the defendants’ motion for judgment on the pleadings, specifically to defend the constitutional legitimacy of the qui tam provisions.
In its brief, the government made several key points, including reliance on Supreme Court precedent, historical context, and a critique of the district court’s application of the Appointments Clause. First, the government referenced Vermont Agency of Natural Resources v. United States ex rel. Stevens, arguing that the Supreme Court had already established that relators do not act as “agents of the United States,” but rather as “partial assign[ees] of the government.” The government emphasized the extensive control it retains over qui tam suits—such as its ability to stay, intervene in, or veto cases—arguing that this control demonstrates that relators do not exercise executive power. Additionally, the government reasoned that relators are pursuing their own interests in these claims, similar to how private individuals act under statutes like Title VII.
The government also addressed the district court’s historical analysis (or lack thereof), asserting that it misapplied the history of qui tam provisions. It noted that the First Congress enacted similar statutes and criticized the district court for failing to align its reasoning with Stevens, where the Supreme Court had found that relators were not agents of the government.
The brief then focused on the district court’s interpretation of the Appointments Clause. The government argued that the clause applies to government employees, not private citizens, and that relators do not fall within this category. Citing Stevens and another Supreme Court case, Cochise Consultancy v. United States ex rel. Hunt, the government emphasized that the Supreme Court had already recognized relators as “private” actors. Furthermore, the government contended that relators do not exercise significant governmental authority, nor do they hold “continuing” positions like public officials. Instead, the government framed the relator’s role as “limited in time and scope” and driven by a personal interest, which is partially assigned by the government.
In conclusion, the government reinforced its argument by detailing the historical pedigree of qui tam actions, which trace back to 13th-century England. It noted that the First Congress passed several statutes providing both a bounty and a cause of action for qui tam claims. The government cited Supreme Court cases such as Marvin v. Trout and United States ex rel. Marcus v. Hess, which upheld similar statutes as constitutional and permissible.
Plaintiff-Appellant’s Opening Brief:
On January 8, 2025, the plaintiff-appellant filed a brief arguing that the district court erred in finding that the qui tam provisions of the False Claims Act violate Article II of the Constitution. The plaintiff-appellant challenged the district court’s conclusion, presenting several key arguments.
First, the plaintiff-appellant argued that the provisions are consistent with the Appointments Clause, citing precedent, legal analysis, and historical context. They pointed out that every other federal court to have considered the constitutionality of the provisions has upheld them. The plaintiff-appellant referenced multiple cases that rejected Article II challenges, including one that criticized the Middle District of Florida’s decision as an “outlier,” based primarily on dissenting opinions, concurring judgments, and academic commentary, while disregarding established precedent. The plaintiff-appellant acknowledged that while the Supreme Court has not directly addressed the specific issue, its prior rulings suggest it would uphold the provisions’ constitutionality. Additionally, the brief emphasized that the Court has issued thirteen decisions involving the FCA, none of which questioned its constitutionality.
The plaintiff-appellant next turned to the historical pedigree of the qui tam provisions, arguing that the district court’s decision ignored originalist principles of constitutional interpretation. They pointed out that the Supreme Court has often found historical evidence compelling when interpreting the Appointments Clause, citing several relevant cases. The brief also noted that historical records show qui tam plaintiffs were never considered officers of the United States. Moreover, the plaintiff-appellant highlighted at least seven statutes with similar qui tam provisions, further supporting their position.
Finally, the plaintiff-appellant argued that the qui tam provisions do not violate Appointments Clause precedents. They explained that relators are not government employees, which Supreme Court precedent requires for officer status. The brief stressed that without holding a government position, qui tam plaintiffs cannot be classified as officers, noting that the positions are not “continuing” nor do the relators possess significant authority.
In conclusion, the plaintiff-appellant argued that other Article II challenges fail because they rest on the false premise that the qui tam provisions somehow diminish the power of the Executive.
The Anti-Fraud Coalitions Amicus Curiae Brief:
The Anti-Fraud Coalition filed an Amicus Curiae Brief on January 15, 2025, in support of Plaintiff-Appellant Zafirov and in support of reversal.
TAF Coalition argued that the district court’s decision that the qui tam provisions of the False Claims Act violate the Appointments Clause is based on incorrect assumptions. Specifically, TAF Coalition contended that relators do not exercise executive power and do not hold an “office” as defined by the Constitution. Instead, relators are private individuals who bring cases on their own behalf, while benefiting the government. The relators cannot control the pace or timing of the government investigation, and if the relator chooses to continue the case after the government declines, the relator is still beholden to government control.
TAF Coalition emphasized that historical precedent and over four decades of FCA implementation show that relators act as private parties with no ongoing duties or responsibilities akin to government officers. Relators are not appointed officials, nor do they wield executive authority; rather, they pursue individual legal claims at their own risk, personal and financial, with the potential for a reward, without transforming into government officers subject to the Appointments Clause.
To conclude, the brief observed that relators do not have any other hallmarks of holding federal office. TAF Coalition noted that relators do not have tenure or duties, receive no resources from the government, and have no office space provided by the government. The brief concluded with the observation that: “A relator is simply a private person, pursuing an individual case, at their own expense and effort, with only the expectation of a reward if their efforts succeed in benefiting the government’s fight against fraud.”
Senator Grassley’s Amicus Brief:
On January 15, 2025, Senator Charles E. Grassley filed an amicus brief urging the Eleventh Circuit to uphold the constitutionality of the False Claims Act’s qui tam provisions. In his brief, Senator Grassley emphasized the long history and success of the False Claims Act (“FCA”) and its qui tam provisions, noting that similar statutes have been in place for nearly 1,500 years. The FCA itself was originally passed in 1863, and Senator Grassley played a pivotal role in its modernization in 1986, following widespread fraud in the U.S. At that time, Grassley and his colleagues understood the Constitutional precedent and guardrails when drafting the FCA.
Rejecting the district court’s treatment of this historical context, Senator Grassley argued that the longstanding tradition of qui tam statutes, dating back over a millennium before the founding of the United States, demonstrates that the Framers were aware of such provisions and intended for them to align with the constitutional structure they created. He also pointed out that the qui tam provisions have been repeatedly upheld as constitutional, acknowledging the “partial assignment” granted to relators in these cases.
The brief further detailed the significant impact of the qui tam provisions, citing the recovery of over $75 billion in taxpayer funds through whistleblower lawsuits. Grassley argued that, beyond their financial effectiveness, these provisions also empower private citizens to act as guardians of the public interest, preventing harm and fraud against the government and taxpayers.
Amicus Brief of Legal History Scholars James Pfander, Diego Zambrano, and Jared Lucky
Legal History Scholars James Pfanders, Diego Zambrano, and Jared Lucky filed an amicus brief aiming to provide historical context for Article II and correct the district court’s mischaracterization of their work. The scholars affirmed that qui tam litigation was a widely used enforcement mechanism during the Founding Era, both before and after the Constitution’s ratification. The brief clarified that qui tam actions were viewed as an “exercise of a statutory property right, rather than an act of executive discretion.” It further explained that concerns over separation of powers within qui tam statutes were not raised during the Founding Era, despite numerous opportunities. The brief artfully stated that “[t]he vitality of qui tam as a regulatory tool in the Founding Era, and extensive debates it occasioned, make clear that conventional qui tam enforcement is compatible with Article II as originally understood.”
Amicus Brief of Randy Beck
Professor Randy Beck filed an amicus brief arguing that the historical context of qui tam actions demonstrates they were not viewed as an exercise of governmental power by the founding generation, but rather as private litigation. He provided examples illustrating that qui tam enforcement was not considered executive enforcement, citing state constitutions with provisions similar to the Take Care Clause that still enacted qui tam statutes before the federal Convention. The brief also highlighted that the First Congress enacted qui tam provisions, arguing that this legislative history confirms that such provisions do not conflict with Article II.
Amicus Brief of Relators in Ongoing Relator-Led Qui Tam Proceedings
Relators in ongoing qui tam proceedings filed an amicus brief highlighting the crucial role of relators in relator-led qui tam litigation. The brief argued that relators do not qualify as officers under the Appointments Clause, as they lack the key features of government officers, such as the ability to use government resources, speak on behalf of the government, or assume the government’s authority. Next, the relators emphasized the significant cost and detrimental impact of losing relator-led qui tam litigation. Relators pointed out that these lawsuits play a vital role in reducing misconduct across various industries and have resulted in substantial recoveries for both the government and taxpayers. The brief also cited 31 specific qui tam cases in the Eleventh Circuit where relators have taken the lead on all or some of the claims, further illustrating their integral role in the legal process.
Amicus Brief of Former Prosecutors
A group of former prosecutors arguing that when relators pursue non-intervened qui tam claims, the government benefits by recovering more funds while freeing up resources to focus on other cases and instances of fraud. The brief emphasized that the government is always actively involved in qui tam litigation, retaining “significant and ultimate control over all False Claims Act litigation.” The former prosecutors highlighted the government’s authority to dismiss an FCA case at any point, even if it initially declined to intervene. Based on this, the brief argued that relators do not exercise significant control nor occupy a position within the government and thus the qui tam provision is not “an afront to the government’s authority to recover for frauds against the United States.”
Amicus Brief of the Leukemia & Lymphoma Society
The Leukemia & Lymphoma Society (“LLS”) filed an amicus brief emphasizing its interest in removing healthcare barriers for Americans and argued that declaring the qui tam provisions of the False Claims Act unconstitutional could “significantly impair” the role of whistleblowers in combating fraud. LLS explained that fraud against government healthcare programs directly harms patients by increasing healthcare costs, worsening patient health outcomes, reducing access to care, and eroding trust in healthcare providers. The brief stressed that whistleblowers are crucial to reducing fraud, as they help recover government funds and enhance deterrence, particularly in the context of healthcare fraud.
The Constitutional Accountability Center Amicus Brief
The Constitutional Accountability Center’s (“CAC”) brief argued that the district court did not correctly apply the Appointments Clause. CAC explained that the district court should have flipped its analysis, considering first “whether an appointment to public office in fact exists.” Focusing on the history of the Appointments Clause and the Framers’ intent, the brief argued that it was created exclusively for government workforce members and used to promote the separation of powers principle.
As argued in the brief, relators do not receive a federal salary nor hold public office, thus the Appointments Clause does not apply to them. Notably, CAC traced the constitutional history to determine that the debate surrounding the Appointments Clause did not discuss “restrictions for private actors, even those who might be vested with important statutory responsibilities to work in tandem with the federal government to pursue its interests.” And the duration of the relator’s litigation concludes once the case ends.
Addressing the district court’s “significant authority” finding, CAC contended that the court misread and misapplied Buckley v. Valeo. A precursor to the “significant authority” question is whether the person was appointed to a government position. To conclude, CAC argued that the Appointments Clause does not apply to private individuals even if they have significant authority.
Public Citizen’s Amicus Brief
Public Citizen’s brief primarily argues that the district court largely misapplied Buckley v. Valeo and the Appointments Clause. Public Citizen asserts that Buckley pertains specifically to individuals holding positions within the federal government, addressing whether Congress could assign authority to its own officers to execute the law without federally appointing the officers according to the Appointments Clause. The brief distinguishes Buckley from Zafirov, explaining that the Court did not consider the issue of private individuals who are not appointed to government positions bringing lawsuits to recover damages for fraud against the government, which is a central question in Zafirov. The brief further contends that the relators in this case should not be subject to the Appointments Clause analysis used in Buckley. Public Citizen argues that if the district court’s interpretation were correct, it would conflict with two other Supreme Court rulings. The brief reviews other precedent to conclude that the Appointments Clause was improperly applied to the qui tam provisions of the False Claims Act.
American Association for Justice Amicus Brief
The American Association for Justice (“AAJ”) brief warned that upholding the district court’s decision could lead to “extraordinary consequences.” The brief emphasized that the FCA, like many other statutes and enforcement mechanisms enacted by Congress, relies on private individuals to ensure compliance with federal law. Citing data from 1947 to 2002, AAJ noted that approximately one-quarter of the “enforcement regimes” passed by Congress during that period authorized private lawsuits. The brief also highlighted the similarities between FCA suits and other private rights of action, particularly in terms of damage provisions and the concurrent roles of public and private enforcement. AAJ concluded by referencing other federal laws with penalty provisions similar to the FCA, underscoring that the executive branch frequently depends on private parties to assist in enforcing federal law.
