Eleventh Circuit Saves False Claims Act

By John R. Byrne

The False Claims Act is one of the federal government’s tools for fighting fraud against the government. Among other things, it allows private individual who are called “relators" to bring qui tam lawsuits in the government’s name. If the suit succeeds, the relator can receive up to 30% of the recovery. Most of time, these people are insiders who are blowing the whistle on something they've seen.

About two years ago, you may have read or heard that a federal judge had declared the False Claims Act was unconstitutional. That judge was Judge Mizelle out of the Middle District of Florida, and she held that the False Claims Act violated the Constitution's Appointments Clause. Judge Mizelle reasoned that, because relators exercise "significant authority pursuant to the laws of the United States" and "occupy a continuing position established by law" they were "officers of the United States" and needed to be "presidentially appointed." Because the False Claims Act didn't require relators to be so appointed, it was, she said, unconstitutional.

The Court's ruling created quite the stir. And no doubt people pondered the logistics and practicalities of having the President of the United States formally appointing whistleblowers to file qui tam actions in one-off case after one-off case.

Well, ponder no longer. The Eleventh Circuit (a panel comprised of Judge Branch, Judge Luck, and Judge Moreno sitting by designation) vacated the court's order dismissing the case and held that the qui tam provisions of the False Claims Act don't violate the Appointments Clause. 

Writing for the panel, Judge Branch concluded that a relator is not a federal “officer” because a relator does not occupy a continuing position established by law. A relator’s job is tied to a particular case, carries no continuing salary, and cannot simply be handed off to a replacement. There is, the Court put it rather pointedly, “no ‘office of relator.’”

That doesn’t quite end the constitutional fight. Judge Mizelle never reached the defendants’ separate arguments under the Take Care Clause and Vesting Clause, so the Eleventh Circuit sent the case back for her to consider those arguments.

In case you're going on Jeopardy soon, the Latin phrase "qui tam" comes from the longer Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which translates to "Who sues on behalf of the King as well as for himself." 

Scribbed is not allowing uploads right now but you can find the opinion here.