How 11th Circ.'s Qui Tam Review Could Affect FCA Litigation

George B. Breen, Daniella Lee, and Daniel C. Fundakowski, Members of the Firm in the Health Care & Life Sciences practice, co-authored an article in Law360, titled “How 11th Circ.'s Qui Tam Review Could Affect FCA Litigation.”

Following is an excerpt (see below to download the full version in PDF format):

On Dec. 12, the U.S. Court of Appeals for the Eleventh Circuit is scheduled to hear oral arguments in U.S. ex rel. Zafirov v. Florida Medical Associates LLC, a case that squarely presents the question of the constitutionality of the qui tam provisions of the False Claims Act.

Justice Clarence Thomas drew new attention to the question in a dissent to the U.S. Supreme Court's 2023 decision in U.S. ex rel. Polansky v. Executive Health Resources. And U.S. District Judge Kathryn Kimball Mizelle's 2024 decision in Zafirov, in the U.S. District Court for the Middle District of Florida, became the first in the country to hold the provisions unconstitutional.

But 2025 is, of course, a different world.

The U.S. Department of Justice relies heavily on FCA whistleblowers to further enforcement goals in the areas of healthcare fraud, discrimination, gender-affirming care and more. Further, the Trump administration has recognized the FCA as a strong revenue source for the federal government.

With the matter in the hands of the Eleventh Circuit - and likely on the Supreme Court's radar - we explore this key question.

Justice Thomas' dissent in Polansky - calling the qui tam provisions of the FCA a "constitutional twilight zone" – lit the spark for FCA defendants to challenge their constitutionality.[1] On Sept. 30, 2024, Judge Mizelle's Zafirov ruling stoked the flames.[2]

In an otherwise ordinary FCA case, relator Clarissa Zafirov sued her former employer and others pursuant to the qui tam provisions of the FCA for allegedly misrepresenting patients' diagnosis codes to obtain inflated reimbursements and submitting hundreds of thousands of false claims to the Medicare program.

Judge Mizelle dismissed the case, stating in her opinion,

Zafirov has determined which defendants to sue, which theories to raise, which motions to file, and which evidence to obtain. ... Yet no one - not the President, not a department head, and not a court of law - appointed Zafirov to the office of relator. Instead, relying on an idiosyncratic provision of the False Claims Act, Zafirov appointed herself. This she may not do.[3]

The Eleventh Circuit's decision in Zafirov may present the first opportunity to seek Supreme Court review of the constitutionality of the qui tam provisions, an opportunity Justice Brett Kavanaugh apparently welcomed in his February concurrence in Wisconsin Bell Inc. v. U.S. ex rel. Todd Heath.[4]

Download the full article in PDF format

See also the authors' extended version of the article: "Eleventh Circuit to Weigh the Constitutionality of the False Claims Act’s Qui Tam Provisions."