What may have seemed like an out-of-the-blue question to the casual observer was no surprise to those who represent individuals and entities in the health care and life sciences industries: U.S. Attorney General (AG) nominee Pam Bondi was asked to share her thoughts on the constitutionality of the False Claims Act (FCA) and its qui tam provisions during her January 15, 2025, confirmation hearings.
Senator Chuck Grassley (R-IA) prefaced his questioning by noting that the FCA is “central to fighting government waste and fraud.” And since 1986—when Grassley authored amendments that modernized and strengthened the Civil War-era statute—he has been a fierce defender. Since the 1986 amendments, the FCA has brought in $78 billion for the federal government, with more than $2.9 billion recovered in fiscal year (FY) 2024.
“Most of that is due to patriotic whistleblowers who found the fraud and brought the cases forward at their own risk,” Grassley said.
The U.S. Supreme Court, the senator said, “has long upheld the law’s constitutionality.” Yet Justice Clarence Thomas, in a 2023 dissent,[1] wrote that “[t]he FCA’s qui tam provisions have long inhabited something of a ‘constitutional twilight zone,’” and posited that Article II of the Constitution does not permit Congress to “authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.” Subsequently, on September 30, 2024, a Middle District of Florida District Judge followed suit and declared the provisions unconstitutional.[2] Former AG William Barr, Grassley noted, once objected to the FCA’s whistleblower provisions—and then retracted that objection in confirmation hearings held six years earlier, to the day.
So, what is Bondi’s position on the constitutionality of the FCA’s qui tam provisions?
“I would defend the constitutionality, of course, of the False Claims Act,” the nominee said.
“If confirmed, would you commit to continuing [the Department of Justice’s (DOJ’s)] defense of the constitutionality of it—and will you ensure the entire staff and funding levels, to properly support and prosecute False Claims cases?” Grassley asked.
“Senator, the False Claims Act is so important and especially by what you said, with whistleblowers, as well, and the protection, and the money it brings back to our country. Yes, sir,” Bondi answered.
As we noted in our blog post analyzing the DOJ’s FY 2024 FCA statistics, also released on January 15, last year whistleblowers filed the highest number of qui tam actions in history—979—with the government and whistleblowers, combined, being parties to 588 settlements and judgments. FCA settlements and judgments topped $2.9 billion in FY 2024, with relator share awards totaling nearly $404 million.
The Middle District of Florida’s Dismissal with Prejudice
The U.S. Court of Appeals for the Eleventh Circuit has yet to weigh in on the matter after U.S. District Court Judge Kathryn Kimball Mizelle dismissed an FCA case brought by a qui tam relator based on her ruling that the qui tam provisions are unconstitutional.
Judge Mizelle, who was appointed to the federal bench by President Trump in his first term, dismissed the suit brought by Clarissa Zafirov, a physician who sued her former employer and others in an otherwise ordinary FCA case for allegedly misrepresenting patients’ medical claims to Medicare using false diagnosis codes to obtain inflated reimbursements.
“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,” Judge Mizelle wrote on September 30, 2024. “Instead, relying on an idiosyncratic provision of the False Claims Act, Zafirov appointed herself. This she may not do.”
The plaintiffs appealed to the Eleventh Circuit. Senator Grassley’s office filed an amicus brief on January 15, 2025, “strongly urging the Eleventh Circuit to reverse the lower court’s flawed decision and uphold the constitutionally sound qui tam provision.”
Specifically, Grassley’s 33-page brief rests on three tenets:
- Qui tam statutes are deeply rooted in history: Indeed, qui tam provisions were enacted during the First Congress by the framers of the Constitution and are deeply embedded in the United States’ constitutional history.
- Courts consistently find the FCA constitutional: Courts that have addressed this issue have uniformly concluded that the qui tam provision is constitutional.
- The FCA is an effective (and cost-effective) leveraging of private knowledge and resources: The FCA, strengthened by the qui tam provision, is an effective tool to fight fraud, deter would-be fraudsters, and protect the public from harm.
“And the FCA is a resounding success, as Congress and the Executive Branch have both acknowledged,” Grassley wrote, noting that in health care—the largest area of FCA enforcement—qui tam whistleblowers have prevented harm and have uncovered fraud of which the government might not have been aware. “Additionally, an incalculable but astronomical amount of taxpayer money is saved via the deterrent effect of the whistleblower provisions.”
The United States filed a 77-page opening brief on January 6, 2025, and requested oral argument in the case, noting the importance of the issue. The district court’s decision, the government argued, conflicts with the prior opinions of four U.S. Courts of Appeals, as well as every other court to have considered the question. While the issue applies to cases where the government has not intervened, the government intervened in Zafirov for the limited purpose of defending the qui tam provisions. Specifically, the United States argued that:
- Supreme Court precedent is clear that the qui tam provisions comport with Article II (e., relators do not exercise executive power);
- the district court erred in applying the Appointments Clause to private citizens (e., relators do not exercise significant government authority and do not occupy a continuing position established by law); and
- the district court erred in assessing and dismissing historical evidence bolstering the constitutionality of the FCA’s qui tam provisions, including early qui tam statutes comparable to the FCA.
What This Means for Health Care Enforcement
What might this mean for health care fraud enforcement, as we enter President Trump’s second term? As we noted in our recent blog post on the DOJ’s FCA recovery statistics, the fact that the first Trump administration saw nearly 370 more health care cases brought by relators than during the Biden administration, and the highest number of health care-related FCA cases brought by the DOJ in a single year—combined with Bondi’s support of the constitutionality of the statute—indicates the DOJ’s continued interest in pursuing FCA cases. Focusing on the health care sector continues to generate more FCA enforcement and recovery than any other industry, a trend likely to continue even if we may not yet know if Bondi’s leadership will ultimately prove more favorable to business interests. Stay tuned for more to come once the Eleventh Circuit issues its highly anticipated decision on the constitutionality of the FCA’s qui tam provisions.
Epstein Becker Green Attorney Ann W. Parks contributed to the preparation of this post.
ENDNOTES
[1] See U.S. ex rel. Polansky v. Executive Health Resources, 599 U.S. 419 (2023). In addition to Justice Thomas’ dissent, Justices Kavanaugh and Barrett in a concurrence acknowledged that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II” and suggested that the Court consider those arguments in an “appropriate case.”
[2] See U.S. ex rel. Zafirov v. Florida Medical Associates LLC, 2024 WL 434942 (D. Fla. Sept. 30, 2024).