Fifth Circuit Judge Joins the Chorus of Those Saying the FCA’s Qui Tam Device is Unconstitutional

As briefing nears completion in the Zafirov appeal, another federal judge recently added his voice to the chorus of those saying the FCA is unconstitutional. In a recent concurring opinion in U.S. ex rel. Montcrief v. Peripheral Vascular Associates, P.A. (No. 24-50176), Judge Stuart Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit agreed with the view that qui tam suits run afoul of Article II. Though recognizing that Fifth Circuit precedent currently forecloses that position, Judge Duncan used his concurrence to convey his “hop[e] this anomalous practice will someday come to an end.”

While the facts of the case and the panel opinion are unremarkable, Judge Duncan’s concurrence stands out as a notable addition to the growing judicial skepticism of qui tam suits. He described this relatively run-of-the-mill case as one that “exemplifies the problem” posed by relator-initiated FCA actions. Drawing heavily on Justice Thomas’ dissenting opinion in U.S. ex rel. Polansky v. Executive Health Resources, Judge Duncan identified two ways in which qui tam suits violate Article II. First, he concluded that the FCA’s qui tam device violates the Appointments Clause, explaining that relators impermissibly perform a function that only “Officers of the United States” can properly perform: “conducting civil litigation … for vindicating public rights,” including by determining whether to bring the suit in the first place (without advance input from the executive branch) and then conducting all aspects of the litigation once the government declined to intervene. He also adopted Judge Mizelle’s reasoning in Zafirov in concluding that relators occupy a continuing position established by law. Judge Duncan further concluded that the qui tam device violates Article II’s Take Care Clause because it allows private persons to enforce laws, a power the clause assigns to the president alone. He noted that the relators in this case were able to obtain a large verdict on behalf of the government, but “without government oversight,” and that the government’s amicus brief on appeal “did not even fully support” the relators’ legal positions.

As the Zafirov case heads toward oral argument in the Eleventh Circuit, Judge Duncan’s concurrence in Montcrief may well provide a blueprint for any judge interested in affirming the Zafirov holding that the qui tam device is unconstitutional. We here at Qui Notes will continue to monitor all the developments as these issues continue to percolate in the federal courts.

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