In a recent concurring opinion in United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A., No. 24-50176 (5th Cir. 2025), Judge Stuart Kyle Duncan became the latest federal judge to challenge the constitutionality of the qui tam provisions of the civil False Claims Act (FCA), 31 U.S.C. § 3729 et seq., joining a growing list of judges and justices who have argued or suggested that those provisions are unconstitutional. 

Under the FCA qui tam provisions, a private person (a relator) can bring an FCA case in the name of the U.S. and can choose to litigate such a case even if the U.S. (acting through the Department of Justice (DOJ)) itself declines to intervene in the action. In PVA, the DOJ declined to intervene, but the three relators continued to pursue their allegations that defendant Peripheral Vascular Associates (PVA), a vascular surgery practice, submitted thousands of false claims to Medicare for medical procedures, including claims for patients who never visited a doctor in their practice and double billing the same claim multiple times. After a five-day jury trial in 2022 resulted in a $28.7 million verdict for the relators, PVA appealed on several grounds. In its unanimous March decision, a three-judge panel in the Fifth Circuit remanded for a new trial on the double billing-based false claims and remanded for a new trial on damages for the false claims related to patients who did not see a PVA doctor. But the panel decision declined to reach PVA's argument that the qui tam provisions of the FCA violate Article II of the Constitution, noting in a footnote that this argument was foreclosed by the Fifth Circuit's binding en banc decision in Riley v. St. Luke's Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001), in which the Fifth Circuit had found the qui tam provisions were constitutional. 

Judge Duncan, while acknowledging that the PVA panel was bound by Riley, wrote a separate concurrence to express his view that the qui tam provisions are unconstitutional. He invoked Justice Clarence Thomas's dissent in United States ex rel. Polansky v. Executive Health Res., Inc., 599 U.S. 419 (2023), in which he asserted that "[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation." Decision at 23 (quoting Polansky, 599 U.S. at 449, Thomas, J., dissenting). Judge Duncan also noted Justice Brett Kavanaugh's Polansky concurrence, joined by Justice Amy Coney Barrett, in which Justice Kavanaugh expressed a willingness to review the constitutionality of the FCA's qui tam provisions. See id. (citing Polansky, 599 U.S. at 442 (Kavanaugh, J., joined by Barrett, J., concurring)). 

Explaining the basis for his view, Judge Duncan argued that the qui tam provisions of the FCA are in conflict with the Appointments Clause and Take-Care Clause of Article II of the Constitution. With respect to the Appointments Clause, which empowers the president to appoint all principal officers of the United States (with the Senate's advice and consent), he asserted that the qui tam relator in the case was exercising the power of such an officer by conducting the litigation, but doing so without the requisite presidential appointment. Id. at 23-25. With respect to the Take-Care Clause, which provides that the president "shall take Care that the Laws be faithfully executed," Judge Duncan argued that "the FCA 'allows Congress to circumvent the Executive's check and to have its laws enforced directly by its own private bounty hunters,'" rather than by the President as required by the Take-Care Clause, resulting in the improper "outsourcing of prosecutorial power to a private person." Id. at 26 (cleaned up). 

As previously reported, last year the U.S. District Court for the Middle District of Florida found the qui tam provisions unconstitutional in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293, 1300 (M.D. Fla. 2024). That decision has been appealed to the Eleventh Circuit and briefing is nearly completed. It remains to be seen if Judge Duncan's concurrence will factor into the Eleventh Circuit's views on this issue. But current and potential FCA defendants should be carefully tracking this issue, as wider acceptance of Judge Duncan's views would impose major new constraints on whistleblowers' ability to seek damages for alleged fraud against the government and would signal a sea change for the FCA.

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