Judge Ho Critiques Constitutionality of Whistleblower Lawsuits

Vocal Fifth Circuit Judge James Ho said the court should consider in the future whether the False Claims Act’s whistleblower provisions have “serious constitutional problems.”

Ho concurred with the US Court of Appeals for the Fifth Circuit panel’s decision Monday to reject an FCA suit alleging Medicare fraud by Encompass Health Rehabilitation Hospital of Pearland LLC. But he also said FCA whistleblowers present Article II concerns.

Whistleblowers act like representatives of the federal government in court and seek to combat federal fraud, Ho said, but they “are neither appointed by, nor accountable to, the President.”

Ho agreed with fellow Judge ...