FCA Whistleblowers’ Power to Fight Fraud Gets 11th Cir. Look (2)

An Eleventh Circuit panel during oral arguments Friday grappled with whether the US Constitution allows whistleblowers to sue for fraud on the government’s behalf under the False Claims Act.

Judge Robert J. Luck asked the parties if FCA whistleblowers are sitting in the “driver’s seat” when pursuing cases on behalf of the government, and whether their authority violates Article II of the Constitution. In response, an attorney representing the whistleblower, Tejinder Singh, of Sparacino PLLC, said the US Department of Justice “can still grab the wheel,” while Daniel Winik with the Justice Department said whistleblowers have “very limited power,” as compared to the government.

Several FCA defendants—including Fluor Corp. and Planned Parenthood Federation of America—have raised constitutional challenges to whistleblower suits following the US Supreme Court’s 2023 ruling in United States ex rel. Polansky v. Executive Health Resources Inc., in which Justices Clarence Thomas, Brett M. Kavanaugh, and Amy Coney Barrett expressed doubt about whether Congress could authorize whistleblower suits. This dispute, regardless of who wins, could ultimately make its way to the US Supreme Court.

Without the whistleblower provisions, the US government could potentially lose billions of dollars in fraud recoveries. For example, more than 80% of 2024 FCA recoveries—$2.4 billion of $2.9 billion—came from whistleblower filed suits.

The judges here are reviewing a Florida district court ruling dismissing whistleblower Clarissa Zafirov’s allegations of Medicare fraud by Florida Medical Associates.

Question of Control

FCA whistleblowers improperly “self-appoint as special prosecutors” to initiate enforcement actions, wrote Judge Kathryn Kimball Mizelle in the opinion for the US District Court for the Middle District of Florida.

But Winik argued before the US Court of Appeals for the Eleventh Circuit that whistleblowers aren’t US officers and don’t improperly self-appoint in a manner that violates the appointments clause.

Winik also said whistleblowers don’t have a continuing position when they pursue suits.

Luck noted that when a whistleblower files a suit, the DOJ is required to investigate fraud claims, and asked whether that shows whistleblowers have significant authority under the FCA that would violate the Constitution.

Mizelle had said the FCA defies the appointments clause “by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public.”

But Singh, representing Zafirov, told the panel the government stays in control of FCA suits, because nothing tells prosecutors how to investigate.

Kannon Shanmugam, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, said the whistleblower provisions violate the Constitution because private parties can initiate actions in the government’s name, seek damages, and bind the government.

Whistleblowers do exercise significant executive authority, said Shanmugam, representing Florida Medical Associates, but they aren’t properly controlled by the executive branch.

Individual Actor?

Judge Elizabeth L. Branch inquired as to what extent a whistleblower suit belongs to an individual person and how that affects the constitutional analysis.

Zafirov’s brief asserted that whistleblowers aren’t officers because they only have temporary, personal, and limited roles in suits.

Shanmugam urged the appeals court to look at whistleblowers’ status as a whole and said constitutional problems arise because they self-appoint and choose which defendants to accuse of fraud.

Senior Judge Federico A. Moreno, sitting by designation from the US District Court for the Southern District of Florida, asked Singh about the relationship between whistleblowers and the government, and what it means when the DOJ declines to join a case.

The DOJ won’t allow a whistleblower suit to proceed if it isn’t consistent with government priorities, Singh said. If the government declines to intervene, whistleblowers can litigate on their own.

Constitutional problems with the FCA have existed from the “get go,” said Steven Engel of Dechert LLP, who also appeared, representing the US Chamber of Commerce. He added that 1986 amendments to the law intended to “fracture” executive power.

‘Long history’

Gordon Schnell, who represents FCA whistleblowers with Constantine Cannon LLP, said he sensed the panel was leaning toward finding the qui tam provisions constitutional, “with the statute’s long history playing a big part.” But the judges were struggling to reconcile with Thomas’ concerns expressed in Polansky, he said.

One path to a reversal based on Luck’s statements, Schnell said, is finding that whistleblowers don’t occupy a continuing position, but instead, “play a role that begins and ends” with a particular case.

Caleb Hayes-Deats, who represents FCA defendants with MoloLamken LLP, said, “The judges seemed to agree that qui tam statutes were accepted without Constitutional objection when the framers ratified the Constitution and in ensuing years,” but wrestled with how that history interacts with recent Supreme Court pronouncements.

Morgan Verkamp LLC; Nolan Auerbach & White; and Rabin Kammerer Johnson also represent Zafirov. O’Melveny & Myers LLP; Foley & Lardner LLP; and Law Office of Priyanka Ghosh-Murthy also represent the defendants.

The case is United States ex rel. Zafirov v. Fla. Med. Assocs. LLC, 11th Cir., No. 24-13581, oral argument 12/12/25.