Debate Over Qui Tam Constitutionality Resumes.

• Author: Fenster, Herb, Sr.
• Position: Government Contracting Insights

The motivating force behind the False Claims Act is its provision for qui tam enforcement, which authorizes private parties to initiate FCA cases on behalf of the United States. In the 1980s, scholars and litigants questioned the constitutional validity of statutory authorization for relators to sue on behalf of the U.S. government. After 15 years of litigation, this debate withered, but has been recently re-invigorated.

There are principal challenges to the constitutionality of qui tam enforcement.

One is the issue of standing. The Supreme Court settled the question of whether relators have Article III standing in the affirmative in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (1999). At issue was whether a relator has suffered the requisite "injury in fact" to satisfy Article Ill's case-or-controversy requirement. The court held that "[t]he FCA can reasonably be regarded as effecting a partial assignment of the government's damages claim," and accordingly determined that a relator has standing based upon "the United States' injury in fact."

But the court's opinion only whet litigants' appetite for other constitutional challenges to qui tam. In concluding that a relator has Article III standing, Justice Antonin Scalia added in an enigmatic footnote, "we express no view on the question whether qui tam suits violate Article II, in particular the Appointments Clause of [section] 2 and the 'Take Care' Clause of [section] 3."

A second issue is the Appointments Clause, which provides that the president shall nominate, and with the advice and consent of the Senate, shall appoint "officers of the United States," and that Congress may vest appointment of "inferior officers" in the president alone, in the courts of law, or in the heads of departments.

Relators arguably serve as "officers" or "inferior officers" of the United States when they file qui tam actions and prosecute them on behalf of the federal government. The constitutional question is whether they may do so without specific appointment in accordance with the Appointments Clause.

A third issue is separation of powers. The Executive Vesting Clause and Take Care Clause provide that "[t]he executive power shall be vested in a president of the United States of America" and that the president "shall take care that the laws be faithfully executed." The constitutional question--as framed 30 years ago in a Department of Justice memorandum by Attorney General William...