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FCA Qui Notes
May 3, 2019

Appointment Cancelled? Supreme Court Asked to Consider Constitutionality of FCA's Qui Tam Provisions Under the Appointments Clause

Qui Notes: Unlocking the False Claims Act

Could what started with a footnote end with the False Claims Act's qui tam provisions being declared unconstitutional? Probably not, but the Supreme Court was interested enough to order responses to a recent certiorari petition challenging the FCA's constitutionality. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000), the Supreme Court held that an FCA relator has standing to sue on the United States' behalf, but, in a footnote, the Court remarked that it was "express[ing] no view on the question whether qui tam suits violate" the Article II Appointments Clause. As we have previously written, Attorney General William Barr has previously stated on multiple occasions that the FCA's qui tam provisions violate the Appointments Clause. While Attorney General Barr walked back those comments, a certiorari petition filed in January 2019 in Intermountain Health Care, Inc. v. United States ex rel. Polukoff asked the Supreme Court to consider the question. The relator and the Solicitor General declined to file responses and few expected the petition to gain much traction, so it was somewhat surprising when the Supreme Court ordered responses to the petition. Those responses were filed last week.

The relator in Intermountain Health Care alleged that Intermountain helped a cardiologist perform medically unnecessary surgeries and seek federal reimbursement for those surgeries. The district court dismissed the case, and the relator appealed to the Tenth Circuit. For the first time on appeal, Intermountain argued that the FCA's qui tam provisions violate the Appointments Clause. The Appointments Clause authorizes the President, heads of agencies, and courts to appoint "Officers." And, as the Supreme Court explained last Term in Lucia v. SEC, 138 S. Ct. 2044 (2018), this Clause is the exclusive legal means of appointing Officers. Intermountain argued that the FCA's qui tam provisions allow individuals to serve as Officers outside of the Appointments Clause process, or, alternatively, impermissibly vest a core function of an Officer in a relator. The Tenth Circuit declined to consider Intermountain's argument because it had not been raised before the district court.

In January 2019, Intermountain filed a certiorari petition, citing the Supreme Court's footnote in Stevens and asking the Court to take up the FCA's constitutionality. After being ordered to respond to the petition, the Solicitor General and the relator urged the Court to deny certiorari, arguing, among other things, that Intermountain forfeited its constitutional argument, no circuit split exists, the First Congress enacted statutes similar to the FCA, and an FCA relator is not an "Officer" because her civil enforcement authority is strictly limited in time and scope.

While a certiorari grant in Intermountain Health Care remains highly unlikely, the Supreme Court has already surprised us once in this case. Stay tuned.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.