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

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.

Read the full post at Arnold & Porter