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On March 17, 2025, the NAM filed an amicus brief urging the 11th Circuit to affirm a lower court’s determination that a False Claims Act qui tam lawsuit pursued by a “relator” violates the Appointments Clause—Article II of the Constitution. The FCA’s qui tam provisions allow a private individual (a “relator”) to bring a lawsuit on behalf of the federal government against individuals who have submitted false claims to the government and to receive a portion of the government’s recovery in the suit. In this case, the relator alleged that defendants violated the FCA by misrepresenting patients’ medical conditions to Medicare. The district court granted defendants’ motion to dismiss the case on the pleadings on the ground that qui tam suits violate Article II. The court reasoned that a relator is an officer of the United States based on how a relator conducts litigation on behalf of the government and therefore is subject to the Appointments Clause, which “vest the appointment of inferior officers ‘in the President alone, the head of an executive department, or a court.’” But the FCA’s qui tam provision—authorizing a relator to bring suit—allows for self-appointment which does not satisfy the Appointments Clause.

Our brief details how relators treat the FCA’s qui tam provisions as an investment strategy and are not likely to have any direct or personal interest in or knowledge of the alleged underlying fraud. As such, the qui tam provisions incentivize relators to press meritless theories in pursuit of personal gain. Relators have adequate and constitutionally sound avenues for reporting fraud to the government other than bringing lawsuits.