Courts have historically wrestled with who qualifies as an “Officer of the United States”— a term that is used five times in the Constitution and its amendments. Considering that the federal government employs nearly 3 million people, some of the confusion is warranted. But not all. Earlier this year, the U.S. Supreme Court faced the question of whether the president qualified as an officer of the United States. The Court ultimately decided the case on different grounds without clarification on this point.
In stark contrast to the Supreme Court’s silence on this question, a federal district court in the Middle District of Florida ruled Sept. 30 that any individual who files a qui tamlawsuit under the False Claims Act is an officer of the United States. Based on this finding, the Florida court departed from decades of precedent and reasoned that the False Claims Act’s qui tam provisions are unconstitutional because whistleblowers are not appointed by the executive branch.
This means that the current judicial guidance leaves us with these conclusions: (1) a U.S. president may or may not be an officer of the United States, but (2) any individual (including a foreign national) who files a qui tam case as a whistleblower is an officer of the United States. It is incumbent on the judiciary to resolve this issue and reverse the Middle District of Florida’s opinion. The rule of law and the taxpayers deserve better.
The False Claims Act is not new; in fact, it has deep historic roots. Congress enacted the False Claims Act during the American Civil War in response to government contractors who were defrauding the Union Army by providing substandard goods, such as rotten food, sick mules and crates filled with sawdust instead of muskets. The original FCA sought to combat this fraud by empowering citizens to file suits on behalf of the government against those fraudsters and share in a portion of the recovery. With the implementation of programs like Medicare and Medicaid, the need for whistleblowers skyrocketed. The government simply doesn’t have the resources to detect and investigate every instance of fraud.
Therefore, the qui tamprovisions of the FCA are critical to the statute’s success. As U.S. Senator Chuck Grassley stated, “One of the smartest things Congress has ever done is to empower whistleblowers to help the government combat fraud. They get results.” These results are astronomical. Earlier this year, the DOJ announced that in fiscal year 2023 the government secured settlements and judgments exceeding $2.3 billion from qui tamlawsuits.
Of course, this is not to say that whistleblowers have full autonomy to prosecute lawsuits on behalf of the government. Even if the government declines to intervene in the case, the FCA allows the government to (1) intervene later upon a showing of good cause, (2) settle the action with the defendant (with court approval) notwithstanding the objections of the whistleblower, and (3) prevent the whistleblower from voluntarily settling or dismissing the action. Perhaps most importantly, only last year in United States, ex rel. Polansky v. Executive Health Resources, Inc., the U.S. Supreme Court held that the government has broad discretion to dismiss a qui tamlawsuit at any stage of litigation.
Despite these critical limitations, the Middle District of Florida determined in Zafirov v. Florida Medical Associates that the FCA’s qui tam provisions are unconstitutional because they empower citizens to act as “Officers of the United States” without the requisite appointment by the executive branch. In the ruling, the court explains that the FCA “entitles any person … to enforce the statute by filing a lawsuit in the federal government’s name.” Interpreting the term “person” broadly, the court presumes that even a foreign national can file a lawsuit in the federal government’s name.
The court goes on to reason that if any of those individuals file a lawsuit under the FCA, he or she instantly yields such “significant authority” to render him or her an “Officer of the United States.” Despite the above-discussed limitations on whistleblower authority under the FCA, the court found that whistleblowers have “unchecked civil enforcement authority” sufficient to render them “Officer[s] of the United States.” The court ultimately dismissed the case because the whistleblower was not properly appointed. In doing so, the court parted with decades worth of precedent from federal courts across the country.
One of the most jarring issues arising from this opinion is its juxtaposition with the rhetoric surrounding the Supreme Court’s holding earlier this year in Trump v. Anderson. There, the Court addressed whether Colorado could exclude former President Donald Trump from appearing on the Republican primary ballot in the state. Colorado tried to exclude the former president based on Section 3 of the 14th Amendment, which says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
The state trial court had considered this clause and found that while President Trump had “engaged in insurrection,” he was not an “officer of the United States” under the meaning of that provision.The Colorado Supreme Court reversed that holding, finding that the president is, in fact, an officer of the United States. The Supreme Court ultimately reversed the Colorado Supreme Court on a different theory but without discussion of whether the president is an officer of the United States.
Without express guidance from the Supreme Court, this issue of whether the president— the highest-ranking official in our government — is an officer of the United States is still up in the air.
According to one Florida court, all it takes for a person to become an officer of the United States is to simply file a lawsuit under the False Claims Act.
Allison Cook is an associate at Dallas litigation boutique Reese Marketos. She focuses her practice on representing whistleblowers in qui tam cases.