Last week brought bombshell news for all those who care about stopping fraud on the government. And it wasn’t the good kind.

On September 30, Judge Kathryn Kimball Mizelle, a federal judge in Tampa, Florida, held that the qui tam provisions of the False Claims Act are unconstitutional. Those provisions allow whistleblowers to sue on behalf of the government to recover funds lost to fraud. Whistleblower-led suits are the primary means the federal government uses to get back billions of taxpayer dollars every year that healthcare providers and other government contractors have pilfered.

Whistleblower Partners attorneys talked to reporters covering this major development. Here are some of our thoughts on Judge Mizelle’s decision in the case, captioned United States of America ex rel. Clarissa Zafirov v. Florida Medical Associates, LLC, et al., No: 8:19-cv-01236 (M.D. Fla. 2021).

Speaking to the Daily Business Review, Ari Yampolsky looked to history and longstanding practice to frame the court’s radical conclusion. “The False Claims Act has been around since the Civil War and has functioned in its current form for nearly 40 years. Yesterday's holding by Judge Mizelle in the Middle District of Florida in the Zafirov case is an aberration. The statute has been found constitutional many, many times and many courts have rejected the very Article II challenge Judge Mizelle breathed new life into.”

Talking to Nina Youngstrom of COSMOS (Report on Medicare Compliance), Max Voldman sharpened the point: “This is the first decision on any level that qui tam provisions are unconstitutional.” For context, Max highlighted to a 2014 opinion in a case involving Halifax Hospital Medical Center—penned by a judge in the same district as Judge Mizelle—that upheld the constitutionality of the statute against a similar challenge.

Speaking to Bloomberg Law, Eric Havian was even more emphatic: “The court . . . plainly got it wrong[.] There have been many cases dating back decades that have affirmed the FCA’s qui tam mechanism against similar or identical Constitutional challenges.”

Mary Inman agreed, telling COSMOS that, “This decision is an aberration, especially in light of other decisions we have seen. But that doesn’t mean it isn’t dangerous.”

Looking to what’s next, Max offered that the court of appeals would likely overturn Judge Mizelle’s decision: “The government is likely to come in on the side of whistleblowers to say the False Claims Act is constitutional,” priming the appellate court to join four others that have rejected similar constitutional challenges. Ari agreed, telling Compliance Week that more sensible appellate judges would likely disagree with Judge Mizelle’s analysis.

And even if it reached the Supreme Court, Max doubted that government contractors accused of fraud would find five votes to destroy the government’s principal fraud-fighting tool. “It’s pretty hard to see such a seismic shift,” he said.

Eric agreed, telling Bloomberg Law that, “If the Justices of the Supreme Court are consistent in their embrace of history when evaluating the constitution, that should be the end of the matter.”

Characterizing the high stakes of the court’s decision, Ari told Law360 that, “If the goal is to allow more fraud against the government to occur, this is a good way to do it. If you're seeking to insulate from accountability and oversight government contractors who steal from the public fisc, that's a good way to do it.”