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Yesterday, less than an hour into the first day of confirmation hearings for attorney general nominee Pam Bondi, Senator Chuck Grassley (R-IA) questioned Bondi on her commitment to defending the constitutionality of the False Claims Act (FCA) if she is confirmed.  Bondi responded that she would “of course” defend the constitutionality of the FCA and that she understands the importance of whistleblowers, the FCA’s protections, and “the money it brings back to our country.”  Senator Grassley’s questioning indicated he was focused on the FCA’s qui tam provisions, as it comes on the heels of U.S. ex rel. Zafirov v. Florida Medical Associates, Inc., — F.Supp.3d –, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024), a first-of-its-kind decision from Judge Kathryn Kimball Mizelle, who held that the FCA’s qui tam provisions improperly appoint a relator “an officer of the United States” in violation of the Appointments Clause in Article II of the Constitution, and are therefore unconstitutional.  Senator Grassley appeared to be seeking assurances about Bondi’s willingness to ensure the Department of Justice continues to defend the FCA’s qui tam provisions and commit the resources necessary to do so.

Senator Grassley is the well-known architect of the 1986 Amendments to the FCA that overhauled the qui tam provisions and gave them renewed focus.  According to Senator Grassley, through the 2024 Fiscal Year, the United States has recovered more than $78 billion from FCA actions, the majority of which came from qui tam actions brought by relators.  The constitutionality of the qui tam provisions has been a simmering debate among FCA practitioners for many years but has enjoyed a renewed focus since Justice Thomas’s dissent in the Supreme Court’s decision in U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), which identified what Justice Thomas called “substantial arguments” that the qui tam provisions are unconstitutional.  The recent Zafirov decision, now on appeal before the Eleventh Circuit, may ultimately give the Supreme Court the opportunity to take up that issue.  

While it remains unclear how the change in administration may affect the debate about the constitutionality of the qui tam provisions, the fact that Senator Grassley asked attorney general nominee Bondi about her willingness to defend their constitutionality so early in the hearing suggests that the importance of the question has not been lost on Congress.  Assuming Bondi is confirmed by the Senate, which seems likely at this point, time will tell whether her statement yesterday holds during the coming administration.

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Photo of Lyndsay Gorton Lyndsay Gorton

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition…

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition to her primary government contracts practice, Lyndsay has federal court litigation experience representing a broad variety of clients in commercial litigation matters, and has led and managed teams at every stage of litigation, including discovery, dispositive motion practice, trial, and settlement. She also uses her litigation experience to assist her clients with internal investigations, risk management, and compliance.

Photo of Brian Tully McLaughlin Brian Tully McLaughlin

Brian Tully McLaughlin is a partner in the Government Contracts Group in Washington, D.C. and co-chair of the False Claims Act Practice. Tully’s practice focuses on False Claims Act investigations and litigation, particularly trial and appellate work, as well as litigation of a…

Brian Tully McLaughlin is a partner in the Government Contracts Group in Washington, D.C. and co-chair of the False Claims Act Practice. Tully’s practice focuses on False Claims Act investigations and litigation, particularly trial and appellate work, as well as litigation of a variety of complex claims, disputes, and recovery matters. Tully’s False Claims Act experience spans procurement fraud, healthcare fraud, defense industry fraud, and more. He conducts internal investigations and represents clients in government investigations who are facing fraud or False Claims Act allegations. Tully has successfully litigated False Claims Act cases through trial and appeal, both those brought by whistleblowers / qui tam relators and the Department of Justice alike. He also focuses on affirmative claims recovery matters, analyzing potential claims and changes, counseling clients, and representing government contractors, including subcontractors, in claims and disputes proceedings before administrative boards of contract appeals and the Court of Federal Claims, as well as in international arbitration. His claims recovery experience includes unprecedented damages and fee awards. Tully has appeared and tried cases before judges and juries in federal district courts, state courts, and administrative boards of contract appeals, and he has argued successful appeals before the D.C. Circuit, the Federal Circuit, and the Fourth and Seventh Circuits.