Concurring in a decision which affirms, in pertinent part, partial summary judgment and a subsequent jury verdict against a Texas surgical practice found guilty of Medicare fraud, Judge Duncan calls into question the constitutionality of the qui tam statute’s relator provisions:

While fully concurring in Judge Haynes’ well-crafted opinion, Judge Duncan writes separately “to point out the constitutional flaws in the FCA’s qui tam device, which our precedent prevents us from addressing. In short, there are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. United States ex rel. Polansky v. Executive Health Res., 599 U.S. 419, 449 (2023) (Thomas, J., dissenting); id. at 442 (Kavanaugh, J., joined by Barrett, J., concurring).

“Unlike Articles I and III, which respectively place federal legislative and judicial power in multi-member bodies, Article II places the power to execute federal law in one person: ‘The executive Power shall be vested in a President of the United States of America.’ … The FCA defies this exclusive vesting of executive power twice over.

“First, it violates the Appointments Clause, which empowers the President to appoint (with the Senate’s advice and consent) all principal Officers of the United States…. Consider what Montcrief, a private person, did here. She conducted civil litigation for vindicating public rights by initiating an enforcement action against PVA on behalf of the United States, with zero front-end executive review. The United States then refused to intervene. Under that circumstance, the FCA let Montcrief take the ‘lead role’ in litigating the case. The upshot: Montcrief exercised core executive power by deciding how to prioritize and how aggressively to pursue legal actions against PVA….

“Second, the FCA’s qui tam device violates the Take Care Clause, which provides that the President ‘shall take Care that the Laws be faithfully executed.’ … This case puts the FCA’s flaws on vivid display. Without any green light by the President or his agents, Montcrief launched an enforcement action on behalf of the United States. The United States decided to stay in the bullpen. So, Montcrief pressed forward on her own steam—without government oversight—for seven years, eventually obtaining a multi-million dollar verdict. Only on appeal did the United States show up, submitting an amicus brief that did not even fully support Montcrief’s legal position.”

 

U.S. ex. rel. Montcrief v. Peripheral Vascular Associates, No.24-50176, 2025 WL 939890 (Duncan, J., concurring).