AMARILLO, TX – United States of America, ex rel, Tiffany Montcrief, Relator; Roberta A. Martinez, Relator; Alicia Burnett, Relator v. Peripheral Vascular Associates, P.A., No. 24-50176 (5th Cir. 2025) is a federal False Claims Act (“FCA”) whistleblower (qui tam) case brought by the Relators against Peripheral Vascular Associates, P.A. (“PVA”), a vascular surgery practice based in San Antonio and South Texas. The Relators allege that PVA billed Medicare for vascular ultrasound services that PVA had not yet completed.
In this case, there are two categories of allegedly false claims: (i) the “Testing Only” claims and (ii) the “Double Billing” claims. Before trial, the District Court granted partial summary judgment to the Relators, concluding that PVA submitted Testing Only and Double Billing claims to Medicare that were knowingly false. A jury then determined that these false claims were material and that thousands of such claims caused the federal government (“Government”) to pay out money. The District Court entered a $28.7 million judgment against PVA.
On appeal, PVA challenged the District Court’s grant of partial summary judgment to the Relators. PVA also challenged certain rulings of the District Court during and after trial.
In a March 2025 ruling, the Appellate Court (Fifth Circuit) issued a decision that agreed with some, but not all, of PVA’s arguments. The Appellate Court affirmed the District Court’s grant of partial summary judgement to the Relators on the Testing Only claims, but remanded those claims for a new trial on damages. The Appellate Court reversed the partial summary judgment with respect to the Double Billing claims. The Appellate Court vacated the final judgment and remanded the case for a new trial.
What is remarkable about the Fifth Circuit’s decision is the concurring opinion by Justice Stuart Duncan, which states (in part):
I fully concur in Judge Haynes’ well-crafted opinion. I write separately to point out the constitutional flaws in the FCA’s qui tam device, which our precedent prevents us from addressing. See Riley v. St. Luke’s Episcopal Hosp., 252 F. 3d 749 (5th Cir. 2001)(en banc)(upholding FCA’s constitutionality). In short, “[t]here 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., Inc., 599 U.S. 419, 449 (2023) (Thomas, J., dissenting); see id. at 442 (Kavanaugh, J., joined by Barrett, J., concurring). This case exemplifies the problem.
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.” U.S. Const. art. II, [section] 1, cl.1. “The entire ‘executive Power’ belongs to the President alone,” 599 U.S. at 449 (Thomas, J., dissenting), so “it can only be exercised by the President and those acting under him.” id. 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. U.S. Const. art. II, [section] 2, cl. 2. Under Article II, an “Officer of the United States” is someone who occupies a “continuing” position…and “exercis[es] significant authority pursuant to the laws of the United States.” …
Yet, the FCA “permits private parties” – relators – to sue on behalf of the United States…A relator obviously “exercise[es] significant authority pursuant to the laws of the Unted States” by “conducting civil litigation in the courts of the United States for vindicating public rights.” … But that duty “may be discharged only by persons who are ‘Officers of the United States.’” …
A relator…occupies a “continuing position” for Article II purposes…Anyone can sue under the FCA, so the position “is not personal to a particular individual.” …
So, it seems inescapable that the FCA’s qui tam device violates the Appointments Clause…” [a] private relator under the FCA…is not ‘appointed as an officer of the United States’ under Article II…Relators instead “appoint themselves.” The Appointments Clause does not allow that.
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.” … Instead of “leav[ing] to speculation who is to administer the laws enacted by Congress,” … the Clause “gives the Executive th[at] power.”
A Constitution like ours – one that vests all federal executive power in a President – does not allow this outsourcing of prosecutorial power to a private person.
I…[hope] this anomalous practice will someday come to an end.
Justice Duncan joins other federal judges in questioning the constitutionality of whistleblower (qui tam) lawsuits. Whistleblower lawsuits result in large dollar recoveries each year by the Department of Justice. Many criminal cases against health care providers arise out of whistleblower lawsuits. If federal judges continue to question the constitutionality of whistleblower lawsuit, and if the U.S. Supreme Court eventually agrees, the health care landscape will become very interesting.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm based in Texas with a national healthcare practice. He represents pharmacies, infusion companies, HME companies, manufacturers, and other healthcare providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].
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