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Defense Production Act (DPA) a Critical Component of Biden Strategy for COVID-19

Client Alert | 2 min read | 01.22.21

The Biden administration has identified the Defense Production Act (DPA) as a key part of its new “National Strategy for the COVID-19 Response and Pandemic Preparedness” (Strategy), buttressed by a new “Executive Order on a Sustainable Public Health Supply Chain” (Executive Order). Issued on January 21, 2021, the Biden administration’s Strategy calls for immediate action to address critical shortfalls of vaccination supplies, testing supplies, and personal protective equipment (PPE). The Executive Order, issued the same day, directs agencies to use “all available legal authorities, including the Defense Production Act, to fill those shortfalls as soon as practicable by acquiring additional stockpiles, improving distribution systems, building market capacity, or expanding the industrial base.”

The Strategy identifies certain areas in which supply shortfalls are believed to exist. These include “supplies like N95 masks, isolation gowns, nitrile gloves, polymerase chain reaction (PCR) sample collection swabs, test reagents, pipette tips, laboratory analysis machines for PCR tests, high absorbency foam swabs, nitrocellulose materials for rapid antigen tests, rapid test kits, low dead-space needles and syringes.” More generally, the Strategy calls for action under the DPA to fill shortfalls of “all the necessary equipment and material to accelerate the manufacture, delivery, and administration of COVID-19 vaccine.”

Under the Executive Order, the Secretary of Health and Human Services also is required to advise the President “promptly” of any changes needed to the March 2020 Executive Order 13910, “Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19.” That executive order, which remains in effect, delegates DPA authority to the Secretary to restrict the hoarding of health and medical resources necessary to the COVID-19 response.

You can access Crowell & Moring’s recent webinar here discussing the DPA, lessons learned in 2020, and preparing for its use in the coming year. Additionally, you can find summaries of the DPA here and Defense Priorities and Allocations System (DPAS) here.

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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