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Fourth Circuit Accepts "Implied Certification" Theory When Contractual Requirement Is Unambiguous and Material

Client Alert | 1 min read | 01.12.15

On January 8, 2015, the Fourth Circuit, in U.S. ex rel. Badr v. Triple Canopy, Inc., reversed the district court's dismissal of allegations that the contractor had submitted false claims by invoicing for security guards who had failed to pass the marksmanship proficiency test even though the contractor never affirmatively certified to the guard's shooting proficiency or presented to the government the false test cards allegedly created to hide the deficiency. The Court noted that the implied certification theory was "prone to abuse" and that it had previously "guarded against turning what is essentially a breach of contract into an FCA violation," but concluded the best manner for drawing the line was by "strict enforcement of the Act's materiality and scienter requirements" and, here, the marksmanship requirement was an objective criterion and its materiality demonstrated by the contractor's alleged falsification of the scoring cards which were required to be maintained under the contract.


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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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