Insights

Washington – June 20, 2024:  In a rare 8-1 decision, the U.S. Supreme Court decided U.S. v. Rahimi today in favor of restricting access to firearms for domestic violence abusers. The higher court held that: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

On September 1, 2026, the Eleventh Circuit issued its long-anticipated decision in U.S. ex rel. Zafirov v. Florida Medical Associates LLC, holding that the qui tam provisions of the False Claims Act are constitutional because relators are not officers of the United States who occupy continuing positions established by law. The decision overturned the 2024 district court ruling that sparked a wave of constitutional challenges to qui tam suits and aligns the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits on the issue. The constitutional debate is far from over, however, as the decision is limited to the constitutionality under the Appointments Clause. The court remanded the case for further evaluation of the parties’ Take Care and Vesting Clause arguments. At the same time, similar constitutional arguments are pending in the Third Circuit, related to the largest-ever FCA judgment in a non-intervened case, and multiple Supreme Court justices have already signaled potential willingness to weigh in on the qui tam provisions’ constitutionality. Crowell's FCA attorneys explain these developments and what's next in a “Feature Comment” published in The Government Contractor.

On September 1, 2026, the Eleventh Circuit issued its long-anticipated decision in United States v. Florida Medical Associates, LLC, – F.4th –, 2026 WL 2581886 (11th Cir. Sept. 1, 2026) (the “Zafirov appeal”) overturning the district court and holding that the qui tam provisions of the False Claims Act (“FCA”) do not violate the Appointments Clause of Article II of the United States Constitution because relators are not officers of the United States that occupy “continuing positions.” The Eleventh Circuit did not reach other arguments made by the parties and remanded the case to the District Court for the Middle District of Florida to address two other constitutional arguments challenging the FCA’s qui tam provisions based on Article II’s Vesting and Take Care Clauses. 

False Claims Act (FCA) settlements and judgments hit record highs yet again in FY 2025, surpassing the previous record by over $1 billion and setting a new high-water mark for the number of new FCA cases filed.  These records were built both on existing enforcement priorities such as pandemic-related fraud and healthcare enforcement actions and new guidance from the Executive Branch instructing the Department of Justice to enforce its 2025 priorities including Diversity, Equity, and Inclusion (DEI), civil rights, and customs issues.  Procurement fraud, cybersecurity issues, and small business fraud also remained focal points, with significant settlements in each of those areas.  In the courts, an Eleventh Circuit decision expanded relators’ ability to use discovery to avoid dismissal under Rule 9(b), and a Ninth Circuit ruling clarified a number of customs fraud issues while applying the Supreme Court’s Schutte scienter test.  Debate over the qui tam provisions’ constitutionality continued to grow, with arguments made in multiple circuits, including an Eleventh Circuit oral argument in the appeal of the Middle District of Florida’s Zafirov decision that helped to spark the recent wave of challenges.  Crowell FCA attorneys explain these developments, trends, and what’s next for the FCA in a “Feature Comment” published in The Government Contractor.

The federal government has identified purported ‘waste, fraud, and abuse’ in small business programs as a major focus of its current enforcement efforts. As it relates to federal procurement, we have seen audits and investigations rolled out not only of active participants in the Small Business Administration’s 8(a) Business Development Program but also reviews of various types of small business contracts (such as 8(a) sole source and set-aside awards, preference-based awards, and small business set-aside awards over particular values). Join Crowell & Moring as we discuss what aspects of contract performance and teaming arrangements are being scrutinized (e.g., size/status eligibility, limitations on subcontracting compliance, reasonableness of market rates, etc.) and how these considerations can impact both small government contractors holding the prime contracts under review and their subcontractors. 

Please join Crowell & Moring’s Government Contracts Group on Wednesday, February 8, 2023 at 1:00 p.m. ET for a webinar on the National Defense Authorization Act for Fiscal Year 2023. 

In the second installment of Crowell & Moring’s webinar series, our Government Contracts attorneys will discuss the impacts of the current and expected supply chain issues on federal government contractors and their compliance responsibilities. Our panelists will discuss contract clauses that may be at risk as the supply chain delays continue, including requirements for domestic preferences, prohibitions on counterfeit parts, and protecting national security interests.  This panel will also cover the expected Government enforcement of supply chain-related compliance violations, including False Claims Act liability.

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