United States of America, Ex Rel. Kevin G. Kelly v. The Boeing Company

This appeal presents several constitutional challenges to the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729 et seq. The question of the constitutionality of the qui tam provisions is one of first impression in this circuit. We hold that these provisions do not exceed the limitations of Article III of the Constitution, nor do they violate the constitutional principle of separation of powers, the Appointments Clause of Article II, or the Due Process Clause of the Fifth Amendment.

I. OVERVIEW AND BACKGROUND

The Boeing Company (“Boeing”) appeals the district court’s denial of its motion to dismiss a qui tam action under the False Claims Act (“FCA” or “the Act”). Qui tam plaintiff Kevin G. Kelly filed the action against Boeing on behalf of the United States to recover damages and penalties for allegedly fraudulent charges to the United States. Boeing claimed in its motion to dismiss that the district court lacked jurisdiction over Kelly’s suit because the provisions of the FCA which authorize qui tam actions are unconstitutional.

The district court rejected Boeing’s four constitutional challenges to the FCA, but certified an interlocutory appeal of its rulings on the…