Recent Decisions Signal Growing Minority on Challenges to False Claims Act Constitutionality.
Background
The False Claims Act (“FCA”)’s qui tam provisions—which empower private litigants, known as “relators,” to prosecute claims on the Government’s behalf—continue to face constitutional scrutiny, with recent judicial opinions reviving concerns over whether the provisions violate Article II of the U.S. Constitution. As these challenges gain traction, qui tam defendants should be aware of the evolving legal landscape and the potential implications for FCA defense strategies.
Majority View on Qui Tam Constitutionality
Until recently, the constitutionality of the FCA’s qui tam provisions appeared well-settled. Numerous circuits—including the Fifth, Sixth, Ninth, and Tenth Circuits—had previously affirmed the constitutionality of the qui tam provision, in some cases over vocal dissents and skeptical concurrences. See United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 758 (5th Cir. 2001) (en banc) (Smith, J., dissenting, joined by DeMoss, J.); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1050 (6th Cir. 1994) (Nelson, J., concurring).
A string of recent district court decisions have followed suit, repeatedly rejecting constitutional challenges to the qui tam provisions. See, e.g., United States ex rel. Heath v. Wisc. Bell, Inc., ___ F. Supp. 3d ____, 2025 WL 3033792, at *13 (E.D. Wisc. Oct. 29, 2025). Relying primarily on the body of circuit precedent that emerged in the late 1990s and early 2000s, these district courts have seen “no reason to go against the clear weight of authority by ruling that the FCA’s qui tam provisions are unconstitutional.” United States ex rel. Souza v. Embrace Home Loans, Inc., No. 1:22-cv-453-JJM-PAS, 2025 WL 3072653, at *1 n.1 (D.R.I. Nov. 4, 2025).
Minority View Gaining Steam
Notwithstanding the majority view on this issue, an increasing number of judges are voicing concern over the constitutionality of allowing private plaintiffs to bring fraud claims in the name of the Government.
In the wake of the United States District Court for the Middle District of Florida’s groundbreaking decision in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, which held that the FCA’s qui tam provisions violate Article II’s Appointments Clause, several judges—including two members of the Supreme Court—have emphasized the need to revisit whether the FCA’s qui tam provisions are consistent with the Constitution. See Wisc. Bell, Inc. v. United States ex rel. Heath, 604 U.S. 140, 167 (2025) (“The Act’s qui tam provisions raise substantial constitutional questions under Article II.”) (Kavanaugh, J., joined by Thomas, J.).
Notably, at the circuit and district court levels, these calls for renewed scrutiny have come from circuits in which the question of the qui tam provisions’ constitutionality was previously settled. In United States ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, L.L.C., for example, Judge Ho of the United States Court of Appeals for the Fifth Circuit called on his colleagues to “revisit whether there are serious constitutional problems with the qui tam provisions of the False Claims Act.” ___ F.4th ____, 2025 WL 3063921, at *5 (5th Cir. Nov. 3, 2025).
Similarly, in United States ex rel. Murphy v. TriHealth, Inc., Judge Cole of the United States District Court for the Southern District of Ohio certified for interlocutory appeal “the question of the FCA’s constitutionality under Article II.” No. 1:19-cv-168, 2025 WL 2104279, at *1 (S.D. Ohio Jul 28, 2025). Even though “long-settled Sixth Circuit precedent” made clear that the FCA’s qui tam provisions did not violate Article II, Judge Cole reasoned that “[r]ecent developments in Supreme Court caselaw could cause reasonable jurists to disagree” on the issue, thus warranting an immediate appeal. Id. The defendants’ petition for interlocutory review is currently pending before the United States Court of Appeals for the Sixth Circuit.
What’s on the Horizon
With several judges now openly questioning whether qui tam relators can lawfully bring claims under the FCA, the legal landscape for FCA enforcement may be on the brink of a seismic shift. Indeed, next month, the United States Court of Appeals for the Eleventh Circuit will hear argument in the Zafirov case. The United States Court of Appeals for the Third Circuit is likewise poised to hear argument on this issue in United States ex rel. Penelow v. Janssen Prods., LP, No. 25-1818. And, should the Sixth Circuit grant the petition for interlocutory appeal in Murphy, it will have the opportunity to reconsider its prior holding on the constitutionality of the qui tam device.
Barring a decision from the United States Supreme Court, there is a strong likelihood courts will continue to diverge on whether the FCA’s qui tam provisions are constitutional.
Husch Blackwell’s False Claims Act litigation and government enforcement teams are actively monitoring developments in the case law and will continue to provide updates as more courts weigh in on the constitutionality of the FCA’s qui tam provisions.