Previewing Appellate Arguments on Whether the False Claims Act’s Qui Tam Provisions Are Constitutional and, if Not, the Remedy: What to Expect in 2026 and Beyond

• The Eleventh Circuit will hear oral argument regarding the constitutionality of the FCA’s qui tam provisions, which likely will be the first link in a chain of appellate cases leading to Supreme Court review of the issue.
• From the FCA’s enactment in 1863 to the FCA’s 1986 amendments, Congress has progressively encroached on executive powers to reduce the executive branch’s ability to enforce the law and increase qui tam plaintiffs’ powers to enforce the law.
• Although several appellate courts ruled decades ago that the qui tam provisions are constitutional, recent Supreme Court rulings have undermined those decisions.
• In light of these developments, the Supreme Court should rule, when the question is before it, that the FCA’s qui tam provisions are unconstitutional.
• If the Court finds the qui tam provisions to be unconstitutional, its likely remedy will be to sever and impose limiting constructions on the qui tam provisions, as is described below.

Recently, three Supreme Court Justices, unsolicited, invited inquiry into the constitutionality of the False Claims Act’s (FCA) qui tam provisions.¹ This inquiry has vast significance. The FCA is the government’s chief weapon to combat fraud against the government.² Since Congress modernized the FCA in 1986, the FCA’s qui tam provisions have been the government’s main source of recoveries in FCA litigation. From the 1986 FCA amendments to September 30, 2022, the vast majority of FCA actions filed have been qui tam actions, rather than FCA actions the Department of Justice (DOJ) files on its own, and the vast majority of all FCA recoveries have stemmed from FCA qui tam actions. Of the 21,480 FCA actions filed over this nearly 36-year time period, 15,246 (71%) of them were qui tam actions, and just 6,234 (29%) were non-qui tam matters instituted by DOJ on its own.³ Qui tam actions generated more than $50 billion in recoveries, while non-qui tam FCA actions generated only over $22 million in recoveries.⁴

Since the Supreme Court’s inquiry into the constitutionality of the qui tam provisions, U.S. ex rel. Zafirov v. Fla. Med. Assocs., scheduled for hearing before the Eleventh Circuit on December 12, 2025, is the first appellate test case.⁵ For background on what to expect in terms of arguments raised and the potential resolution, below, we set out the relevant history regarding the rights and powers of qui tam plaintiffs to enforce the FCA, as well as the anticipated arguments of defendants against FCA constitutionality and of the government in favor of FCA constitutionality.

This review of the FCA’s language, structure and history and recent Supreme Court precedent reveals that ultimately, the Supreme Court should find the FCA’s qui tam provisions unconstitutional, and, in the event that it does, the Supreme Court will likely attempt to sever and impose limiting constructions on the qui tam provisions.

Congress’s Increasing Encroachment on Executive Power: The Qui Tam Provisions from 1863 to 1986

The constitutional issue, at the broadest level, is to what extent Congress can divert core executive branch functions—such as determining which defendants to sue, which theories to raise, which motions to file, what evidence to obtain and what settlements to consummate—to private individuals because it believes that executive branch officials have not discharged executive branch functions to Congress’s satisfaction without breaching the Constitution’s Vesting, Take Care and Appointments Clauses.

Throughout the history of the FCA’s qui tam provisions—as Congress, the courts and DOJ have observed—relators’ primary objective has been to advance their own self-interest, and not the public interest. Congress, in enacting the qui tam provisions in 1863, noted that the qui tam provisions were based “upon the old-fashioned idea of holding out a temptation, and ‘setting a rogue to catch a rogue,’ which is the safest and most expeditious way … of bringing rogues to justice.”⁶ The Supreme Court, in Hughes Aircraft Co. v. U.S. ex rel. Schumer, recognized that “[a]s a class of plaintiffs, qui tam relators are different in kind than the Government. They are motivated primarily by prospects of monetary reward rather than the public good.”⁷ And DOJ has similarly provided numerous examples of relators acting contrary to the public interest when instituting actions on the government’s behalf, such as undermining executive agency policies or interfering with the administration of its programs, risking the exposure of classified information or military secrets, posing significant economic harm by potentially causing a critical supplier to exit a government program or causing DOJ to expend significant resources in participating or monitoring cases that DOJ would choose not to incur because it believes the underlying actions to be meritless.⁸

Notwithstanding relators’ pursuit of private interests, rather than the public interest, Congress vested relators with substantial executive powers in 1863 and then dramatically increased those powers when it modernized the FCA in 1986.

The FCA’s initial qui tam provisions, enacted in 1863, authorized relators to file suit to enforce the FCA.⁹ Under the 1863 Act, the government had no right to intervene in relators’ lawsuits, but relators pursued the government’s actions on their own.¹⁰ If a relator was successful, the relator obtained 50% of the recovery.¹¹ Notwithstanding the large potential recovery, there were few reported decisions prior to World War II.¹²

Based upon relators’ widespread abuse of the qui tam provisions, Congress substantially modified the qui tam filing process in 1943.¹³ Under the 1943 Act, relators continued, as under the 1863 Act, to exercise core executive branch powers to determine which defendants to sue, which theories to raise, which motions to file, what evidence to obtain and what settlements to consummate on the government’s behalf. But, under the 1943 FCA amendments, the government, like the current statute and unlike the 1863 Act, possessed the ability to intervene in relators’ actions.¹⁴ And yet, unlike the current statute, if the government intervened, relators had no right to participate in the government’s action as a party, including in discovery, or to object to the government’s dismissal or settlement of the lawsuit.¹⁵Under the 1943 FCA, relators’ share of the recovery was reduced to “fair and reasonable compensation” as the court determined, but not to exceed 25% of the recovery, and if the government intervened, relators’ share was capped at 10% percent of the recovery.¹⁶ As with the 1863 FCA, there were few reported FCA qui tam cases between 1943 and 1986.¹⁷

In 1986, Congress again amended the FCA and dramatically increased relators’ ability to encroach upon core executive branch functions. Under the 1986 amendments, relators continued to have unfettered power to determine whom to sue and theories of fraud to pursue on the government’s behalf. But, for the first time, in cases in which the Attorney General intervened, Congress additionally empowered relators to actively participate in the Attorney General’s case by being a party to the litigation, having the ability to participate in discovery, call witnesses¹⁸ and oppose the government’s dismissal and settlement of its own action so that relators could serve as a “check” on the executive branch and “keep pressure” on it to protect their “financial stake” in the executive branch’s lawsuit.¹⁹

Congress believed that this further encroachment of core executive branch powers was necessary to supplement scarce federal resources and believed that the executive branch had exercised poor judgment in prosecuting and resolving FCA actions. Specifically, the Senate Judiciary Committee Report noted that “available Department of Justice records show most fraud referrals remain unprosecuted and lost public funds, therefore, remain uncollected,” and that a “resource mismatch” exists between the federal government and large contractors who may marshal the efforts of large legal teams.²⁰ To correct the problem of DOJ being “overmatched,” Congress sought to privatize law enforcement, under some circumstances, by empowering the private citizenry with the ability to prosecute actions on behalf of the federal government, based on a belief that they “can make a significant impact on bolstering the Government’s fraud enforcement effort.”²¹

Defendants’ and Plaintiffs’ Constitutionality Arguments

Because of the substantial increase in relators’ power to execute executive branch functions, multiple FCA defendants instituted immediate challenges to the constitutionality of the qui tam provisions after the 1986 FCA amendments. In these cases, more than two decades ago, appellate courts uniformly ruled that the qui tam provisions are constitutional.²² However, as described below, since that time, Supreme Court precedent has largely superseded these early decisions. In light of these developments, set forth below are the anticipated arguments the defendants and the government will raise before the Eleventh Circuit in Zafirov and other appellate courts.

Defendants’ Core Arguments

Defendants’ core argument related to the unconstitutionality of the qui tam provisions centers on relators’ power to instigate and prosecute significant litigation on the government’s behalf while being self-appointed rather than being appointed in the precise manner the Constitution prescribes and without being subject to sufficient supervision or removal.

More specifically, defendants contend that the FCA’s qui tam provisions are unconstitutional because they are inconsistent with clear, unambiguous constitutional text and the standards set forth in recent Supreme Court case law. Article II of the U.S. Constitution vests “[t]he executive Power . . . in a President of the United States of America,” who “shall take Care that the Laws be faithfully executed.”²³ Under Article II, “only persons who are ‘Officers of the United States’” may exercise the “significant authority” to “conduct . . . civil litigation in the courts of the United States for vindicating public rights.”²⁴ “Officers of the United States” must be nominated by the President “with the Advice and Consent of the Senate,” except to the extent that executive functions are performed by “inferior Officers,” in which case appointment must be vested “in the President alone, in the Courts of Law, or in the Heads of Departments.”²⁵

“[T]he power to seek daunting monetary penalties against private parties on behalf of the United States in federal court” is “a quintessentially executive power.”²⁶ To adhere to the constitutional structure and prevent abuses of power, executive power must be exercised by those appointed under the Appointment Clause to secure a chain of dependence connecting the President to his subordinates and to “prevent[] the diffusion of the appointment power.”²⁷ To perform their constitutionally assigned duties consistent with the Vesting and Take Care Clauses, the President must have sufficient removal and supervisory control over “those who wield executive power on his behalf.”²⁸

The structure of the FCA’s qui tam provisions is facially inconsistent with Article II of the Constitution. FCA relators operate outside the executive branch, are unconstrained by DOJ policies, owe no fiduciary duty to the United States, maintain no agency relationship with the government, and need not pursue the government’s interests at all.²⁹ Rather than vesting the core executive power to execute the laws³⁰ in an appointed principal or inferior “Officer,”³¹ the FCA endows non-accountable, non-elected, self-interested relators with the power to determine whom to prosecute in actions seeking knee-buckling penalties against private citizens who are not “meaningfully controlled (through the threat of removal) by someone who is.”³²

The Government’s Rebuttal

The government, in its briefing on qui tam constitutionality, has asserted, in various “Statements of Interest,” several grounds regarding why relators’ lawsuits do not breach the Constitution: (i) the Attorney General has sufficient control over a relator; (ii) the relator has no “continuing” position; (iii) prior circuit court case law have found the qui tam provisions to be constitutional; (iv) qui tam statutes, including some that were adopted from England at the time of our founding, have a longstanding existence; and (v) the Supreme Court’s FCA Article III standing decision in Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000), effectively resolved Article II constitutional issues.

Defendants’ Reply

Defendants have strong rebuttals to each of the government’s contentions. First, the government’s contention that sufficient controls exist to limit relators’ role to discharge executive branch functions is wrong because relators exercise paradigmatic executive branch functions such as unfettered discretion to decide whom to investigate, whom to sue and which claims and theories of liability to pursue.³³ The controls on a relator’s statutory powers that the government cites—the ability to intervene, seek dismissal or veto the relator’s settlement on the government’s behalf—are either limited or nonexistent. The Attorney General, by herself, cannot intervene in a relator’s action to protect the government’s interest, but must seek court approval upon a showing of good cause,³⁴ which may not be granted.³⁵ Additionally, while the government is correct that some courts have ruled that the government has a veto power over a relator-led settlement that is not in the government’s interest, a significant number of courts have expressly rejected this viewpoint and allowed relators to consummate settlements that the Attorney General herself believes are not in the government’s interest, hence directly undermining the executive branch’s ability to “take Care” that the laws are faithfully executed and that appointments are made that advance the national interest.³⁶

Second, the government’s contention that a relator’s role is not continuous is wrong because relators have a continuing position in discharging several statutory duties—including filing the complaint under seal, serving the government a statement of material evidence, and litigating the action to completion as the relator chooses—and that position is continuous until the matter is complete.³⁷ The government asserts that a relator’s position is not continuing, under law, because the action is personal to a relator and ceases when the relator’s position is complete. But the government is mistaken because a relator’s position may continue even after the relator ceases to exist. Further, if a relator expires, the relator is replaced with a substitute to fill that position and the successor relator would have the same executive powers to exercise, as her predecessor relator, regarding which additional defendants to add and pursue, what theories to invoke, and what settlements to consummate, even if a settlement undermines the national interest.³⁸

Third, the government’s contention based upon prior court decisions is mistaken because those decisions have been superseded by subsequent Supreme Court cases.³⁹

Fourth, the government’s assertion that historical practices resolve the issue is wrong for several reasons. As an initial matter, history is not controlling because constitutional interpretation requires that “[t]ext controls over contrary historical practices,” and the clear text vests “[t]he executive Power … in a President” and prescribes the manner in which officers are to be appointed under the Appointments Clause.⁴⁰ Further, a simplistic review of history, in the context of the qui tam provisions, may lead to an erroneous result because, as Justice Thomas noted, an even more careful approach in construing constitutional provisions based upon historical patterns is required when a practice inherited from England implicates the separation of powers because of the Constitution’s creation of a separate, coequal executive branch, unlike the English system of parliamentary supremacy.⁴¹ And, finally, history does not serve as the ultimate guide because, as Marbury v. Madison, 5 U.S. 137 (1803), teaches, not even “enactment by the First Congress [is] a guarantee of a statute’s constitutionality.”⁴²

Fifth, and finally, the government is wrong in asserting that in Stevens, an Article III case, the Court validated that the qui tam provisions complied with Article II. In fact, the Supreme Court expressly disclaimed any such finding, stating that “[i]n so concluding, we express no view on the question whether qui tam suits violate Article II, in particular the Appointments Clause of § 2 and the ‘take Care’ Clause of § 3.”⁴³

What’s Next?

The Eleventh Circuit decision in Zafirov will likely be the first appellate court link on a chain to the Supreme Court ultimately determining whether the FCA qui tam provisions are constitutional.⁴⁴

Should the Eleventh Circuit affirm the district court, there is a good chance, given the interest Justices Thomas, Kavanaugh and Barrett have expressed in considering the issue, that the Supreme Court will grant certiorari on the question of whether the FCA violates Article II of the Constitution.

The Supreme Court should hold that the FCA’s qui tam provisions are facially unconstitutional. As detailed above in the description of Defendants’ arguments, historical practices cannot overcome the conclusion that under the plain text of the FCA, relators wield significant executive authority on behalf of the government and (i) occupy a continuous Office without proper appointment, in violation of the Appointments Clause of Article II;⁴⁵ and (ii) are not subject to meaningful supervision and threat of removal, in violation of the Vesting and Take Care Clauses of Article II.⁴⁶

This conclusion tracks with the evolution of the Roberts Court’s Article II jurisprudence. The Supreme Court endorsed, for the first time, principles of the unitary executive theory long championed by Justice Scalia in the 2010 decision Free Enterprise Fund v. Public Company Accounting Oversight Board, which held that the Sarbanes-Oxley Act’s dual for-cause limitations on removal for board members were unconstitutional because the President lacked sufficient control under the Vesting and Take Care Clauses of Article II.⁴⁷ The Court did not more fully embrace the unitary executive theory until Justices Gorsuch and Kavanaugh joined the Court in 2017 and 2018, respectively, ushering in an era of formalist separation-of-powers enforcement that extended Scalia’s dissent in Morrison into the controlling doctrine discussed in this review at length.⁴⁸ From 2021 to present, the Court has moved even further towards a maximalist view of executive power, and in so doing has shifted away from originalism—a trend best exemplified by its vision of Presidential immunity set forth in Trump v. United States.⁴⁹ Under this framework, the Supreme Court should find that the FCA—which endows non-accountable, non-elected, self-interested relators who are not meaningfully controlled by the executive branch with the power to determine whom to prosecute in actions seeking knee-buckling penalties—is facially unconstitutional.

If the Supreme Court does find that the qui tam provisions, as they have historically been read and understood, run afoul of Article II of the Constitution, the Court may first attempt to impose limiting constructions or conditions on the FCA to preserve the statute. But because there are significant challenges with this approach, the Court would be more likely, ultimately, to partially sever 31 U.S.C. § 3730 to preserve the remainder of the statute, in combination with limiting conditions on the term “right to conduct the action.”

Attempting to impose limiting constructions or conditions would mirror the Court’s approach in United States v. Arthrex, Inc., 594 U.S. 1 (2021).⁵⁰ In that case, the Supreme Court held that the exercise of “unreviewable authority” by Patent Trial and Appeal Board (PTAB) Administrative Patent Judges (APJs) during the inter partes review process violated Article II because the APJs were appointed as inferior, rather than principal, officers but exercised “significant authority” while their decisions were insulated from review and while their offices were insulated from removal.⁵¹ In assessing the proper remedy, the Court declined to invalidate the statute.⁵² The Court ultimately observed that “[i]n every respect save the insulation of their decisions from review within the Executive Branch, APJs appear to be inferior officers—an understanding consistent with their appointment in a manner permissible for inferior but not principal officers,” and therefore determined that the constitutionally problematic provision was 35 U.S.C. § 6(c), which provided that “each . . . inter partes review shall be heard by at least 3 members of the [PTAB]” and that “only the [PTAB] may grant rehearings,” as “[t]he upshot is that the [Patent and Trademark Office (“PTO”)] Director cannot rehear and reverse a final decision issued by APJs.”⁵³ The Court’s remedy was therefore to hold simply that 35 U.S.C. § 6(c) “cannot constitutionally be enforced to the extent that its requirements prevent the PTO Director from reviewing final decisions rendered by APJs.”⁵⁴

With respect to the FCA’s qui tam provisions, the Court could hold, for instance, that 31 U.S.C. § 3730 cannot be constitutionally enforced to the extent that its requirements prevent DOJ from exercising control and supervision over the litigation, including by intervening in, settling or dismissing a qui tam case. One significant challenge with this remedy is that unlike in Arthrex, where the Supreme Court required that the statute be read simply to prevent a principle executive branch officer from reviewing the decision of an inferior executive branch officer, reading this requirement into 31 U.S.C. § 3730(c) would necessitate the Court stripping away powers Congress expressly assigned to the judicial branch to repair an Article II problem, which the Court would be more likely to view as the type of fix that must be left to Congress.⁵⁵

Alternatively, or in tandem, the Court could attempt to narrowly read 31 U.S.C. § 3730(c) as imposing mere “procedural” limitations on the executive branch, and not as limiting the control of the executive branch over the action, by setting forth constitutionally avoidant definitions of terms like “fair, adequate, and reasonable under all the circumstances”⁵⁶ and “may nevertheless permit . . . upon a showing of good cause”⁵⁷ that ensure that the government retains unfettered discretion with respect to intervention, settlement and dismissal. But a significant challenge with this approach is that there simply is no reading grounded in the text of these provisions that could ensure the executive branch retains unfettered discretion when the judicial branch retains the power to limit its involvement—a weakness particularly evident in 31 U.S.C. § 3730(c)(3), which provides that upon declining to intervene, the relator “shall have the right to conduct the action,” and only that a court, “without limiting the status and rights of the [relator], may nevertheless permit the Government to intervene at a later date upon a showing of good cause,” but not that a court is required to do so.

Finally, any approach that seeks to impose limiting constructions or conditions could not sufficiently address the constitutional problem with the FCA’s qui tam provisions, as the relator still has, during the pendency of non-intervened litigation, the ability to litigate the action in full on behalf of the government, including making all case strategy decisions on behalf of the executive branch and even to bind the executive branch to non-favorable precedent. To find otherwise, the Court would need to read into the statute continued, meaningful supervision by the executive branch such that every strategic decision is reviewable by the government, despite the statute plainly providing that the relator “shall have the right to conduct the action” once the government declines to intervene, 31 U.S.C. § 3730(b)(4)(B), (c)(3).

Given these limitations, the Supreme Court would most likely sever part of 31 U.S.C. § 3730(c) to save the statute, consistent with common practice in Article II cases,⁵⁸ in combination with limiting conditions on provisions with the phrase “shall have the right to conduct the action” that ensures that the government retains control and supervision over the course of the litigation.⁵⁹ Below are the provisions most likely to be severed or partially severed, with potentially stricken language indicated in strikethrough, or to be limited in construction, with proposed remedial language read into the statute in bold.

• 31 U.S.C. § 3730(b)(4)(B): “Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall—notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action” as it pertains to procedural and non-dispositive matters, but the exercise of significant executive authority, such as filing dispositive motions, moving to dismiss, settling the case or making binding strategic decisions, must be left to the Government, and the Government must be able to later intervene at its discretion.
  
  
• 31 U.S.C. § 3730(c)(2)(A): “The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.”⁶⁰

• 31 U.S.C. § 3730(c)(2)(B): “The Government may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.”

• 31 U.S.C. § 3730(c)(3): “If the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action as it pertains to procedural and non-dispositive matters, but the exercise of significant executive authority, such as filing dispositive motions, moving to dismiss, settling the case or making binding strategic decisions, must be left to the Government, and the Government must be able to later intervene at its discretion. If the Government so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the Government’s expense).” When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.”

Conclusion

The Constitution empowers the President to execute the laws and appoint officers to ensure the President is appropriately held accountable for actions taken to execute the law. Express powers that Congress bestowed on relators—suing individuals and entities, developing theories of liability, obtaining evidence, settling and dismissing actions on behalf the United States—frustrate these constitutional commands.

However, even lesser powers Congress bequeathed on relators—the power to challenge the government’s settlements or dismissal of actions, oppose the government’s intervention, participate as a party, and concomitantly possess the power to increase the scope of discovery, call additional witnesses, pursue alternative theories, and join additional individuals and companies to the litigation⁶¹ —also undermine the President’s function to execute the law in the national interest.

In exercising even these lesser powers, relators, in qui tam litigation conducted across the country on a daily basis, possess leverage over the executive branch because if the government opposes the relator’s exercise over any of these powers, relators can seek relief from district court judges.⁶²

Consequently, DOJ lawyers, who ethically must pursue justice, must inevitably continuously negotiate with relators’ counsel, who seek to advance relators’ self-interest. The government, in advancing the public interest, may believe that a lesser settlement amount is appropriate, that the scope of discovery should be reduced, that certain witnesses should not be called, that certain theories should not be advanced, or that additional individuals or entities should not be joined to the litigation, but the government may compromise with relators to avoid court intervention. To the extent the government must retreat from the national interest in these negotiations to compromise to accommodate relators’ self-interest, our constitutional structure is further undermined.

The Eleventh Circuit’s ruling should be the first step in returning Article II, § 1, cl. 1, of the Constitution—“The executive Power shall be vested in a President of the United States”—to the plain meaning of the text, which, as Justice Scalia observed, is not that “some of the executive power” vests with the President, but that “all of the executive power” does.⁶³

Read Past Issues of The Salcido Report

September 23, 2025 - Circuit Split Regarding But-For Causation in False Claims Act/Anti-Kickback Act Cases: Are There Two Pathways to Establish FCA Falsity in These Cases or Just One?

March 15, 2024 - Courts Should Finally Rule That the False Claims Act Qui Tam Provisions Are Unconstitutional

July 12, 2023 - False Claims Act Knowledge Element after Schutte: What Is Lost, What Remains, What Companies Should Do Next to Minimize Exposure to Liability

April 28, 2022 - Multiple Appellate Courts Now Rule that Government and Relator Cannot Take Advantage of Ambiguous Law to File False Claims Act Lawsuit to Obtain Treble Damages and Civil Penalties

January 18, 2022 - OIG Joint Venture Advisory Opinion Does Not Consider Multiple Court Decisions That Undermine the Conclusions in Its Opinion

November 24, 2020 - When Can Opinions be “False” and Result in False Claims Act Liability: Three Circuit Courts Provide Conflicting Guidance

January 27, 2020 - False Claims Act – Year In Review: Five Decisions That Will Affect the Future of FCA Litigation

October 10, 2019 - 11th Circuit’s Decision in AseraCare: Important in Determining When Clinical Judgment Regarding Medical Necessity Can Result in an Overpayment and How Evidence Regarding Corporate Knowledge Must be Tied to Claims to Establish False Claims Act Liability

June 24, 2019 - Three Years After Escobar: Lessons Learned Regarding Plaintiffs’ Efforts To Neutralize Escobar and Opportunities This Practice Raises for Defendants

February 12, 2018 - False Claims Act Circuit Splits—FCA Issues That May Soon Reach The Supreme Court Or Lead To Congressional Amendment

October 9, 2017 - Under What Circumstances Can A Private Qui Tam Plaintiff Overrule Government Agency Experts’ Use Of Administrative Discretion To File False Claims Act Actions In The Post-Escobar FCA World?

September 26, 2016 - Recent Significant Case Law Developments Regarding What Constitutes a Reckless Interpretation of a Law and When Retention of an Overpayment Violates the False Claims Act

February 25, 2016 - What Must the Government Prove to Establish that a Defendant Recklessly Interpreted a Statute or Regulation in Violation of the False Claims Act?

December 21, 2015 - Understanding When An Overpayment Can Result in False Claims Liability and Why Current Court Precedent and Regulatory Guidance Is Mistaken

October 28, 2015 - Minimizing Exposure to Stark Law Liability in False Claims Act Cases by Isolating Those Who Determine Fair Market Value From Those Who Measure Contribution Margin or Other Similar Operational Data

October 1, 2015 - When a Violation of a Rule or Regulation Becomes an FCA Violation: Understanding the Distinction Between Conditions of Payment and Conditions of Participation

September 25, 2015 - False Claims Act Public Disclosure Alert

About the Author

Robert Salcido is a leading FCA practitioner.

Mr. Salcido has been lead counsel in several FCA actions in which he successfully defended clients in FCA actions that the government or relator filed at trial or summary judgment. Some of those cases include:

• Mr. Salcido was lead counsel for Golden Living in an FCA action where the federal government had sued Golden Living’s predecessor company, Beverly Enterprises, for $895 million, alleging that Beverly had engaged in an unlawful kickback scheme with McKesson Corp. in violation of the Anti-Kickback Act and the FCA. After 14 days of trial, the court ruled that Beverly and McKesson did not violate the FCA or the Anti-Kickback Act because their business negotiations were fair, reasonable and conducted in good faith. See United States of America ex rel. Jamison v. McKesson Corp., 900 F. Supp. 2d 683 (N.D. Miss. 2012).
• Mr. Salcido was lead counsel for Aegis Therapies and a Golden Living skilled nursing facility where the federal government had alleged that defendants provided medically unnecessary rehabilitation therapy. The district court granted defendants’ summary judgment motion, ruling that the government had used the wrong standard to assess whether the services were medically necessary and failed to prove that defendants’ certification regarding medical necessity was objectively false. See United States ex rel. Lawson v. Aegis Therapies, Inc., 2014 U.S. Dist. LEXIS 45221 (S.D. Ga. Mar. 31, 2015).
• Mr. Salcido was lead counsel for a defendant physician and multispecialty group practice that the government accused of FCA violations. The district court dismissed all the government’s claims on summary judgment. Ultimately, because the United States’ action lacked “substantial justification,” the U.S. was ordered to pay defendants more than $500,000 in legal fees. In making the ruling, the court ruled that Medicare fraud law is an area of expertise and ruled that it was undisputed that Mr. Salcido possessed such expertise. See United States v. Prabhu, 442 F. Supp. 2d 1008 (D. Nev. 2006).
• Mr. Salcido was lead counsel for Golden Living in an action where the relator and the government sued multiple defendants alleging that they violated the FCA because they knowingly created and operated a supply company in violation of Medicare Supplier Standards. The district court granted defendants’ FCA summary judgment motion regarding the Supplier Standards allegations, finding that the government’s prior administrative proceedings demonstrated that the defendant supply company was entitled to payment. See United States ex rel. Jamison v. McKesson Corp., 784 F. Supp. 2d 664 (N.D. Miss. 2011).

Mr. Salcido has authored a number of books and chapters in leading publications (including the American Health Lawyers Association, BNA Books and Bloomberg BNA) regarding the application of the FCA, including:

• False Claims Act & the Health Care Industry: Counseling & Litigation (5th ed. American Health Law Ass’n 2024) (Sixth Edition forthcoming in 2026).
• “The False Claims Act in Health Care Prosecutions: Application of the Substantive, Qui Tam and Voluntary Disclosure Provisions” in Health Care Fraud and Abuse: Practical Perspectives, Ch. 3 (3d ed. BNA Books 2013) (with annual supplements).
• “False Claims Act: Health Care Applications and Defenses” in Bloomberg BNA Health Law and Bus. Series No. 2650 (2012).

Because of his work successfully defending a number of FCA lawsuits, Mr. Salcido has been recognized in:

• Selected for inclusion in The Best Lawyers in America 2021.
• Recognized by BTI Consulting Group as 2020 Client Service All-Star which is based on in-depth interviews with general counsel and recognizes lawyers who have been identified as “delivering the absolute best levels of client service.”
• Recognized by The National Law Journal in its 2019 inaugural list of Health Care Law Trailblazers regarding those who have made an impact through new strategies or innovative court cases for several notable FCA wins.
• Recognized by The National Law Journal in its 2018 Winning Litigators chosen for their “great results for clients in high stakes matters” for obtaining a successful trial verdict in an FCA lawsuit.
• Chambers USA: America’s Leading Lawyers for Business (2006-2023). In the 2011-2023 editions of Chambers USA, Robert is listed under Healthcare: Regulatory & Litigation, Leading Individuals (Nationwide) (Band 1) or as Healthcare Leading Individuals (District of Columbia) (Band 1).
• Recognized by The National Law Journal in its 2014 Litigation Trailblazers & Pioneers as one of 50 “people who have made a difference in the fight for Justice” for his outstanding work in defending FCA lawsuits.
• Law360, which selected Robert as one of the four Health Care MVPs for 2012 based upon a successful trial verdict obtained in defense of a national skilled nursing facility chain in a $895 million FCA lawsuit the government filed.
• Recognized by Washington, D.C., Super Lawyers in the health care practice area (2008-2011; 2013-2020).

Robert also won awards for his governmental service, including:

• 1993 Department of Health and Human Services Office of Inspector General (OIG) Integrity Award (highest award OIG bestows to individuals outside of the OIG).
• 1992 United States Department of Justice Special Achievement Award (for Sustained Superior Performance of Duty).
• 1991 United States Department of Justice Special Achievement Award (for Sustained Superior Performance of Duty).

Before entering private practice, Mr. Salcido served as trial counsel for the U.S. Department of Justice Civil Fraud Section, which has nationwide jurisdiction over the FCA, where he led several successful prosecutions of the FCA on the U.S.’s behalf.

^{1 For example, Justice Thomas, in his dissent in U.S. ex rel. Polansky v. Executive Health Res. Inc., 599 U.S. 419, 449 (2023), wrote that “[t]here are substantial arguments the [FCA’s] qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” Justices Kavanaugh and Barrett echoed these concerns, noting “the Court should consider the competing arguments on the Article II issue in an appropriate case.” Id. at 442 (Kavanaugh, J., concurring). See also Wis. Bell, Inc. v. U.S. ex rel. Heath, 604 U.S. 140, 167 (2025) (noting that the FCA’s qui tam provisions “raise substantial constitutional questions under Article II” that the Supreme Court should consider “in an appropriate case”) (Kavanaugh, J., concurring, joined by Thomas, J.).}

^{2 U.S. ex rel. Vargas v. Lincare, Inc., 134 F.4th 1150, 1156 (11th Cir. 2025) (“The False Claims Act is the government’s primary weapon against fraud in federal programs.”) (citation omitted); U.S. ex rel. Johnson v. Raytheon Co., 93 F.4th 776, 783 (5th Cir. 2024) (“The False Claims Act … is the government’s primary litigation tool for the recovery of losses sustained as the result of fraud against the government.”) (citations omitted).}

^{3 See DOJ FRAUD STATISTICS – OVERVIEW: October 1, 1986 – September 30, 2022 (Feb. 7, 2023).}

^{4 Id.}

^{5 See 751 F. Supp. 3d 1293 (M.D. Fla. 2024).}

^{6 Cong. Globe, 37th Cong., 3d Sess. 956 (1863).}

^{7 520 U.S. 939, 949 (1997).}

^{8 See Memorandum from Michael Granston, Dir., Commercial Lit. Branch, Fraud Div., Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A) (Jan. 10, 2018); see also Memorandum Op. for the Att’y Gen. from William P. Barr, Assistant Att’y Gen., Off. of Legal Couns., Constitutionality of the Qui Tam Provisions of the False Claims Act 207–08, 217–18 (Jul. 18, 1989) (observing that a “relator is empowered to prosecute the government’s claim even when the Attorney General has determined there is no valid claim or that pursuing the suit is not in the interests of the United States” and citing to U.S. ex rel. Hyatt v. Northrop Corp., No. CV 87-6892 KN, 1989 U.S. Dist. LEXIS 18940 (C.D. Cal. Dec. 27, 1989) as “an example of a case in which the qui tam provisions have allowed a relator to force a suit that this Department would not have pursued,” where “extensive investigations of Northrop’s operations by the U.S. Attorney and the Air Force failed to produce evidence of fraud” and the records rebutted relators’ fraud allegations, but “[n]evertheless, the relators are permitted by the qui tam provisions to continue to pursue their suit on behalf of the Government to satisfy their personal purposes, whether for harassment or in hopes of forcing Northrop to pay them a settlement award”).}

^{9 Act of March 2, 1863, Ch. 67, 12 Stat. 696.}

^{10 Id.}

^{11 See id. at 698, §6.}

^{12 See Note, The Federal False Claims Act: The Informer as Plaintiff, 69 Harv. L. Rev. 1106, 1108 (1956) (“Until 1943, the act permitted a qui tam plaintiff to take fifty per cent of the recovery as a reward for his services. In spite of the size of the reward, few private actions were reported before World War II”).}

^{13 The genesis of the 1943 amendments was the avalanche of “parasitic” lawsuits—lawsuits copied from preexisting indictments or based upon congressional investigations—that were filed in the late 1930s. See Robert Salcido, False Claims Act & the Healthcare Industry: Counseling & Litigation, § 1:02 (5th ed. American Health Law Ass’n 2024) (setting forth legislative history to 1943 FCA amendments). At that time, enterprising relators revived the statute by bringing lawsuits in which the central allegations were copied from public information. This practice culminated in the Supreme Court case U.S. ex rel. Marcus v. Hess, 317 U.S. 537 (1943). In Marcus, the relator based his complaint entirely upon a criminal fraud indictment that he had copied from the court file. The United States asserted that relator should be dismissed from the action because he had contributed nothing to the discovery of the crime. Id. at 545-46. The Supreme Court, however, construed the FCA to permit a private person to bring an action even if he had copied his complaint from an indictment and had provided no original information regarding the defendants’ activities. Id. Based upon the Court’s ruling, relators filed a substantial number of qui tam actions. In the nine-month period following the Court’s decision in Marcus, 250 actions had been filed. 89 Cong. Rec. 10,845–46 (1943). Many of these were parasitic, derived from congressional committee hearings. S. Rep. No. 291, pt. 1, at 2 (1943). To stem these parasitic qui tam actions, Congress, in 1943, enacted a broad jurisdictional bar precluding courts from taking jurisdiction over any suit “whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.” Act of Dec. 23, 1943, c. 377, 57 Stat. 608, 609.}

^{14 57 Stat. 608, 609 (1943).}

^{15 Id. at 608 (“If the United States … shall enter appearance in [qui tam] suit the same shall be carried on solely by the United States”).}

^{16 Id. at 609.}

^{17 See Zafirov, 751 F. Supp. 3d at 1321 (noting that after the 1943 FCA amendment, the “FCA largely returned to dormancy until 1986, when further amendments animated by Congress’s generalized distrust of, and dissatisfaction with, the way the executive branch was carrying out its law enforcement responsibilities ushered in a new era of qui tam litigation”) (internal quotation and citation omitted).}

^{18 See 31 U.S.C. § 3730(c)(1). Congress granted relators party status and the ability to influence settlement amounts based upon testimony from a relator in a pre-amendment case depicting how, after intervention, the executive branch did not include him in discovery and how relator disagreed with the executive branch’s exercise of prosecutorial discretion to settle the government’s lawsuit. The House Judiciary Committee Report summarized the amendment’s purpose to preclude the relator from being excluded from the Attorney General’s action:}

^{Other provisions included in the bill involve the degree of participation of the relator if the Government enters the action. During the hearings, testimony was received from a Mr. John Gravitt of Cincinnati, Ohio. Mr. Gravitt was an employee of General Electric, Evendale Plant, who became aware that the company was defrauding the Government by falsifying time cards. Mr. Gravitt ultimately filed a qui tam action against General Electric, and he recited the problems he had encountered with the Government in attempting to prosecute this case. For example, in Mr. Gravitt’s case, the Government entered the action and therefore took over prosecution. Mr. Gravitt was then precluded from conducting his own discovery and complained that, in his opinion, the civil fraud case was not adequately investigated before the Government attempted to settle the case…}

^{… [T]he Committee bill expands the role of the relator so that when the Government enters an action filed by a relator, the relator remains a party to the suit ….}

^{The Government remains the primary litigant and has control of the litigation, but under this provision, the relator has access to all documents filed with the court, as well as the right to conduct discovery.}

^{See H.R. Rep. No. 99-660 at 23–24 (1986); see also id. at 30–31.}

^{19 See 31 U.S.C. § 3730(c)(2)(A)–(B). Congress believed that granting relators the power to contest the executive branch’s power to settle and dismiss cases was necessary so that private relators could serve as a “check” on the executive branch by protecting their “financial stake” in the executive branch’s lawsuit. The Senate Report, for example, in describing its provision allowing relator to challenge the government’s settlement or dismissal of an FCA action noted that it was intended to provide relators “with a more direct role not only in keeping abreast of the Government’s efforts and protecting his financial stake, but also in acting as a check that the Government does not neglect evidence, cause unduly delay, or drop the false claims case without legitimate reason.” See S. Rep. No. 99-345 at 25–26 (July 28, 1986) (hereinafter S. Rep. 345), reprinted in 1986 U.S.C.C.A.N. 5266, 5290–91. Similarly, House Sponsor, Rep. Berman, in describing these provisions, noted that they were needed so that relators would “keep pressure” on the executive branch in exercising its discretion in how to enforce the law so that it would “pursue the case in a diligent fashion”:}

^{Another reason for providing for this full party status is to keep pressure on the Government to pursue the case in a diligent fashion. Even the United States Government is not without financial limitations. It is not uncommon for Government attorneys to be overworked and underpaid given the demanding tasks and frequently overwhelming case loads they maintain. I do not say this to impugn the ability or character of Government attorneys, but only to reflect the harsh reality of today’s funding limitations of Government activities in all areas which include the budgets of the government’s prosecuting agencies. If the government can pass a law that will increase the resources available to confront fraud against the government without paying for it with taxpayers’ money, we are all better off. This is precisely what this law is intended to do: deputize ready and able people who have knowledge of fraud against the government to play an active and constructive role through their counsel to bring to justice those contractors who overcharge the government.}

^{*          *          *}

^{While the law enables the Government to enter into a settlement with the defendant, it does require Court review of that settlement to determine whether it is fair, adequate and reasonable under all the circumstances, the same test that courts now apply to the settlement of class action claims. The person initiating the action is given an opportunity to object to the settlement, including the development and presentation of evidence at hearing, before the court makes its final determination as to fairness.}

^{132 Cong. Rec. 29322 (Oct. 7, 1986).}

^{20 S. Rep. 345 at 4–8, reprinted in 1986 U.S.C.C.A.N. at 5269, 5273.}

^{21 Id.}

^{22 See U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 753–758 (5th Cir. 2001) (en banc); U.S. ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994); U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743, 753–759 (9th Cir. 1993).}

^{23 U.S. Const. art. II, §§ 1, 3.}

^{24 Buckley v. Valeo, 424 U.S. 1, 140 (1976) (cleaned up).}

^{25 U.S. Const. art. II, § 2.}

^{26 Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 219 (2020).}

^{27 Freytag v. Comm’r, 501 U.S. 868, 878 (1991).}

^{28 Seila L., 591 U.S. at 250.}

^{29 See Riley, 252 F.3d at 761 (Smith, J., dissenting).}

^{30 Heckler v. Chaney, 470 U.S. 821, 832 (1985); United States v. Nixon, 418 U.S. 683, 693 (1974).}

^{31 U.S. Const. art. II, § 2.}

^{32 Seila L., 591 U.S. at 225.}

^{33 See Seila L., 591 U.S. at 219 (finding that the power to seek daunting monetary penalties against private parties on the government’s behalf is “a quintessentially executive power”); Buckley, 424 U.S. at 138 (describing “[a] lawsuit [a]s the ultimate remedy for a breach of the law, and it is to the President . . . that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’”).}

^{34 31 U.S.C. § 3730(c)(3).}

^{35 See, e.g., U.S. ex rel. Odom v. Se. Eye Specialists, PLLC, No. 3:17-cv-689 (M.D. Tenn. 2021) (Dkt. No. 105 at 41:1–5). Further, as modern Supreme Court cases make clear, the fact that the executive branch could have final say over a person’s exercise of executive power does not suggest that that person is not an Officer for purposes of Article II—but rather that the person is an inferior Officer who must be appointed consistent with Article II. See Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237, 246–50 (2018) (rejecting argument that administrative law judge (ALJ) was a “mere employee[]” rather than an Officer because the agency could always decide not to adopt the ALJ’s non-final decision, instead finding that an ALJ is an Officer because the ALJ exercises “significant discretion” when adjudicating and carries out “important functions,” such as taking testimony, examining witnesses and conducting trials); Edmond v. United States, 520 U.S. 651, 665 (1997) (“[Court of Criminal Appeals] judges have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers, and hence they are inferior within the meaning of Article II.”); see also United States v. Arthrex, Inc., 594 U.S. 1, 23 (2021) (“Many decisions by inferior officers do not bind the Executive Branch to exercise executive power in a particular manner . . . .”). The Supreme Court has also repeatedly affirmed that an individual litigating cases with limited tenure is an inferior Officer. See Seila L., 591 U.S. at 217–18; Edmond, 520 U.S. at 661. Here, when a relator is litigating a qui tam action, the relator is an inferior Officer that exercises “significant discretion” over the manner in which the case is litigated and carries out the core “important function” of pursuing civil litigation for the United States, Buckley, 424 U.S. at 126, 140—i.e., “seeking daunting monetary penalties against private parties on behalf of the United States in federal court,” Seila L., 591 U.S. at 219.}

^{36 See, e.g., U.S. ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 722 (9th Cir. 1994) (ruling that “the government’s argument—that without intervention it possesses an absolute right to reject a proposed settlement at any time and for any reason—must be rejected as contradictory to the express language of § 3730(b)(4)(B), which gives the qui tam plaintiff ‘the right to conduct the action’” because the “right to conduct a qui tam action obviously includes the right to negotiate a settlement in that action” (citation omitted)); U.S. ex rel. Pratt v. Alliant Techsystems, 50 F. Supp. 2d 942, 948–51 (C.D. Cal. 1999) (rejecting the government’s position that a settlement relator negotiated with defendants should be struck as not in the government’s interest because the government did not establish that relator’s settlement with defendant was unfair or unreasonable); see also U.S. ex rel. Hullinger v. Hercules, 80 F. Supp. 2d 1234, 1240–41 (D. Utah 1999) (same).}

^{37 See Zafirov, 751 F. Supp. 3d at 1313–17; see generally Morrison v. Olson, 487 U.S. 654, 660–63, 670–73 (1988) (finding that position of Independent Counsel was an inferior officer even though position was for the purposes of single investigation).}

^{38 See, e.g., U.S. ex rel. Gose v. Native Am. Servs. Corp., No. 8:16-CV-03411-KKM-AEP, 2025 WL 1531137, at *5 (M.D. Fla. May 29, 2025) (“Sean Gose exemplifies the impersonal nature of the position of relator, proving that it remains a ‘continuing position.’ And because a relator undeniably asserts core executive power by prosecuting claims on behalf of the United States, a relator is an ‘Officer’ of the United States and requires constitutional appointment as such. That appointment did not occur here. In 2016, Dennie Gose and Brent Berry filed this FCA action ‘on behalf of the United States of America.’ Years later, Dennie passed away. But the duties Dennie undertook as a relator continued. Sean, Dennie’s son, stepped into Dennie’s shoes as personal representative of Dennie’s estate to prosecute the action and, along with Berry, pursued substantial monetary penalties for an alleged harm to the public fisc. In both this Court and the Eleventh Circuit, Sean and Berry determined the legal arguments to make and crafted the theories of liability to pursue on behalf of the United States. Like all FCA relators, no one appointed Sean and Berry to this Article II office. As a result, I grant the defendants’ motion for a judgment on the pleadings on the basis that Sean and Berry occupying the office of FCA relators violates the Appointments Clause.”) (citation omitted); Pratt, 50 F. Supp. 2d at 948–51 (authorizing relator’s settlement with defendant although opposed by government as not in national interest).}

^{39 See, e.g., Zafirov, 751 F. Supp. 3d at 1310–11 (observing earlier decisions finding that relators did not exercise core executive powers did not have “the benefit of more recent Supreme Court precedents” ruling that enforcement authority and charging discretion are core executive powers) (citing United States v. Texas, 599 U.S. 670, 679 (2023); TransUnion LLC v. Ramirez, 594 U.S. 413, 429 (2021); Arthrex, 594 U.S. at 11–23; Seila L., 591 U.S. at 219; and Lucia, 585 U.S. at 244–52).}

^{40 U.S. Const. art. II, §§ 1–2; United States v. Rahimi, 602 U.S. 680, 718 & n.2 (2024) (Kavanaugh, J., concurring); see also Marsh v. Chambers, 463 U.S. 783, 790 (1983) (“Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees.”).}

^{41 See Polansky, 599 U.S. at 450 (Thomas, J., dissenting) (“[W]e should be especially careful not to overread [early enactments] given that the Constitution’s creation of a separate executive branch coequal to the legislature was a structural departure from the English system of parliamentary supremacy, from which many legal practices like qui tam were inherited.”).}

^{42 Polansky, 599 U.S. at 450 (Thomas, J., dissenting); see generally Zafirov, 751 F. Supp. 3d at 1318–21.}

^{43 Stevens, 529 U.S. at 778 & n.8 (emphasis added).}

^{44 Since the three Supreme Court Justices invited further inquiry into the qui tam provisions’ constitutionality, the vast majority of district courts have ruled that the qui tam provisions are constitutional. See, e.g., U.S. ex rel. McCullough v. Anthem Ins. Cos., No. 1:21-cv-00325, 2025 U.S. Dist. LEXIS 192928, at *51 (S.D. Ind. Sept. 30, 2025) (observing that although Zafirov is “persuasive authority in the technical sense,” the court was “not persuaded in substance” and absent binding authority to the contrary found qui tam provisions constitutional); By v. Healthnow N.Y. Inc., No.16-CV-88, 2025 U.S. Dist. LEXIS 89157, at *9 (W.D.N.Y. May 9, 2025) (collecting cases); U.S. ex rel. Wallace v. Exactech, Inc., No. 7:18-cv-01010-LSC, 2023 U.S. Dist. LEXIS 207881, at *10–17 (N.D. Ala. Nov. 20, 2023); U.S. ex rel. Miller v. Manpow, LLC, No. 2:21-cv-05418, 2023 U.S. Dist. LEXIS 179199, at *5–13 (C.D. Cal. Aug. 30, 2023).}

^{Some district courts have acknowledged that because of pre-existing circuit precedent, they are bound to rule that the qui tam provisions are constitutional. See, e.g., U.S. ex rel. Relator LLC v. Tennyson, No. 2:23-cv-05887, 2025 U.S. Dist. LEXIS 194153 at *20 (C.D. Cal. Sept. 29, 2025) (“This Court is bound by the Ninth Circuit’s authority and thus rejects the defendants’ constitutional challenge to the FCA’s qui tam provisions.”) (citation omitted); Proctor v. Wound Care Mgmt., LLC, No. 18-4234, 2025 U.S. Dist. LEXIS 164160, at *7–8 (E.D. La. Aug. 25, 2025). At least one district court within a circuit that has ruled the qui tam provisions to be constitutional has certified the constitutionality issue for interlocutory appeal because reasonable jurists could disagree regarding whether the FCA violates Article II. See U.S. ex rel. Murphy v. Trihealth, Inc., No. 1:19-cv-168, 2025 U.S. Dist. LEXIS 143791, at *45–47 (S.D. Ohio Jul. 28, 2025) (observing that there is substantial ground for difference of opinion, based on pronouncements by some Justices regarding the constitutionality of the qui tam provisions from which one could conclude that “reasonable jurists certainly could disagree as to whether the FCA violates Article II,” and noting that if relators would otherwise be permitted to proceed that would “involve extensive discovery” and “require a substantial investment of both party and judicial resources, all of which would be for naught if the suit is constitutionally defective”).}

^{45 U.S. Const. art II, § 2.}

^{46 U.S. Const. art II, §§ 1, 3.}

^{47 561 U.S. 477 (2010)}

^{48 See, e.g., Arthrex, 594 U.S. at 23 (holding that Patent Trial and Appeal Board Administrative Patent Judges wielded unconstitutional authority during inter partes review, because the Director of the Patent and Trademark Office could not review their decisions and “[o]nly an officer properly appointed to a principal office may issue a final decision binding the Executive Branch in the proceeding before us”); Seila L., 591 U.S. at 215, 230 (holding the Director of the Consumer Financial Protection Bureau’s for-cause removal protection unconstitutional, emphasizing the President’s general “unrestricted removal power”); Lucia, 585 U.S. at 248–49 (applying broad interpretation of “significant authority” in finding that ALJs are Officers exercising “significant authority” because they issue initial decisions, take testimony, conduct trials and rule on evidence, rejecting argument that they are mere employees because they lack final decisionmaking authority, they operate under extensive review and their decisions are not binding without Commission approval).}

^{49 603 U.S. 593, 637–38 (2024) (rejecting originalist and textualist arguments counseling against the Court’s vision of Presidential immunity and noting, “[t]rue, there is no ‘Presidential immunity clause’ in the Constitution. But there is no ‘separation of powers clause’ either. Seila Law, 591 U.S., at 227, 140 S.Ct. 2183. Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President. See ibid.”).}

^{50 See also, e.g., United States v. Hansen, 599 U.S. 762, 781 (2023) (citing to canon of constitutional avoidance in adapting specialized, non-plain text reading of the term “encourages or induces” to avoid First Amendment overbreadth challenge).}

^{51 Id. at 23.}

^{52 Id. at 23–24.}

^{53 Id. at 24–25 (citing 35 U.S.C. § 6(c)).}

^{54 Id. at 25. The Court found that the Director otherwise had authority under the statute to review inter partes decisions because he was vested with the “power and duties” of the PTO. See id.}

^{55 See 31 U.S.C. § 3730(c)(2)(A) (“The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.”) (emphasis added), (2)(B) (“The Government may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.”) (emphasis added), (3) (“When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.”) (emphasis added).}

^{56 Id. § 3730(c)(2)(B) (setting forth the standard for the determination the court must make before allowing the government to settle).}

^{57 Id. § 3730(c)(3) (setting forth the standard for the determination the court must make when the government moves to intervene after the seal period).}

^{58 See, e.g., Seila L., 591 U.S. at 232–38 (severing unconstitutional removal provisions from the rest of the statute); Free Enter. Fund., 561 U.S. at 508–10 (severing unconstitutional tenure provisions from the rest of the statute).}

^{59 See, e.g., Arthrex, 594 U.S. at 23–25.}

^{60 In Polansky, the Court found that under this provision, courts should apply the voluntary dismissal standard set forth in Fed. R. Civ. P. 41. Id., 599 U.S. at 436–38. But this holding does not solve the Article II problem: whether subjecting the government’s enforcement discretion and ability to control relators’ lawsuits to judicial review renders the FCA’s qui tam provisions unconstitutional.}

^{61 See 31 U.S.C. § 3730(c).}

^{62 See id. (government can only dismiss action over relator’s objection after a hearing, can only settle over relator’s objection if, after a hearing, the court determines the proposed settlement is “fair, adequate, and reasonable,” and can only limit relator’s ability to participate in the government’s litigation upon a showing that relator’s actions “would interfere with or unduly delay the Government’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment”).}

^{63 Morrison, 487 U.S. at 614 (“To repeat, Article II, § 1, cl. 1, of the Constitution provides: ‘The executive Power shall be vested in a President of the United States.’ … [T]his does not mean some of the executive power, but all of the executive power.”) (emphasis in original) (Scalia, J., dissenting).}