A small but growing number of federal judges are questioning the constitutionality of the qui tam provision of the False Claims Act (FCA), McGuireWoods partners Timothy Fry, Michael J. Podberesky and Edwin O. Childs Jr. and associate Michael A. Brody wrote in an April 28, 2025, article in Westlaw Today. The analysis originally was posted on The FCA Insider, a McGuireWoods blog.
The attorneys noted that Judge Stuart Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit authored a concurring opinion to a March 2025 decision that expressed skepticism about the constitutionality of the FCA’s qui tam provision. The concurring opinion indicates the qui tam provision violates the Constitution’s Appointments Clause because it allows private citizens to exercise the power of the executive branch despite not being appointed or confirmed as an officer of the United States.
Last fall, a U.S. district court in Florida ruled, for the first time, that the provision is unconstitutional. That decision is on appeal.
Both opinions rely heavily on U.S. Supreme Court Justice Clarence Thomas’ dissent to a 2023 decision in which he suggested the provision is unconstitutional. Many district courts noted the provision’s long history and declined to disturb precedent, but the smattering of alternative opinions shows some judges are eager to take on the issue, the authors said.
“While Justice Thomas’s dissent in Polansky appears to be gaining traction, there is hardly a consensus on the issue,” the authors wrote. “Defendants facing qui tam suits should thus be mindful of which federal circuit they are litigating in, as there may be a growing divergence of both binding and persuasive authority across the country, unless and until the Supreme Court weighs in.”