The Fifth Circuit & the Qui Tam Provision: A History
The constitutionality of the False Claims Act’s (“FCA”) qui tam provision has been a settled question in the Fifth Circuit for nearly a quarter of a century.[1] In Riley v. St. Luke’s Episcopal Hospital, the Fifth Circuit, en banc, determined that the qui tam provision of the FCA did not violate the Appointments Clause or Take Care Clause of the Constitution.[2] However, in recent years, debates on the qui tam’s constitutionality have been rekindled[3] and a few Fifth Circuit judges have signaled a willingness to revisit this question.[4] That renewed skepticism underscores the importance of examining the reasoning underlying Riley, rather than relitigating a question it formally settled.
Riley v. St. Luke’s Episcopal Hospital
Central to the Fifth Circuit’s resolution of the qui tam provision’s constitutionality was its reliance on historical analysis. In 2001, the Fifth Circuit, like the Supreme Court in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, adopted a historical lens to evaluate the qui tam.[5] The court concluded that it was “logically inescapable that the same history that was conclusive on the Article III question [of standing] in Stevens … was similarly conclusive with respect to the Article II question concerning [the FCA].” [6]
Regardless of the historical lens used, the majority’s analysis ultimately turned on the assumption that the Executive did not possess exclusive authority to enforce the law.[7] Because enforcement was not exclusive, other mechanisms did not necessarily infringe on the Executive’s powers.[8] The court rejected an application of Morrison v. Olson’s significant authority test because the FCA’s qui tam involved “lesser uses of traditional Executive power” and required less Executive controls to prevent infringement on Executive authority.[9] Nevertheless, the court determined that FCA control mechanisms like veto power, intervention, dismissal over relator objection, and ability to intervene after the seal period for good cause were sufficient to prevent usurping of Executive power.[10] Moreover, the court found no evidence that non-intervened cases “thwarted” the government’s ability to exercise its powers.[11]
The court then concluded that a relator was not an officer using tests from Auffmordt v. Hedden and U.S. v. Germaine.[12] The court explained that relators were not officers because they lack a continuing and formalized relationship of employment with the U.S. government, which made them exempt from Appointments Clause considerations.[13]
The dissent rejected the majority’s reliance on history, expressing particular skepticism toward deference to practices inherited from England, unlike in the Article III standing analysis in Stevens.[14] It argued that history was highly relevant in determining a case or controversy traditionally resolved by the judicial process, but that history was less relevant in separation of powers questions because the separation of powers represented a break from tradition.[15] Additionally, the dissent argued that there was no extensive history of statutes allowing qui tams without the government’s involvement in the suit.[16] Lastly, the dissent emphasized that qui tams were often adopted in times of crisis without consideration for separation of powers when the Executive was relatively weak.[17] This line of thinking is echoed in later opinions in the Fifth Circuit.[18] Nevertheless, Riley remains the guiding precedent and has been followed in other circuits.[19]
Rumblings of a Reinvigorated Challenge to the qui tam provision
In the aftermath of Justice Thomas’ dissent in U.S. ex rel. Polansky v. Executive Health Resources Inc., challenges to the qui tam provision under Article II reignited.[20] Since Polansky, in the Fifth Circuit, at least two judges have questioned the qui tam’s constitutionality.
In 2005 in U.S. ex rel. Montcrief v. Peripheral Vascular Association, the majority declined to address the FCA’s constitutionality, noting that the question was foreclosed by Riley and the defendant had acknowledged as much.[21] However, in the concurrence, Judge Duncan questioned the constitutionality of the qui tam, arguing that the qui tam was inconsistent with the Appointments Clause and Take Care Clause.[22] Judge Duncan took issue with the relator’s apparent significant authority to conduct civil litigation on behalf of the U.S. and decide which legal theories to pursue.[23] According to Duncan, the qui tam ultimately allowed Congress to circumvent the Executive’s check on its power, making it a violation of the Take Care Clause as well.[24]
In U.S. ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, the majority did not address constitutionality arguments because neither party raised the issue, affirming the district court’s dismissal of the relator’s claims for pleading deficiencies.[25] However, Judge Ho wrote to express interest in revisiting the qui tam and to agree with Judge Duncan’s reasoning in Montcrief.[26] Judge Ho argued that qui tams infringed on the President’s Article II authority and distorted the power structures of the Constitution in favor of unaccountable private persons.[27] As with Riley’s dissent, both Judge Ho and Judge Duncan’s concurrences express a skepticism about significance of history in evaluating Article II, and more broadly separation of powers issues.
Although the constitutionality of the qui tam under Article II remains a salient issue, it’s an issue that most circuits have already resolved in favor of the qui tam. With challenges pending in the Eleventh Circuit, time will tell how, and if, this debate evolves in the Fifth Circuit.
[1] 252 F.3d 749 (5th Cir. 2001).
[2] Id.
[3] See e.g., U.S. ex rel. Zafirov v. Fla. Med. Assocs. LLC, 751 F.Supp.3d 1293 (M.D. Fla. 2024).
[4] See U.S. ex rel. Montcrief v. Peripheral Vascular Assoc., 133 F.4th395 (5th Cir. 2025) (Duncan concurring); U.S. ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, 157 F.4th 758 (5th Cir. 2025) (J. Ho concurring).
[5] Riley, 252 F.3d 749, 753.
[6] Id.
[7] Id. at 754.
[8] Id.
[9] Id. at 755-56.
[10] Id. at 756-57.
[11] Id.
[12] 137 U.S. 310 (1890); 99 U.S. 508 (1878).
[13] Riley, 252 F.3d 749, 758.
[14] Id. at 759-775.
[15] Id. at 759 (J. Smith dissenting).
[16] Id. at 775.
[17] Id.
[18] Gentry, 157 F.4th 758 (J. Ho concurring); Montcrief, 133 F.4th 395, 411-12 (J. Duncan concurring).
[19] See e.g., U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787 (10th Cir. 2002); U.S. ex rel. Penelow v. Janssen Products, LP, 2025 WL 937504 (D.N.J. Mar. 28, 2025); Josephs v. Amentum Services, 2025 WL 3223772 (D. Md. Nov. 19, 2025).
[20] See e.g., Zafirov, 751 F.Supp.3d 1293; U.S. & Indiana ex rel. McCullough & Holden v. Anthem Insurance Companies, Inc. et al., 2025 WL 2782576 (S.D. Ind. Sept. 30, 2025) (upholding the constitutionality of the qui tam).
[21] Montcrief, 133 F.4th 395, 411 (n. 3).
[22] Id. at 411-12.
[23] Id.
[24] Id.
[25] 157 F.4th 758.
[26] Id. at 766 (J. Ho concurring).
[27] Id.
