January 30, 2026
The U.S. Court of Appeals for the Sixth Circuit has just reaffirmed that the False Claims Act’s (FCA) qui tam provisions survive Article II challenges. This effectively keeps FCA whistleblower suits on firm footing while a potentially pivotal ruling on the constitutionality of the False Claims Act brews in the Eleventh Circuit.
On January 9, 2026, a Sixth Circuit panel denied petitions for interlocutory review in the consolidated TriHealth matters. The panel declined to revisit the constitutionality of the FCA’s qui tam scheme under the Appointments and Take Care Clauses. In doing so, the court cited its binding precedent—United States ex rel. Taxpayers Against Fraud v. General Electric Co. (1994)—as foreclosing Article II attacks on qui tam suits, and concluded that interlocutory review was unwarranted under 28 U.S.C. § 1292(b).
The ruling came from petitions arising out of two related FCA cases in the Southern District of Ohio against TriHealth entities. In those matters, defendants argued that allowing private relators to litigate in the government’s name violates the Constitution. The district court denied those motions. It did however, certify the Article II question for interlocutory appeal, noting emerging uncertainty in other courts. The Sixth Circuit’s refusal to take up the appeal leaves the district court’s constitutionality holding in place. Furthermore, it allows the FCA claims to proceed.
Judge Douglas R. Cole’s July 28, 2025 opinion rejected TriHealth’s challenges to Article III standing (reaffirming that relators sue via a partial assignment of the United States’ injury, consistent with Vermont Agency of Natural Resources v. Stevens) and to Article II (relying on Sixth Circuit precedent upholding the FCA’s qui tam framework). At the same time, he certified the constitutional question for interlocutory appeal given the growing debate sparked by recent Supreme Court writings and the then‑pending Eleventh Circuit case.
The Sixth Circuit’s action reaffirms circuit stability: unless and until the court goes en banc or the Supreme Court intervenes, Article II challenges are foreclosed in the Sixth Circuit. Practically, that means whistleblower‑initiated FCA suits can proceed—including declined cases—subject to the government’s continuing supervisory tools (e.g., intervention or dismissal).
This posture also aligns with the Supreme Court’s 2023 decision in Polansky, which, while not a merits ruling on Article II, underscored the United States’ ongoing control (including authority to dismiss) as a key structural feature of the FCA—an aspect many courts have read as tempering separation‑of‑powers concerns.
The countercurrent flows from United States ex rel. Zafirov v. Florida Medical Associates in the Eleventh Circuit. In September 2024, Judge Kathryn Kimball Mizelle (M.D. Fla.) became the first federal judge to hold the FCA’s qui tam device unconstitutional under Article II. Judge Mizelle concluded that relators are “officers” exercising significant executive authority without proper appointment. The Eleventh Circuit heard oral argument on December 12, 2025. A decision could create a square conflict with longstanding circuit authority elsewhere.
The panel’s focused intensely on the Appointments Clause tests (continuing position + significant authority) and the weight of historical practice supporting informer statutes and qui tam models dating to the Founding. Counsel and the government debated whether FCA relators perform functions reserved to the Executive, and how much executive supervision and control the statute truly affords in declined cases.
The current debate is fueled in part by separate opinions in Polansky: Justice Thomas’s dissent questioned the constitutionality of qui tam suits outright, and Justices Kavanaugh and Barrett suggested the Court should take up Article II in a suitable case—signals that have emboldened challenges like Zafirov.
For now, the FCA’s qui tam engine keeps running in the Sixth Circuit. Murphy v. TriHealth confirms that Sixth Circuit precedent controls, and district courts will continue to reject Article II challenges to the statute. But the next chapter will likely be written in Atlanta. The Eleventh Circuit’s impending decision in Zafirov could either cement the status quo or set the stage for Supreme Court review of the FCA’s core enforcement architecture.