The U.S. Circuit Courts of Appeals are increasingly divided on key issues under the False Claims Act (FCA). These divisions tend to directly influence where cases are filed and how they are defended.
Below, we highlight several significant circuit splits affecting FCA litigation and explain why they matter to attorneys and in-house counsel.
Causation Standards in Anti-Kickback Statute–Premised FCA Cases
In United States v. Regeneron Pharmaceuticals, Inc. (1st Cir. Feb. 18, 2025), the First Circuit joined the Sixth and Eighth Circuits in adopting a strict “but-for” causation standard for FCA claims premised on violations of the Anti-Kickback Statute (AKS). Under this standard, the government must prove that the false claims would not have been submitted to Medicare absent the illegal kickbacks. This position directly conflicts with the Third Circuit’s more lenient “link” standard, which requires only a connection between the kickback and the claim.
The circuit split emanates from the interpretation of a single clause added to the Anti-Kickback Statute by the 2010 Patient Protection and Affordable Care Act. That provision, codified at 42 U.S.C. § 1320a-7b(g), states: "a claim that includes items or services resulting from a violation of this section of constitutes a false or fraudulent claim for purposes of [the FCA]". The disagreement among the circuits is a direct result of their differing interpretations of the phrase "resulting from." This provision created a new, per se pathway to FCA liability, distinct from traditional false certification theories, by automatically deeming a claim "false or fraudulent" if it resulted from an AKS violation.
The Circuit split is not merely a disagreement over a legal standard; it is a classic conflict between textualism and purposivism. The majority (First, Sixth, and Eighth Circuits) adopts a textualist approach, prioritizing the plain, ordinary meaning of the statutory language "resulting from" and drawing support from Supreme Court precedent interpreting similar phrases. The minority (Third Circuit) employs a purposivist approach, looking past the text to legislative history and the perceived congressional intent behind the 2010 amendment to justify a more expansive, plaintiff-friendly standard.
The timeline and nature of the appellate decisions reveal an apparent trend. The Third Circuit's 2018 decision in Greenfield established the initial, “lenient” standard. Subsequently, the Eighth Circuit in 2022, the Sixth Circuit in 2023, and the First Circuit in 2025 each had the opportunity to consider the Third Circuit's purposivist reasoning and explicitly rejected it in favor of a textualist, but-for standard. This does not appear to be a random divergence of opinion; it is a consistent and growing consensus against the minority position. This momentum makes the Third Circuit's "link" standard appear increasingly isolated and suggests that undecided circuits are more likely to be persuaded by the textualist arguments of the majority.
Regeneron has sharpened the conflict into a more pronounced and lopsided 3-1 split, substantially increasing the probability that the Supreme Court will intervene to establish a uniform national standard.
Diverging Views on Rule 9(b) Pleading Standards
The Eleventh Circuit’s decision in United States ex rel. Sedona Partners LLC v. Able Moving & Storage Inc. (July 25, 2025) created a direct split with the Fourth Circuit over whether facts learned in discovery can be used to satisfy Rule 9(b)’s heightened pleading requirements.
In Sedona Partners, the Eleventh Circuit allowed a relator to amend its complaint with specifics uncovered during discovery, holding that neither Rule 9(b) nor Supreme Court precedent limits the source of such information. In contrast, the Fourth Circuit has held that this approach undermines Rule 9(b)’s gatekeeping function, prohibiting the use of discovery to cure deficient pleadings.
This split creates a distinct forum-shopping incentive for relators, who may prefer to file in jurisdictions like the Eleventh Circuit where early pleading deficiencies can be remedied later. The Sedona Partners panel explicitly considered and rejected the reasoning of a prior, albeit unpublished, Eleventh Circuit decision, Bingham v. HCA, Inc., 783 F. App'x 868 (11th Cir. 2019). In Sedona Partners the Eleventh Circuit dismissed this precedent as neither binding nor persuasive.
This decision creates one of the most consequential procedural divides for FCA relators. A relator with strong, good-faith beliefs about a fraudulent scheme but lacking pre-complaint access to specific invoices or claims submitted to the government would likely see their case dismissed at the pleading stage in the Fourth Circuit. In the Eleventh Circuit, that same relator now has a viable pathway to survive a motion to dismiss by reaching the discovery phase and then using that information to amend the complaint. This transforms the Eleventh Circuit into a uniquely attractive venue for whistleblower cases that might be non-starters elsewhere.
Constitutional Challenge to the FCA’s Qui Tam Provision
A potentially seismic challenge to the FCA’s qui tam framework is pending before the Eleventh Circuit in United States ex rel. Zafirov v. Florida Medical Associates, LLC. The case arises from a Middle District of Florida ruling that the FCA’s qui tam provision violates the Appointments Clause by allowing private citizens—without formal appointment—to exercise core executive power in prosecuting claims on the government’s behalf. It is important to note that the district court's ruling is a significant breaking with decades of contrary precedent.
The court's reasoning was that by allowing a private relator to litigate a case on behalf of the United States, after the government declines to intervene, the statute is allowing an individual who is not a properly appointed "Officer of the United States" to wield "core executive power," namely, the power to prosecute violations of federal law. While the argument is not new, it was reinvigorated by Justice Thomas in his 2023 dissent from the denial of certiorari in United States ex rel. Polansky v. Executive Health Resources, Inc. In that dissent, Justice Thomas suggested that the FCA's qui tam provisions may well be unconstitutional under Article II, lending new credibility to an argument that had long been dormant. This is why Zafirov has suddenly become a "seismic challenge" after years on the jurisprudential fringe.
Nevertheless, the outcome could be transformative: an affirmance could eliminate the qui tam mechanism entirely, eliminating a relator’s ability to pursue FCA claims in matters where the government declines to intervene. In essence, shifting FCA enforcement almost exclusively to the DOJ and dramatically reducing whistleblower-initiated actions.
This is an important development in light of DOJ’s recent expansion of whistleblower infrastructure, as discussed in our article on DOJ enforcement strategy from July 29, 2025. How AI and Whistleblowers Are Reshaping DOJ Enforcement Strategy - The Suarez Law Firm, P.A.
Why These Splits Matter
The False Claims Act remains one of the federal government’s most potent enforcement tools, but its application is far from uniform across jurisdictions. The current splits on causation in AKS-based claims, Rule 9(b) pleading standards, and the constitutional validity of qui tam provisions underscore the importance of closely monitoring appellate decisions. With the possibility of Supreme Court review on the horizon, practitioners should expect these issues to remain at the forefront of FCA litigation strategy.
