On November 3, 2025, Fifth Circuit Judge James C. Ho issued a concurring opinion that called on his court to revisit "serious constitutional problems with the qui tam provisions of the False Claims Act." United States ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, L.L.C.,
The opinion matters because it's the latest signal that federal judges across the country are questioning whether the FCA's qui tam device can survive constitutional scrutiny. And it comes at a moment when that question may finally reach the Supreme Court.
The Qui Tam Question Gains Traction
The False Claims Act allows private citizens to file lawsuits on behalf of the United States to recover damages for fraud against the government. When the government declines to intervene, relators can prosecute these cases entirely on their own, wielding the full authority of the United States without any direct supervision by the executive branch. If successful, they collect 25-30% of the recovery.
This arrangement has existed since 1863. But in recent years, an increasing number of judges have questioned whether it violates Article II of the Constitution, which vests executive power in the President and establishes procedures for appointing "Officers of the United States."
The concern is straightforward: qui tam relators exercise core executive power, that is, the authority to prosecute civil actions on behalf of the United States without being appointed by the President, a department head, or a court. They appoint themselves by filing suit. And in cases in which the United States declined to intervene, they operate largely free from executive control.
Building on Zafirov's Groundbreaking Decision
Judge Ho's concurrence builds directly on the most significant development in this area: Judge Kathryn Kimball Mizelle's September 30, 2024 decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC. That case made history as the first time any federal court ruled that the FCA's qui tam provisions are unconstitutional.
Judge Mizelle concluded that FCA relators are "Officers of the United States" under the Appointments Clause because they satisfy both requirements of that test. First, they exercise significant authority pursuant to federal law—the power to file, prosecute, and settle civil enforcement actions on behalf of the United States. Second, they occupy a "continuing position established by law," with statutorily defined duties, powers, and compensation.
Because relators are officers but aren't appointed through the constitutionally required process, Judge Mizelle held, the qui tam provisions violate the Appointments Clause. She dismissed the relator's case on that ground alone. Both the relator and the United States (which had initially declined to intervene) appealed to the Eleventh Circuit, where the case remains pending and oral arguments are set for December.
The Fifth Circuit Joins the Conversation
Judge Ho's concurrence in Gentry shows that constitutional skepticism about qui tam is spreading beyond the Middle District of Florida. Like Judge Mizelle, Ho emphasized that relators in declined cases exercise executive power without executive accountability.
The Gentry case involved a former hospital employee who alleged that her employer submitted false Medicare claims by allowing non-clinical personnel to influence patient admissions. The Fifth Circuit panel affirmed dismissal of the case on substantive ground when it found that the relator failed to plausibly allege that false claims were actually submitted or that any alleged misconduct was material to government payments.
Judge Ho agreed with that outcome. But he wrote separately to address what he sees as the constitutional elephant in the room. He noted that the Fifth Circuit's 2001 en banc decision in Riley v. St. Luke's Episcopal Hospital upheld qui tam constitutionality and remains binding precedent. Nevertheless, Ho urged the court to reconsider that precedent in light of more recent Supreme Court guidance.
His opinion echoed Justice Thomas's dissenting view in United States ex rel. Polansky v. Executive Health Resources, Inc. (2023), where Thomas wrote: "There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation."
Judge Ho also cited Justice Kavanaugh's concurrence in Polansky, joined by Justice Barrett, in which Kavanaugh signaled willingness to revisit qui tam constitutionality in an appropriate case.
Judge Duncan's Earlier Warning
Judge Ho isn't the first Fifth Circuit judge to question qui tam constitutionality in recent months. In March 2025, Judge Stuart Kyle Duncan wrote a separate concurrence in United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A. making similar points.
Duncan's concurrence came in a case involving allegations that a vascular surgery practice submitted thousands of false Medicare claims. After a five-day trial in 2022, a jury returned a $28.7 million verdict for the relators. The government had declined to intervene, leaving the relators to prosecute the entire case themselves for seven years.
Judge Duncan used that factual backdrop to illustrate the problem. He wrote that the case put "the FCA's flaws on vivid display." The relators initiated the enforcement action without executive approval. They litigated it without government oversight for seven years. Only on appeal did the government submit an amicus brief and even then, the government didn't fully support the relators' legal position.
Duncan's analysis tracked Judge Mizelle's reasoning in Zafirov. He concluded that qui tam relators are officers because they exercise significant authority and occupy continuing positions. He rejected arguments that historical practice validates qui tam, quoting Justice Thomas's view that "historical patterns cannot justify contemporary violations of constitutional guarantees."
Three Supreme Court Justices Already on Record
The Supreme Court hasn't directly addressed qui tam constitutionality since these recent challenges emerged. But three justices have signaled their views.
Justice Thomas's dissent in Polansky laid out the constitutional case against qui tam in detail. He argued that the qui tam device improperly empowers private individuals to control litigation vindicating public rights, but this is authority that Article II vests exclusively in the executive branch. He called the relationship between qui tam and Article II a "constitutional twilight zone."
Justice Kavanaugh, joined by Justice Barrett, wrote separately to note that "the Court should consider the competing arguments on the Article II issue in an appropriate case." That language suggests these two justices haven't made up their minds but are willing to hear the question.
With three justices on record expressing serious concerns or openness to the issue, and with multiple judges at the circuit and district court levels now questioning qui tam constitutionality, the stage appears set for Supreme Court review.
The Path to the Supreme Court
The most likely vehicle for Supreme Court review remains the Zafirov appeal pending in the Eleventh Circuit. If the Eleventh Circuit affirms Judge Mizelle's ruling, a clear circuit split would emerge. The Fifth, Sixth, Ninth, and Tenth Circuits have all previously upheld qui tam provisions. An Eleventh Circuit decision striking them down would virtually guarantee Supreme Court review.
Even if the Eleventh Circuit reverses, the petition for certiorari might still attract the Court's attention given the signals from Justices Thomas, Kavanaugh, and Barrett in Polansky.
A second potential vehicle is United States ex rel. Penelow v. Janssen Products LP, currently pending in the Third Circuit. That case involves a $1.64 billion judgment, one of the largest FCA verdict in history obtained by relators after the government declined to intervene. Janssen's appellate brief prominently features the constitutional challenge, supported by amicus briefs from major industry groups. The Third Circuit has never addressed this issue, and a decision either way could create or prevent a circuit split.
What This Means for FCA Defense
For now, the constitutional challenge remains an uncertain prospect. Most federal courts continue to follow pre-Polansky precedent upholding qui tam provisions.
Preserve the argument. Even in circuits with adverse precedent, defendants should raise constitutional challenges to preserve them for potential Supreme Court review. The issue is developing rapidly, and what seems foreclosed today may be live tomorrow.
Emphasize lack of accountability. The strongest aspect of the constitutional challenge is showing how relators make strategic decisions about legal theories, settlement demands, and litigation tactics that may diverge from or even contradict the government's own enforcement priorities.
Monitor the appeals. Watch both Zafirov in the Eleventh Circuit and Janssen in the Third Circuit. Decisions in either case could fundamentally reshape the FCA landscape.
Consider settlement implications. The constitutional uncertainty gives defendants in declined cases additional leverage in settlement negotiations. Relators may prefer to settle now rather than risk having their entire case dismissed on constitutional grounds.
Conclusion
Judge Ho's concurrence, coming on the heels of Judge Mizelle's Zafirov decision and Judge Duncan's Montcrief concurrence, shows that constitutional skepticism about qui tam is no longer confined to academic commentary or dissenting opinions. Multiple federal judges across different circuits now believe the FCA's qui tam provisions raise serious constitutional problems.
Whether the Supreme Court ultimately agrees remains to be seen. But for the first time in the statute's 162-year history, that question appears headed for definitive resolution. FCA defendants and their counsel should prepare accordingly
