Sixth Circuit Reaffirms FCA Qui Tam Constitutionality As Eleventh Circuit Qui Tam Challenge Intensifies

Highlights

• Sixth Circuit reaffirms False Claims Act (FCA) qui tam constitutionality: The appellate court held that long-standing circuit precedent forecloses Article II challenges to the FCA's whistleblower provisions and dismissed the parties' petitions for an interlocutory appeal on this issue in two separate cases.
• Eleventh Circuit constitutional challenge intensifies: In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit heard oral arguments on whether a district court ruling holding that the FCA's qui tam provision violates Article II should be upheld, a decision that could have national implications.
• Continued exposure for FCA defendants in the Sixth Circuit: Healthcare providers and other defendants should expect qui tam actions to proceed absent en banc or Supreme Court intervention.

On January 9, 2026, the U.S. Court of Appeals for the Sixth Circuit denied two petitions for interlocutory appeal in In re TriHealth, Inc., et al., reaffirming long-standing circuit precedent that the FCA's qui tam provision does not violate Article II of the U.S. Constitution. This decision allows private relators to continue to pursue FCA claims on behalf of the United States within the Sixth Circuit and underscores the emerging divide among federal courts as constitutional challenges to the FCA's enforcement framework steadily increase.

Background
The interlocutory appeal petitions arose from two FCA actions filed against Ohio-based healthcare providers, including TriHealth, Inc., in which the defendants sought to dismiss the cases on constitutional grounds. Specifically, the defendants argued that the FCA's qui tam provision, which allows private whistleblowers to bring FCA claims in the name of the United States, violates the Appointments Clause and the Take Care Clause of Article II.

After the Ohio district court denied the motions to dismiss, the defendants sought certification for interlocutory appeal under 28 U.S.C. 1292(b), arguing that there was substantial ground for difference of opinion on the constitutionality of the FCA's qui tam mechanism, based in part on a recent ruling by another district court in Florida.

The Sixth Circuit's Decision
The Sixth Circuit, whose jurisdiction covers cases originating in Kentucky, Michigan, Ohio, and Tennessee, denied the petitions, holding that interlocutory review was unwarranted because controlling circuit precedent already resolves the constitutional question. The court relied on its 1994 decision in United States ex rel. Taxpayers Against Fraud v. General Electric Co., which held that FCA relators are not "officers of the United States" and therefore are not subject to the Appointments Clause.

The court emphasized that a "substantial ground for difference of opinion" does not exist where binding precedent squarely addresses the issue. Although defendants pointed to developments in other circuits and recent Supreme Court dissents, the Sixth Circuit made clear that such developments do not override existing circuit law. Under Sixth Circuit rules, only the court sitting en banc, or the Supreme Court, may overrule a published panel decision.

The Eleventh Circuit's Zafirov Case
While the Sixth Circuit's order preserves the status quo in that circuit, another key constitutional challenge to the FCA's qui tam provision is unfolding in the Eleventh Circuit, which has jurisdiction over federal cases originating in Alabama, Florida, and Georgia. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, a federal district court in Florida held that the FCA's qui tam provision violated Article II's Appointments Clause by authorizing a private relator to exercise executive authority without constitutional appointment.

The United States appealed the ruling to the Eleventh Circuit, which heard oral argument on December l2, 2025, with the panel focusing on historical practice and constitutional limits on private enforcement of federal law. An affirmance would create a circuit split, placing the Eleventh Circuit in conflict with the Fifth, Sixth, Ninth, and Tenth Circuits, which have upheld the constitutionality of the FCA's qui tam provisions against Article II challenges. Such a split would substantially increase the likelihood of Supreme Court review of the constitutionality of the FCA's qui tam provisions.

Practical Implications for FCA Defendants
Healthcare providers and other FCA defendants should continue to expect aggressive enforcement by whistleblowers in the Sixth Circuit. Constitutional arguments challenging the qui tam framework may be preserved for appeal, but they are unlikely to succeed at the motion to dismiss stage absent a change in controlling precedent in the Sixth Circuit. At the same time, Zafirov and similar cases confirm that constitutional challenges to the FCA's qui tam provisions are gaining traction and should be carefully monitored.

Our team regularly advises healthcare providers and other companies on all aspects of False Claims Act risk and enforcement. We assist clients with internal investigations, responses to government inquiries and subpoenas, FCA litigation and appeals, and compliance program assessments designed to reduce whistleblower and FCA risk. We also counsel clients on constitutional and statutory defenses as FCA law continues to evolve. If you have questions about this decision, the Zafirov appeal, or FCA exposure more broadly, we are available to help.

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