Although qui tam relators filed a record 1,297 complaints in 2025, they face an uncertain future. Multiple circuit courts of appeal are evaluating whether qui tam provisions of the False Claims Act (FCA) can withstand constitutional scrutiny. Arguments before the 11th U.S. Circuit Court of Appeals illustrate the issues also pending in the 3rd and 5th circuits on a legal practice William Shakespeare experienced personally.  

Overview of the Qui Tam Provisions

The qui tam provisions of the FCA authorize private citizens to bring civil actions in the name of the government to recoup losses caused to the government by fraud. Once a qui tam complaint is filed, its provisions require the government to evaluate the complaint, decide whether to intervene and allow it to join the suit or seek a dismissal. Alternatively, the government may decline to intervene, after which the relator may proceed with the lawsuit alone. 31 U.S.C. § 3730(c)(3).

Qui tam provisions have long proven an effective mechanism for fraud enforcement because relators are incentivized to bring cases by the promise of a portion of the recovery. Id. § 3730(d). Famously, Congress enacted the FCA during the Civil War to combat fraudulent government contractors (e.g., selling lame mules to the military).

The Appointments Clause

In United States ex rel. Zafirov v. Florida Medical Associates, LLC, a U.S. district judge in the 11th Circuit held qui tam provisions unconstitutional under Article II’s Appointments Clause, a decision based on a dissent by Supreme Court Justice Clarence Thomas in United States, ex rel. Polansky v. Executive Health Resources, Inc., that also captured the interest of Justices Brett Kavanaugh and Amy Coney Barrett in a concurrence. 599 U.S. 419, 442 (2023) (Thomas, C., dissenting). The trial court found the practice of relators to be unconstitutional on the basis that they perform as “officers” given the significant amount of executive authority afforded to them. Specifically, the court cited a relator’s ability to prosecute FCA cases as well as to bind the government to a decision.

On appeal of dismissal, the relator distinguished the relator’s role from an officer under the two-prong test for an individual to be deemed an “officer” under the Appointments Clause. To be an “officer” of the United States, an individual must both 1) occupy a continuing position established by law; and 2) exercise significant authority under the laws of the United States. Relator argued that qui tam relators do not fall within either of these prongs. First, of course, relators are not employees of the government. Further, a relator is not a continuing position nor is it created by statute or filled by courts or agencies when a relator exits a case.

Rather, the position starts and ends with a relator’s lawsuit, and a relator does not wield “significant authority” because the relator cannot perform government actions like “civil investigative demands, … obtain search warrants, or even require agency personnel to answer basic questions.”[1] Instead, if the government declines to intervene, the relator litigates entirely with the relator’s own personal resources and their power is no greater than other private civil plaintiffs. The relator even argued its power is more limited than a civil plaintiff because of the government’s control over a qui tam suit. 

On appeal, defendants argued that relators wield core law enforcement activities by bringing lawsuits on behalf of the government that continue even if the government declines to intervene. Relators satisfy both prongs of the test for an officer because they sue “in the impersonal name of the government, and they may be replaced in their duties by others. . . [t]hey perform functions that are expressly authorized and regulated by the FCA,” “[t]hey receive statutorily defined compensation,” “[t]hey initiate and prosecute actions that may span many years with lasting and preclusive effects,” and it is a regime that extends past any one relator. Moreover, a relator brings an enforcement action on behalf of the United States, which is one of the most important forms of executive power.

The Vesting and Taking Clauses

During oral arguments, the 11th Circuit also considered an issue not discussed by the trial court – whether the qui tam provisions violate the Vesting and Take Care Clauses. The relator maintained that the qui tam provisions enhance executive power by providing a third option to either allow fraud to continue or directing executive resources to enforcement. That option “permit[s] a knowledgeable private plaintiff to pursue the action using private resources, subject to continuing government oversight.” Beyond its enhancement of executive enforcement power, relators relied upon history and “the executive branch’s vigorous defense of the statute in this case” to demonstrate that the provisions do not hinder the executive branch’s ability to faithfully execute the laws of the United States.

Defendants argued that qui tam provisions contravene the Taking and Vesting Clauses because they “assign to private parties core executive power – the authority to litigate on behalf of the United States.” Defendants stressed how the provisions disperse control of the executive branch without providing the President meaningful control to supervise or remove the relators. Pointing to Supreme Court precedent, defendants asserted qui tam provisions cannot be squared with the level of government control required over individuals exercising executive powers.

Historical Perspective

Following an originalist analysis, both parties’ legal arguments focused on the history of qui tam provisions. The relator emphasized that the roots of these provisions spread back across the Atlantic, finding precedent in England long before the United States was founded. William Shakespeare’s father, for example, faced the slings and arrows of outrageous fortune – and financial ruin – as a defendant in several qui tam suits.

Defendants disagreed that history legitimizes the constitutionality of qui tam provisions. Arguing that the founders did not expressly provide for the use of qui tam suits, defendants disputed that historical British practice could support the constitutionality of the practice in American law. For the defendants, it seems irrelevant whether Shakespeare considered a qui tam suit to epitomize the oppressor’s wrong that must be borne.

Conclusion

Regardless of how the circuits determine whether relators will continue to be or not to be, in the normal course of the law’s delay, these important arguments seem destined for presentation to the Supreme Court.

Miles & Stockbridge’s government investigations and white collar lawyers will continue to monitor these cases and can advise clients on any questions they may have as this legal issue develops.

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