False Claims Act Backed by Judges Since ‘Outlier’ Decision

A wave of pro-whistleblower opinions from federal judges suggests the False Claims Act remains on solid ground despite pointed questions from leading conservative judicial voices.

Whistleblowers, who help bring the US government billions of dollars in FCA recoveries each year, suffered a setback when a Florida federal district court said their suits violate Article II of the US Constitution by allowing “unaccountable” private actors to sue on the government’s behalf.

But FCA defendants may want to wait before celebrating the law’s downfall.

Time after time since 2024, federal district judges have ruled that whistleblower suits are constitutional, with a Tennessee federal district court calling Judge Kathryn Kimball Mizelle’s decision an “outlier.” And no appeals court has yet to conclude the suits are unconstitutional.

An appeal of Mizelle’s decision is pending at the US Court of Appeals for the Eleventh Circuit, in United States ex rel. Zafirov v. Fla. Med. Assocs. The issue is also pending at the Third Circuit, and Eli Lilly and Co. recently asked the US Supreme Court to find Article II requires throwing out a nearly $200 million FCA judgment in a Medicaid fraud suit.

According to most federal district judges, however, FCA whistleblowers aren’t subject to the appointments clause in Article II because they aren’t US officers. Whistleblowers only act temporarily, don’t have tenure or take a government salary, and don’t usurp too much authority from the executive branch, the judges have said.

These rulings may provide guideposts for appeals courts—and ultimately the high court—to keep the FCA intact.

There’s “no conflict” between the FCA and Article II, said Diego A. Zambrano, professor of law at Stanford University.

Qui tam suits “were legion before, during, and after the founding,” Zambrano said. “No one thought this was an intrusion into executive power.”

Zambrano, with others, submitted an amicus brief in support of the whistleblower in United States ex rel. Taylor v. Healthcare Assocs. of Texas LLC, where the Fifth Circuit is reviewing whether Article II requires throwing out a $16.5 million Medicare fraud judgment.

Fifth Circuit Judge James Ho recently expressed doubt about the constitutionality of whistleblower suits in a 2025 concurring opinion.

Whistleblowers are neither appointed by, nor accountable to the president, he said."So it’s not surprising that many members of the federal judiciary” have concerns.

Not Continuing

In a 2023 dissent, Justice Clarence Thomas said the FCA’s whistleblower provisions inhabit “something of a twilight zone” and may be “inconsistent” with Article II.

Justice Brett M. Kavanaugh, in a concurrence joined by Justice Amy Coney Barrett, said he agreed with Thomas’ concerns, and that the high court should address them in an “appropriate” case.

Companies facing FCA suits took that signal from the justices and started filing Article II motions in bids to toss those cases.

But only Mizelle, who clerked for Thomas, dismissed a case on Article II grounds.

It’s been “disappointing that no other district court judges have been willing to go out on a limb since Judge Mizelle’s decision,” said Christian Sheehan of Arnold & Porter Kaye Scholer LLP, which represents FCA defendants.

But Mizelle was “absolutely right” to conclude that the office of the relator—whistleblower—is functionally an office of the US because whistleblowers get civil enforcement authority to sue for fraud on behalf of the government, he said.

Dozens of other judges have upheld the FCA’s provision allowing whistleblowers to sue without government intervention.

A Wisconsin federal district court, for example, ruled in October 2025 that FCA whistleblowers don’t have continuing positions that US officers have, which makes the appointments clause inapplicable. No one can take over whistleblower duties in a specific suit, that court said, and a suit begins and ends with a particular whistleblower.

The continuing position issue “seems telling,” said Randy Beck, professor of law at the University of Georgia.

“If someone holding an office resigns, someone else will generally be selected to step in and assume their duties,” Beck said. “If a qui tam relator ‘resigns,’ the case lapses and will eventually be dismissed,” he said.

Beck filed an amicus brief to the Eleventh Circuit in support of the whistleblower in Zafirov. The defendants’ brief also cited Beck’s 2000 law review article.

The closest challengers have come to showing continuity is arguing the estate of a deceased whistleblower can continue a case, Beck said. But “that’s not standard practice with positions we recognize as offices,” he said.

A whistleblower’s position is “personal,” said a Maryland federal district court in November 2025, because whistleblowers sue to enrich themselves financially, as well as the government.

The government supports FCA whistleblowers, with the US Justice Department stating in one brief that whistleblowers aren’t officeholders subject to the appointments clause because their roles are limited in time and scope.

Authority

Another reason whistleblowers may not violate the appointments clause is because the attorney general retains “sufficient control,” such that they don’t exercise significant executive power, said Jennifer Nou, law professor at University of Chicago.

Whistleblowers lack “the government tools and means” that prosecutors have in carrying out their duties, according to a February 2026 Pennsylvania federal district court opinion.

And whistleblowers are subject to DOJ’s ability to “extinguish” a case it views as meritless, that court also said. The bar for the DOJ to do so is “exceedingly low,” it noted.

The government restricts whistleblowers’ power, a New York federal magistrate judge said in May 2025, because the government can intervene in an FCA suit, monitor and limit discovery, and settle it without the whistleblower’s consent.

“I have no doubt that in principle the statute is constitutional” because whistleblowers don’t have continuing positions and don’t exercise significant government authority, said H. Jefferson Powell, law professor at Duke University.

Concluding otherwise could have “absurd results,” he said, such as finding that cooperative federal-state programs are unconstitutional if state officials exercise too much authority.