On July 28, 2025, the U.S. District Court for the Southern District of Ohio certified for interlocutory appeal to the U.S. Court of Appeals for the Sixth Circuit the question of whether the False Claims Act’s qui tam provisions violate Article II of the Constitution. The twin orders were issued in two separate but strikingly similar cases by Judge Douglas Russell Cole, a 2019 Trump appointee.

Importantly, this will now be the third federal court of appeals to have an active appeal involving the question of whether the qui tam provisions are unconstitutional, joining the Eleventh and Third Circuits. Although the Sixth Circuit can decide not to hear this question, it is likely only a matter of time before a challenge to the constitutionality of the False Claims Act results in a petition to the Supreme Court, especially because several justices have expressed interest in this question. 

Background on Litigation

The underlying cases involve allegations that several defendants – an integrated health care system as well as several hospitals and physician groups – engaged in an unlawful physician compensation scheme that violated the Stark Law and Anti-Kickback Statute, and thus ultimately the False Claims Act. The first case was filed on behalf of the United States by the system’s former Chief Financial Officer, and the second was filed almost a year later by a neurosurgeon, who had also separately sued the defendants for age discrimination.

After several years of investigation, the government declined to intervene in both cases and the respective relators have since proceeded to control the litigation. The defendants moved to dismiss both cases on numerous grounds, including on the basis that the False Claims Act’s qui tam provisions violate Article II’s Appointments and Take Care Clauses of the U.S. Constitution.

FCA’s Constitutionality Issue Certified for Appeal

The District Court denied the defendants’ motions to dismiss in both cases, finding in relevant part that “long-settled Sixth Circuit precedent dooms” the constitutional challenges to the FCA. Per Judge Cole, “[t]he Sixth Circuit has specifically held in a reported decision that the FCA’s relator provisions do not violate either the Appointments Clause or the Take Care Clause,” citing United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994).

However, the District Court certified its order “for interlocutory appeal under 28 U.S.C. § 1292(b),” finding that “[r]ecent developments in Supreme Court caselaw could cause reasonable jurists to disagree, at least on the question of the FCA’s constitutionality under Article II.” The court went on to stay the entire case until the interlocutory appeal process is complete, recognizing that “the parties, and the judicial system, are better served by resolving that constitutional issue now rather than later” given that “a different outcome on that issue would be dispositive of the matter, coupled with the extensive discovery that an FCA action like this one likely will entail (discovery that would be pointless if the relators are constitutionally defective).”

Under 28 U.S.C. § 1292(b), a court may certify an order for interlocutory appeal if the Court is “of the opinion” that the order hinges on (1) “a controlling question of law,” (2) with “substantial ground for difference of opinion,” such that (3) immediate appeal “may materially advance the ultimate termination of the litigation.” The District Court quickly dispensed with the first and third elements, noting that Article II questions are certainly controlling and resolution of that question early in the case would potentially save substantial judicial resources and litigant expenses.

As to the second element – whether there is a substantial ground for a difference of opinion – the District Court found that there is. Despite the controlling precedent of Taxpayers, “reasonable jurists could certainly disagree as to whether the FCA violates Article II” and indeed already have – citing the pending Eleventh Circuit appeal in United States ex rel. Zafirov, No. 24-13581 (an appeal of a district court opinion that we covered in an earlier blog post here), and highlighting the concurring and dissenting opinions of Supreme Court Justices Kavanaugh, Thomas, and Barrett, raising substantial constitutional questions under Article II. See Wisconsin Bell, Inc. v. United States ex rel. Heath, 604 U.S. __,145 S. Ct. 498, 515 (2025) (Kavanaugh, J., concurring, joined by Thomas, J.); United States ex rel. Polansky v. Executive Health Resources Inc., 599 U.S. 419, 442 (2023) (Kavanaugh, J., concurring, joined by Barrett, J.); id. at 449 (Thomas, J., dissenting).

Sixth Circuit Will Now Consider Whether to Take Up Question

The fact that the District Court certified the question for interlocutory appeal does not necessarily mean the Sixth Circuit will hear it. The parties in each case filed Petitions for Permission to Appeal on August 7, 2025. In re Trihealth, Inc., et al. (Case No. 25-0306); In re Trihealth, Inc., et al. (Case No. 25-0307). The government’s response deadline has been extended to August 28, 2025. Thus, whether the Sixth Circuit decides to reconsider its Taxpayer precedent and potentially join the chorus of courts recently weighing in on the qui tam provisions remains to be seen. Regardless, these cases certainly call for a watchful eye over the next several months. 

Reed Smith will continue to follow developments as to qui tam actions, including these cases and new challenges that we expect will continue to be filed until the Supreme Court resolves the question of the constitutionality of the False Claims Act.  If you have any questions about these cases or aspects of the False Claims Act, please do not hesitate to contact the authors or the Reed Smith attorneys with whom you work.