History is History – Qui Tam Provisions No FCA Mystery

Judge Kenney of the Eastern District of Pennsylvania, in Jonathan Meyer v ADS Clinics, LLC, No. 21-cv-5303, on February 10, 2026, rejected a most recent attempt to gut the qui tam provisions from the federal False Claims Act (FCA) based on the Appointments, Vesting and Take Care Clauses of Article II of the United States Constitution.

Judge Kenney found that the Relators do not meet the first test of the Appointments Clause because they do not occupy an office and are not entitled to the benefits of office holders (tenure, duration, salary, or duties).  With regard to tenure, the Court noted that the Government’s ability to dismiss a relator’s suit upon intervention at any time deprives a relator of tenure. In addition, the Court noted that a relator’s role ends when their suit is dismissed, that they are not paid a salary, but merely have a contingent right to proceeds if there is a recovery by the government. The Court distinguished the position of special prosecutor, a position where one may be terminated and replaced by another because in pursuing a qui tam, the relator occupies a position that is personal to him or herself. The Court further held that a relator does not meet the second part of the test because they do not exercise significant authority pursuant to the laws of the United States. The Court contrasted the “tools and means” available to federal prosecutors (i.e., search warrants, subpoenas, and immunity) as compared to relators who can wield only the tools available to any other private litigant. The court also noted that the government’s ability to intervene in a qui tam case and either dismiss the case or take over the primary role as plaintiff also limits the relator’s available tools and means of advancing a FCA case.

The Court rejected the Defendants’ argument that the qui tam provisions also violate the Take Care and Vesting Clauses of Article II. After noting that executive power is “vested” in the President, who has the ability to hold others accountable and remove them from office, Judge Kenny rejected the notion that qui tam relators exercise executive power without adequate supervision. The Court noted the real limits on a qui tam relator’s ability to advance a FCA suit: the government’s right to intervene at any time, the government’s right to stay discovery, and the ability of the government to move for dismissal of a qui tam case, which the Court described as a “thorough scheme to ensure executive control over qui tam litigation.” Id. At Page 10.

Significantly, the Court noted that history, “founding-era statutes and practices … provide weighty evidence of the Constitution’s meaning.” After discussing qui tam statutes enacted from the time of the First Congress through the initial version of the FCA (at the time of the Civil War), the Court stated “history does not justify contemporaneous violations of constitutional guarantees, it sheds light on what the drafters intended. The long tradition of qui tam statutes, before and immediately after the Founding, supports the Relator’s qui tam action does not violate Article II.” The court noted that the US Supreme Court in Vermont Agency found that history was conclusive of a relator’s standing for Article III purposes, calling out “it is dubious” that the same history is less conclusive for Article II purposes.