With Zafirov Oral Argument Looming, Another District Court Rejects Challenge to Constitutionality of Qui Tam Provisions

In U.S. ex rel. Heath v. Wisconsin Bell Inc., a judge on the U.S. District Court for the Eastern District of Wisconsin held that the qui tam provisions of the False Claims Act (FCA) do not violate Article II of the U.S. Constitution. Although the decision marks yet another district court victory for relators, the constitutionality issue is almost certainly destined for the Supreme Court. The next step in the road to the high court will take place on December 12, 2025, when the Eleventh Circuit hears argument in the Zafirov case (please check back in with Qui Notes for a recap after the argument).

The Heath case has a long history dating back to 2008, which we previously discussed in our September 2023 and February 2025 Qui Notes Blogs. After several trips to the Seventh Circuit and one to the Supreme Court, on October 29, 2025, the defendant sought summary judgment on the ground that the qui tam provisions violate the Appointments Clause of Article II. The U.S. Department of Justice filed a statement of interest in opposition, as it has in the other cases that have raised this issue.

The district court rejected the constitutional challenge, holding that a relator does not qualify as an “Officer of the United States.” Under Article II, an “Officer of the United States” is someone who (1) exercises “significant authority pursuant to the laws of the United States,” and (2) holds a position that is “continuing and permanent.” The court held that a relator does not satisfy the “significant authority” requirement, reasoning that their power is limited because, upon initiating an action, they must notify the U.S. government, who is then given the opportunity to investigate and intervene and, if deemed necessary, can effectively take over prosecution of the case. The court also noted that the government can dismiss the action over the objection of the relator or restrict the participation of the relator. As to the second requirement, the court found the position of a relator is not “continuing and permanent,” explaining that the role is fundamentally personal and ends with the lawsuit, cannot be transferred to another person, and unlike offices such as the Attorney General — which remain in existence regardless of who occupies them — the relator’s position exists only for the duration of a single case.

Stay tuned to Qui Notes for continued coverage of challenges to the constitutionality of the qui tam provisions, including a post-Zafirov argument recap.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.