The Third Circuit recently heard oral argument on the ongoing question regarding the constitutionality of the qui tam provision of the False Claims Act (FCA). The issue arose in United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818 (3d Cir.) — a non-intervened qui tam that went to trial and ultimately led to a jury rendering a whopping $1.64 billion verdict against Janssen. The panel included Judge Paul Matey, Judge Cindy K. Chung, and Judge Arianna J. Freeman.
Background
In recent years, Supreme Court Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett have voiced their concerns that the FCA’s qui tam provision violates Article II of the Constitution because relators exercise core executive authority without being properly appointed as “officers” of the United States by the president (see United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023); Wisconsin Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498 (2025)). This
