Almost two years after Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida became the first federal judge in the country to declare the qui tam provisions of the False Claims Act (FCA) unconstitutional, the U.S. Court of Appeals for the Eleventh Circuit vacated Judge Mizelle’s September 30, 2024, order and held that the FCA’s qui tam provisions do not violate the Appointments Clause of the U.S. Constitution.
The case now returns to the District Court.
On September 1, 2026, a unanimous panel of the Eleventh Circuit concluded in United States ex rel. Zafirov v. Florida Medical Associates LLC that qui tam whistleblowers, or relators, who bring a case under the federal FCA in the name of the U.S. government are not “officers of the United States” occupying a “continuing position established by law.”
However, the lower court considered only the Appointments Clause; on remand, the Middle District of Florida must consider, in the first instance, whether the same qui tam provisions violate the Constitution’s Vesting and Take Care clauses.
The Appointments Clause Question
The case began when relator Clarissa Zafirov, a physician, brought an FCA suit against her employer, Florida Medical Associates, and related entities, alleging Medicare fraud. Though the attorney general enforces the statute, FCA qui tam relators may also bring a case and receive up to 30 percent of the proceeds: a powerful incentive for whistleblowers.
The defendants filed a motion for judgment on the pleadings, asserting that the FCA’s qui tam provisions violated the Constitution’s Appointments, Vesting, and Take Care clauses. Judge Mizelle agreed as to the Appointments Clause—i.e., that Zafirov lacked authority to prosecute on behalf of the United States—and dismissed the case.
As Epstein Becker Green has written, Judge Mizelle decided the Appointments Clause issue by concluding that “Zafirov exercises significant authority, indeed core executive power, under the continuing position of relator but lacks proper appointment under the Constitution.” Using a test from Lucia v. SEC,[1] Judge Mizelle first determined that an “officer of the United States” is one who “exercises significant authority pursuant to the laws of the United States” and “occupies a continuing position established by law.” The judge was unpersuaded by historical examples to the contrary and determined without controversy that Zafirov was not, in fact, appointed by the President of the United States.
Having weighed those points, Judge Mizelle declined to address defendants’ other Article II arguments.
Judge Mizelle’s 2024 decision made headlines, as it gave traction to the 2023 dissent in U.S. ex rel. Polansky v. Executive Health Resources, in which Justice Clarence Thomas called the FCA’s qui tam provisions a “constitutional Twilight Zone.”[2] Yet while many defendants in FCA cases challenged the constitutionality of the qui tam provisions following the dissent, district courts around the country did not follow Judge Mizelle’s lead (see a related Epstein Becker Green Insight describing those cases here).
The Eleventh Circuit Decision
In the September 1 opinion, the Eleventh Circuit agreed with Zafirov and the United States that relators do not occupy “a continuing position established by law,” meaning they are not “officers of the United States” who must be presidentially appointed under the Appointments Clause.
At oral argument, Judge Robert J. Luck of the Eleventh Circuit asked if the Supreme Court—or any other federal appellate court—had ever applied the Appointments Clause to someone who was not paid by the government through either an employment or independent contractor relationship. The attorneys were not aware of such a case.
A relator’s tenure and duration, the Eleventh Circuit said, is not permanent; it is intermittent, occasional, and temporary, lasting the length of one case. A relator is not required to keep a place of business. Unlike an officer, a relator does not receive a “continuing emolument,” and his or her duties are personal—they cannot be assumed by others.
The court further rejected defendants’ attempt to liken an FCA relator to an independent counsel, held to be an officer in the 1988 case of Morrison v. Olson.[3] This simple solution relieved the court from also considering (1) whether relators are exercising executive power or (2) whether they exercise significant authority under the Appointments Clause.
And though counsel suggested at oral argument that the Eleventh Circuit might consider all three constitutional issues, the panel declined to address the Vesting and Take Care clauses. In directing the district court to consider those two clauses in the first instance, the Eleventh Circuit cited only a footnote indicating that its role was to review Judge Mizelle’s reasoning on the constitutionality of the statute as a question of law—and that it would “invalidate an act of Congress only ‘for the most compelling constitutional reasons.’”[4]
The Eleventh Circuit now joins four other circuits to have considered and rejected the Appointments Clause question: the Fifth, Sixth, Ninth, and Tenth.
Back to the Twilight Zone?
With the federal government’s current reliance on FCA whistleblowers to carry out Trump administration priorities—from data mining to fighting health care fraud to eliminating gender-affirming care to threatening diversity, equity, and inclusion initiatives—it is indeed tough to envision a legal landscape without qui tam relators.
But the matter is not over. With neither Judge Mizelle nor the Eleventh Circuit addressing whether the FCA qui tam provisions violate the Constitution’s Vesting and Take Care clauses, that task now falls back to the Middle District of Florida on remand.
The district court may have some guidance, as the Third Circuit heard oral argument on all three questions on March 18, 2026, in United States ex rel. Penelow v. Janssen Products LP, No. 25-1818 (3d Cir.). While the Third Circuit has yet to issue a decision in that case, court documents outline the arguments with respect to Article II.
“Article II dictates that all executive power be ‘vested’ in the President…. And with that power, Article II directs the President to ‘take Care that the Laws be faithfully executed…,’” Defendant Janssen Products writes in its appellate brief. “Together, these provisions give the President the ‘authority to enforce federal law’ and bring legal actions on behalf of the United States.”[5]
Similarly, the Chamber of Commerce of the United States of America and the American Tort Reform Association—in an amicus brief in support of defendant—assert that the Framers opted not to vest private entities with the executive power of the president.
“Congress may not authorize [i.e., qui tam relators, who may receive a portion of the proceeds] to litigate for the United States” in violation of the Vesting Clause, amici contend. “As independent and self-appointed bounty hunters, they operate well outside Article II’s carefully crafted scheme.”
Regarding the Take Care Clause, “‘the choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs (and their attorneys),’” amici argue.
Both the defendants and amici in Penelow note that in Polansky, Justice Brett Kavanaugh issued a concurring opinion, joined by Justice Amy Coney Barrett, agreeing with Justice Thomas that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private litigators may not represent the interests of the United States in litigation.” To Thomas’s quote, the concurring justices added, “the Court should consider the competing arguments on the Article II issues in an appropriate case.”
If Polansky is any indication, a Supreme Court showdown may be on the way.
Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this post.
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ENDNOTES
[1] 585 U.S. 237 (2018).
[2] 599 U.S. 419 (2023).
[3] 487 U.S. 654 (1988).
[4] Mistretta v. United States, 488 U.S. 361, 384 (1989) (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986)).
[5] Brief of Appellant Janssen Products at 49, United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818 (3d Cir. July 14, 2025).
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