On September 30, 2024, in United States ex rel. Zafirov v. Florida Medical Associates LLC, Judge Mizelle in the Middle District of Florida dismissed a non-intervened qui tam action under the False Claims Act (FCA) on the basis that the FCA’s qui tam provisions are unconstitutional.United States ex rel. Zafirov v. Fla. Med. Assocs. LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). Judge Mizelle also issued an opinion reaching the same conclusion in United States ex rel. Gose v. Native Am. Servs. Corp., No. 16-cv-3411, 2025 WL 1531137, at *1 (M.D. Fla. May 29, 2025). Judge Mizelle’s opinion held that the qui tam provisions violated the Appointments Clause of Article II by authorizing private individuals (relators) to prosecute cases on behalf of the United States. The defendants had also raised challenges to the qui tam provisions under the Take Care and Vesting Clauses, which were not addressed in the district court’s opinion. For more detail on the underlying case and decision, see this Client Alert.
The district court’s opinion came after Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett questioned the constitutionality of qui tam provisions in separate opinions in two separate cases.See Wisconsin Bell, Inc. v. United States ex rel. Heath, 604 U.S. 140, 166–67 (2025) (Kavanaugh, J., concurring, joined by Thomas, J.); United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 449 (2023) (Thomas, J. dissenting); Polansky, 599 U.S. at 442 (Kavanaugh, J., concurring, joined by Barrett, J.). For more detail, see these Client Alerts: US Supreme Court Upholds Broad, but Not Unfettered, Government Authority to Dismiss FCA Cases and US Supreme Court Justices Continue to Question Constitutionality of FCA Qui Tam Provision.
The September 1, 2026, unanimous panel opinion was authored by Circuit Judge Elizabeth Branch and joined by Circuit Judge Robert Luck and Senior District Judge Federico Moreno (S.D. Fla.), sitting by designation. The panel opinion vacated the district court’s opinion and held that qui tam relators are not officers of the United States because they do not occupy a continuing position established by law. This decision, on an issue of first impression in the Eleventh Circuit, is consistent with all other circuits to consider whether the FCA’s qui tam provisions violate the Appointments Clause.See Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 758 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757–59 (9th Cir. 1993); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 804–05 (10th Cir. 2002). Although the parties briefed whether the qui tam provisions were constitutional, including under the Take Care and Vesting Clauses, the panel declined to reach these arguments in the first instance.During the Court’s December 12, 2025, oral argument, Judge Luck raised the potential that there may be a constitutional issue that is not the Appointments Clause. This could signal that skepticism remains about the constitutionality of the qui tam provisions on other Article II grounds. Instead, the panel remanded the case with instructions for the district court to evaluate these other constitutional arguments.
The panel held that relators are not officers of the United States because they do not occupy a “continuing position established by law,” one of the two requirements under Lucia v. SEC to determine whether an individual is an officer of the United States.Lucia v. SEC, 585 U.S. 237, 245 (2018). During oral argument, Judge Luck also questioned litigants about why Justice Thomas’s dissent in Polansky had not addressed the continuing authority prong. Ultimately, this prong was the crux of the panel’s opinion. The panel found it unnecessary to address the other prong of the Lucia framework, whether relators exercise “significant authority.” The panel concluded that relators did not occupy a continuing position for three reasons. First, a relator's tenure is “occasional and temporary,” lasting only the length of a single case. A lengthy FCA litigation does not create a continuing position; rather, the proper inquiry is whether duties are permanent or intermittent. Second, a relator receives only a contingent fee tied to the success of a case — not a regular appropriation or continuing emolument or compensation. Third, a relator’s duties are personal and cannot be assumed by others. The panel held that “while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position.”
This decision marks yet another decision holding that the qui tam provisions of the FCA do not violate Article II of the Constitution. However, the Eleventh Circuit’s opinion rests on narrow grounds. Challenges to the qui tam provisions under the Take Care and Vesting Clauses remain undecided in the Eleventh Circuit, and it appears unlikely that they will be resolved for several years. Moreover, the First, Third, Fourth, Seventh, Eighth, and D.C. Circuits have not addressed the constitutionality of the qui tam provisions.Further, although the Tenth Circuit rejected similar qui tam challenges, it did so in an intervened case. Given the interest expressed by the US Supreme Court in hearing this issue, litigants should consider continuing to preserve constitutionality arguments at the district and appellate levels, even in circuits where some or all constitutional challenges to the qui tam provisions are settled law.