Health Law Advisor

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.

As we noted in our recent Insight, at least eight decisions from district courts around the country have rejected the reasoning in the September 30, 2024, opinion of District Judge Kathryn Kimball Mizelle from the U.S. District Court for the Middle District of Florida—holding that the  qui tam provisions in the False Claims Act (“FCA”) violate the Appointments Clause of Article II of the U.S. Constitution. Every other Court of Appeals to address the question has ruled similarly.