The False Claims Act's private enforcement engine, the mechanism that lets ordinary citizens sue fraudsters on the government's behalf and keep a share of the recovery, has survived the most serious constitutional threat in its modern history. On September 1, the U.S. Court of Appeals for the Eleventh Circuit held that the act's qui tam provisions do not violate the Appointments Clause, reversing a Florida district court ruling that had declared them unconstitutional and put the entire apparatus of whistleblower fraud enforcement in doubt.
The case began with a Medicare fraud allegation against Florida Medical Associates and became a constitutional test of the act itself. In September 2024, Judge Kathryn Kimball Mizelle of the Middle District of Florida issued a first-of-its-kind ruling that qui tam relators, the private whistleblowers who sue in the government's name, are officers of the United States who must be presidentially appointed. Her reasoning drew heavily on a 2023 dissent by Justice Clarence Thomas in Polansky v. Executive Health Resources, joined by Justices Kavanaugh and Barrett, which signaled the Supreme Court's interest in exactly that question. When a district judge and three justices agree a statute is broken, the statute is in genuine peril, as Mayer Brown's analysis of the ruling documents.
Why the relator is not an officer
The Eleventh Circuit's unanimous opinion, by Judges Elizabeth Branch and Robert Luck with Senior District Judge Federico Moreno, applied the Supreme Court's Lucia v. SEC framework and answered the question with a single finding: a qui tam relator does not occupy a continuing position established by law, and therefore is not an officer at all.
The court built that finding from three characteristics of the relator's role. The tenure is temporary, lasting only as long as a single case. The emolument is not a government salary but a one-time, success-based share of whatever the case recovers. And the duties are personal, in the sense that the role cannot be handed to someone else if the original relator drops out. None of those features describes an officer; together they describe the opposite of one. The district court had reasoned that the statute created a standing office of relator, but the Eleventh Circuit noted the term appears nowhere in the text, and the proper inquiry is whether the individual occupies a continuing position, not whether the statute contemplates a role.
The court stopped there. Because the continuing-position finding was dispositive, it did not reach the question of whether relators exercise significant authority, which is the other half of the Lucia test. That restraint matters, because it leaves the broader constitutional debate only half answered, and the unanswered half is already on its way up.
What the ruling preserves
The practical stakes are visible in the numbers. In 2025, the False Claims Act produced record recoveries of $6.8 billion and nearly 1,300 new qui tam filings. That machine runs on private initiative: citizens detect fraud that agencies do not have the resources to find, and the promise of a share of the recovery is what makes the detection worthwhile. The Mizelle ruling threatened to shut the machine down at the district level, and the Eleventh Circuit's reversal restores the status quo across one of the country's busiest circuits for healthcare fraud cases, where a large share of the act's recoveries originate.
The decision also restores appellate consensus. The Fifth, Sixth, Ninth, and Tenth Circuits had already upheld the qui tam provisions against Appointments Clause challenges, and the Mizelle ruling created the prospect of a circuit split that would have made Supreme Court review nearly inevitable on the government's own petitions. The Eleventh Circuit has now joined the consensus, leaving the courts of appeals unbroken in favor of the act, a result Holland & Knight summarized as the wait finally being over.
That consensus is the act's best defense, but it is not a guarantee. The remand keeps the case alive on the defendants' remaining arguments under the Take Care Clause and the Vesting Clause, which the panel sent back to the district court to consider first. Those theories attack the relator's role from a different angle: that private citizens cannot wield executive enforcement authority at all, whatever their tenure. And the Third Circuit is hearing the same question in United States v. Janssen Products, a case attached to a $1.6 billion judgment, which means the issue will be fully briefed in at least one more circuit.
The Supreme Court shadow
The real question is what happens when the issue reaches the justices. The Polansky dissent is the roadmap. Justices Thomas, Kavanaugh, and Barrett have already written, in a published dissent, that the constitutional status of qui tam relators deserves scrutiny, and the dissent's reasoning overlaps with the district court's: private citizens exercising the executive power of the United States without presidential appointment looks, to three justices, like a structural problem the Founders would have recognized.
Counting votes from a dissent is speculative, and the Eleventh Circuit's opinion is written in part to persuade the Court that the relator role is too small and too temporary to be an office. Crowell's client alert is titled around the obvious next stop. But the careful reader will notice what the panel did not say: it did not endorse the act's structure, it merely held that the Appointments Clause does not reach it, and it left two more constitutional theories unaddressed. The act survived September. It has not yet survived the decade.
What the uncertainty means for whistleblowers
The practical consequence of the litigation is a tax on certainty. A whistleblower considering a qui tam suit today is betting years of their life on a statute whose constitutionality is being litigated in two circuits and openly questioned by three Supreme Court justices. If the Court ultimately takes a case and rules against the act's structure, every pending qui tam case could be affected, and the government would need Congress to rebuild the enforcement mechanism. None of that has happened. The Eleventh Circuit just made it materially less likely to happen soon. But the honest advice to any relator remains what it has been since the Mizelle ruling: the act works today, the circuits now agree it is constitutional, and the long-term question is one a competent lawyer should explain before the complaint is filed.
For everyone else, the ruling is a quiet restoration of the status quo: the fraud bounty system continues, the billions in annual recoveries continue, and the experiment in private enforcement that began during the Civil War survives another round.
The 1,300 filings a year that hang on the answer
The constitutional question is not academic because the act's enforcement load is carried almost entirely by private relators. Of the roughly 1,300 qui tam complaints filed in 2025, each represents a citizen who spotted fraud, hired counsel, and filed under seal, and the government's own investigative resources are a fraction of what that private army produces. The act is built on an explicit bet: the people defrauding the government are best detected by the people watching the government's money, and the relator's bounty is the mechanism that keeps the watching profitable.
The government also retains control levers that the constitutional debate sometimes forgets. The United States can intervene and take over a case, can move to dismiss a relator's suit, and settles the majority of cases in which it participates. The relator is not an unaccountable private prosecutor; the relator is a private initiator whose case runs under the supervision of the Justice Department. The Eleventh Circuit's opinion leans on that structure implicitly: the role is too constrained and too supervised to be an office, and the constraints are exactly what the appointments machinery is meant to supply for real officers.
The healthcare fraud enforcement that the Eleventh Circuit oversees is where the stakes are most concrete. Medicare and Medicaid fraud cases dominate the act's recoveries, and the circuit's ruling restores certainty for the relators, hospitals, and defense bar litigating those cases across Florida, Georgia, and Alabama. A district judge within the circuit could, before this ruling, have dismissed any qui tam case on the Mizelle theory. The September decision removes that defense from the circuit's trial courts, at least until the Supreme Court speaks.
The remaining constitutional arguments, under the Take Care Clause and the Vesting Clause, are now the live questions. Both ask whether the executive power can be shared with private citizens at all, and both reach further than the Appointments Clause ever did. The Third Circuit's Janssen case will test them against a $1.6 billion judgment, and the Eleventh Circuit's remand will test them against a Medicare coding dispute. The act won the battle it has been fighting since 2024. The war over private enforcement is not over, and the Supreme Court has already shown it is watching.
For the lawyers and relators who live inside this system, the September ruling is the kind of stability that is easy to underrate. A pending constitutional challenge to the statute that funds your practice changes everything downstream: settlement values, case selection, and the willingness of counsel to front the cost of a sealed filing. The Eleventh Circuit has now removed that uncertainty from one of the act's most important circuits, and done it unanimously, with an opinion written to be quoted. The uncertainty moves upstairs, where it was always headed, and where three justices have already written the first draft of the other side.
Primary sources
- Mayer Brown client alert on the September 1 decision and the Lucia analysis.
- Holland & Knight insight on the reversal and its practical impact.
- Crowell client alert on the Supreme Court question and the remand.
- Ropes & Gray alert on the ruling's effect on whistleblower suits.