Fifth Circuit, United States ex rel. Jackson v. Ventavia: government dismissal of a qui tam suit, constitutional objections, and an Article II concurrence

What happened

On November 13, 2026, the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a False Claims Act (FCA) qui tam suit brought by Brook Jackson, a former regional clinical-trial director at Ventavia Research Group, over Pfizer's Phase III COVID-19 vaccine trials. The panel was Chief Judge Elrod and Judges Richman and Willett. Judge Willett wrote the opinion for the court and also filed a separate concurrence; Chief Judge Elrod filed a short concurrence. There was no dissent.

The government declined to intervene during the seal period, and Jackson litigated as relator. After she filed a second amended complaint, the government moved to intervene and dismiss under 31 U.S.C. § 3730(c)(2)(A). The district court granted that motion and separately dismissed Jackson's FCA retaliation claim against Ventavia.

What the opinion says

Intervention. The court held that § 3730(c)(3)'s "good cause" standard, not Federal Rule of Civil Procedure 24(b), governs the government's later intervention. Relying on United States ex rel. Polansky v. Executive Health Resources (2023), it described good cause as "a uniquely flexible and capacious concept, meaning simply a legally sufficient reason," and found the government's stated reasons (merit, burden of discovery, and conflict with public-health policy) sufficient.

Dismissal. Applying Rule 41 as Polansky directs, the court said a district court has "no discretion to deny dismissal [of a qui tam action by the Government] absent a claim that the Constitution forbids it" or some extraordinary circumstance. It held that the statute's "opportunity for a hearing" does not require an evidentiary hearing, and that the three-hour in-person hearing exceeded what the statute requires.

Constitutional objections. Jackson argued that dismissal "infringed upon her First Amendment right to petition, contravened the separation of powers, and violated equal-protection principles and substantive due process." The court held: "Because each constitutional objection is unavailing, the district court correctly concluded that dismissal did not violate Jackson's constitutional rights." It affirmed dismissal with prejudice as to Jackson.

Retaliation. The court affirmed dismissal of the § 3730(h) claim because the complaint did not plausibly allege protected activity tied to fraud on the government or Ventavia's knowledge of such activity. It held that the government's dismissal power reaches "the qui tam action" and not a separate retaliation claim.

The concurrences

Judge Willett, concurring, raised a question the parties did not present: whether the FCA's qui tam device is consistent with Article II. He wrote: "Can Congress really deputize private citizens to prosecute the Nation's claims in the Nation's name—all outside the Government's control?" He set out arguments under the Appointments Clause, the Vesting Clause and the Take Care Clause, and addressed historical practice, the assignment theory of relator standing and the Property Clause of Article IV, finding that none answers the Article II objection in his view. He noted that the Fifth Circuit's en banc decision in Riley v. St. Luke's Episcopal Hospital (2001) upheld the device and binds the panel: "Riley binds us today. Whether it binds us tomorrow is for the en banc court." He added that he did "not claim to have resolved every issue canvassed here."

Chief Judge Elrod wrote, "I concur with the majority opinion in full," adding that Judge Willett's concerns "are no doubt en banc worthy" and that "[i]n a proper case, it may be time for our en banc court to revisit Riley."

The constitutionality of the qui tam provisions was not decided; the concurrence states the issue "was not raised below or on appeal."

Where it sits in the record

The opinion applies Polansky (2023), which, as the Fifth Circuit describes it, permits the government to seek dismissal even after declining to intervene during the seal period and makes Rule 41 the governing standard for such motions. The concurrence cites Justice Thomas's dissent in Polansky and Justice Kavanaugh's concurrence there (joined by Justice Barrett), and the Fifth Circuit's own earlier concurrences by Judges Ho and Duncan calling for reconsideration of Riley. Earlier record entries on Article II removal and supervision include the D.C. Circuit's November 10 decision in Abramowitz v. Lake.