Eleventh Circuit Upholds False Claims Act Qui Tam Provisions, But Broader Constitutional Challenges Remain

The Eleventh Circuit’s recent decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC marks an important development in the ongoing constitutional debate surrounding the False Claims Act’s qui tam provisions. By rejecting an Appointments Clause challenge, the court aligned itself with every other circuit that has spoken on the issue. Yet challenges both within and outside the Eleventh Circuit will persist: Separate challenges under other Article II provisions remain active in Zafirov, several Supreme Court Justices have continued to signal interest in the constitutional limits of private FCA enforcement, and parties have converted these concerns into challenges in active litigation across the country.

The Eleventh Circuit’s Decision

In Zafirov, the Eleventh Circuit became the first federal appellate court in more than two decades to address an Appointments Clause challenge to the False Claims Act’s qui tam provisions. This appeal arose from an FCA action brought by Dr. Clarissa Zafirov, who alleged that her employer and related entities knowingly submitted false diagnosis codes to obtain inflated Medicare reimbursements. The defendants moved for judgment on the pleadings, arguing that the FCA’s qui tam provisions violate the Appointments Clause, Take Care Clause, and Vesting Clause. Although the United States initially declined to intervene, it later intervened for the limited purpose of defending the statute’s constitutionality. In a landmark district court ruling, the Middle District of Florida agreed with the defendants’ Appointments Clause challenge, held that FCA relators are officers of the United States who must be appointed in accordance with Article II, and dismissed the case.

The Eleventh Circuit disagreed. Applying the Supreme Court’s Appointments Clause framework, the court held that FCA relators are not officers because they do not occupy a “continuing position established by law.” The court emphasized that relators act only in a particular case, have no continuing governmental duties once the case ends, receive only a contingent share of any recovery rather than ongoing government compensation, and cannot be succeeded by a replacement relator who assumes the same role. In an important expansion for relator-side practitioners, the court assumed, without deciding, that the framework set forth in Lucia v. SEC, 585 U.S. 237 (2018), governed relators, not just government employees. And because the absence of a continuing position was dispositive, the court did not reach the parties’ additional arguments concerning the exercise of executive power or significant federal authority.

The panel rejected comparisons to officers such as the independent counsel in Morrison v. Olson, reasoning that relators lack the continuing tenure, duties, and compensation that characterize public offices. It likewise rejected the defendants’ argument that FCA relators occupy a continuing position established by law, explaining that each relator acts only in a particular case and does not hold an ongoing position that persists beyond that litigation. In so holding, the Eleventh Circuit joined the Fifth, Sixth, Ninth, and Tenth Circuits in rejecting Appointments Clause challenges to the FCA’s qui tam provisions.¹ The court vacated the dismissal and remanded to the district court for further proceedings, including consideration of the defendants’ remaining Take Care Clause and Vesting Clause arguments.

Ongoing Constitutional Debate

Although Zafirov rejected the Appointments Clause challenge, the broader constitutional debate over the FCA’s qui tam provisions continues to simmer. Much of the current litigation stems from United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), in which Justice Thomas argued in dissent that private relators may not constitutionally represent the United States in litigation, and Justice Kavanaugh, joined by Justice Barrett, identified substantial Article II concerns that could warrant future Supreme Court review. The Court continued its debate in Wisconsin Bell, Inc. v. United States ex rel. Heath, 604 U.S. 140 (2025). Although the Court again resolved only a statutory issue, Justice Kavanaugh, joined by Justice Thomas, repeated that the FCA’s qui tam provisions raise substantial constitutional questions under Article II that the Court should address in an appropriate case.

Those concerns now form the basis of constitutional challenges in active FCA litigation across the country. One of the most significant pending challenges is United States ex rel. Penelow v. Janssen Products, LP, No. 25-‍1818, in which the Third Circuit is considering whether the FCA’s qui tam mechanism is compatible with Article II. At oral argument, the court focused on whether historical qui tam practice supports the modern FCA and whether relators may exercise executive authority without appointment as federal officers. As with Zafirov, the Department of Justice intervened to defend the statute in this closely watched case.

While Zafirov forecloses Appointments Clause challenges in the Eleventh Circuit, it does not end the broader constitutional debate in that circuit, with the Eleventh Circuit remanding for further consideration the Vesting and Take Care Clause challenges in that case. And these challenges will continue outside the Eleventh Circuit in Penelow and other cases in which parties have leveled challenges based on the concerns expressed by multiple Supreme Court Justices.

Key Takeaways

• The Eleventh Circuit held that FCA relators are not “Officers of the United States” because they do not occupy a continuing position established by law, foreclosing Appointments Clause challenges in the circuit.

• Zafirov does not resolve other Article II challenges to the FCA in the Eleventh Circuit, including challenges under the Take Care and Vesting Clauses.

• Pending litigation in the Third Circuit and growing constitutional challenges to the FCA based on repeated signals from several Supreme Court Justices demonstrate that the constitutional debate over the FCA’s qui tam provisions will continue for the foreseeable future.

• Despite all the churn, the FCA remains in full effect, with relators able to bring qui tam suits as they historically have. And regardless of how this issue is ultimately resolved, the Attorney General will continue to retain authority to bring FCA actions directly under 31 U.S.C. § 3730(a). Accordingly, organizations that receive federal funds, including healthcare providers, government contractors, grant recipients, and other program participants, should continue to maintain robust compliance programs, reporting channels, employee training, audit functions, and investigative procedures.

Footnote

1. See Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787 (10th Cir. 2002).

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