Eleventh Circuit Upholds Constitutionality of False Claims Act Qui Tam Provisions, Rejecting Appointments Clause Challenge

In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit vacated a district court decision that had declared the qui tam provisions of the False Claims Act (“FCA”) unconstitutional under the Appointments Clause. The panel held that private relators who bring FCA suits on behalf of the government are not “Officers of the United States” because they do not occupy a “continuing” position, and therefore need not be presidentially appointed. For now, qui tam litigation in the Eleventh Circuit proceeds as before. The Fifth Circuit (en banc) and the Sixth, Ninth, and Tenth Circuits had already rejected the same challenge, so the panel breaks no new ground — but it also declined to decide two other constitutional questions that are still very much alive on remand.

Background

The FCA imposes civil liability, including treble damages, on parties who knowingly submit false or fraudulent claims for payment to the federal government. 31 U.S.C. § 3729(a). The FCA's qui tam provisions let private individuals (“relators”) sue on the government’s behalf. § 3730(b)(1). The complaint is filed under seal while DOJ investigates. The nominal seal is 60 days, though in practice it is routinely extended for years. The government then decides whether to intervene or let the relator go it alone. A successful relator keeps 15–25% of an intervened recovery, and up to 30% if it litigates alone.

In this case, Dr. Clarissa Zafirov filed a 2019 qui tam action alleging that her former employer knowingly submitted false diagnosis codes to inflate Medicare reimbursements, a practice commonly called “upcoding.” Although the government declined to intervene, it did not abandon the case, but rather joined Zafirov in opposing dismissal and, on appeal, actively defended the constitutionality of the qui tam mechanism. After years of litigation, the defendants moved for judgment on the pleadings, arguing that the qui tam mechanism itself was unconstitutional because relators exercise significant executive authority without being appointed by the President and confirmed by the Senate in violation of the Appointments Clause (as well as the Take Care Clause and Vesting Clause).

The Middle District of Florida agreed, holding that relators are “officers of the United States” under the two-part test from Lucia v. SEC, 585 U.S. 237 (2018), i.e., that they exercise “significant authority” and occupy a “continuing position established by law.” The district court found that an “office of relator” exists continuously even though individual relators come and go, and dismissed Zafirov’s case entirely because, absent proper appointment, she lacked authority to prosecute the action on the government’s behalf.

This constitutional challenge to the FCA qui tam provisions is part of an increasing trend, brought on in large part by Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023). There, Justice Thomas wrote that the qui tam provisions “have long inhabited something of a constitutional twilight zone,” as they empower private relators to exercise executive power that rightfully belongs to the President. Justices Kavanaugh and Barrett, concurring, agreed the Court should take up the Article II question in an appropriate case, signaling that at least three Justices view the issue as cert‑worthy.

The Eleventh Circuit’s Decision

On September 1, 2026, in a published opinion authored by Judge Branch (joined by Judge Luck and Senior District Judge Moreno, sitting by designation), the Eleventh Circuit vacated and remanded. United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24‑13581, — F.4th —, 2026 WL 2581886 (11th Cir. Sept. 1, 2026). It never reached whether relators exercise “significant authority,” resolving the case entirely on the “continuing position” prong of Lucia. Leaning on two old Supreme Court cases — United States v. Germaine, 99 U.S. 508 (1879), and Auffmordt v. Hedden, 137 U.S. 310 (1890) — the panel asked whether a relator holds the kind of settled, ongoing position that marks a true officer. It does not.

Tenure and Duration: The court treated these together. A relator’s role is occasional and temporary – like the part-time pension surgeon in Germaine or the merchant appraiser in Auffmordt, who worked only when called. It lasts one case. A relator might bring several suits in a year or none at all, and need not keep an office. That a given case can drag on for years does not make the role permanent; the court looked at the nature of the position, not the calendar.

Emolument: A relator’s compensation is a one-time, contingent award tied to the success of a specific case, not a regular salary or appropriation, and a relator faces no penalty for declining to pursue a claim beyond forfeiting that contingent fee, closely paralleling Germaine.

Duties: A relator’s role is personal. If a relator drops out, no other relator or government actor can simply step into an ongoing case (apart from the Attorney General exercising its intervention rights, or an estate representative continuing a deceased or bankrupt relator’s claim). This personal, non-transferable nature distinguishes relators from officers like the independent counsel in Morrison v. Olson, 487 U.S. 654 (1988), whose successor could seamlessly pick up an ongoing investigation.

The court also rejected the defendants’ argument that the FCA creates a standing “office of relator” that exists independent of any individual relator. The panel emphasized that no such office appears anywhere in the FCA’s text, and that Supreme Court precedent requires courts to examine whether a specific individual occupies a continuing position, not whether some abstract office could be filled by different people over time. This “personal role” reasoning is the analytical heart of the opinion, and, in our view, the part most likely to draw fire if the Supreme Court takes up the question, since it turns on how one frames the “position” rather than the power a relator wields.

Having concluded that relators do not hold a continuing position, the court held they are not “Officers of the United States” and therefore need not be presidentially appointed and confirmed by the Senate under the Appointments Clause. The court vacated the district court’s dismissal and remanded the case for further proceedings, including consideration of the defendants’ still-unresolved Take Care Clause and Vesting Clause arguments.

Takeaways

The ruling lands in a period of aggressive FCA enforcement: FY2025 recoveries hit a record $6.8 billion, whistleblowers filed a record 1,297 qui tam suits, and roughly $5.3 billion of those recoveries came from qui tam matters. Zafirov keeps that enforcement engine running in the Eleventh Circuit. The decision preserves the FCA’s qui tam enforcement mechanism in the Eleventh Circuit, which covers Florida, Georgia, and Alabama — a significant jurisdiction for healthcare and government-contracts fraud litigation.

The Eleventh Circuit now joins the Fifth (en banc), Sixth, Ninth, and Tenth Circuits in rejecting the Appointments Clause challenge to qui tam relators, reinforcing a strong multi-circuit consensus and making Supreme Court review somewhat less likely in the near term, though the issue remains a live one nationally.

Because the Eleventh Circuit resolved the case solely on Appointments Clause grounds, the Take Care Clause and Vesting Clause arguments remain unresolved on remand; defendants in FCA cases within the Eleventh Circuit may continue to press those theories, and Zafirov itself is not yet finished.

Healthcare providers, government contractors, and other entities facing (or anticipating) qui tam suits should not expect wholesale constitutional challenges to relator standing to succeed in the Eleventh Circuit, and should continue to focus their defense strategy on the merits, materiality, scienter, and public-disclosure/first-to-file defenses under the FCA.