Eleventh Circuit Upholds Constitutionality of FCA's Qui Tam Provisions in Zafirov Case

On September 1, 2026, the Eleventh Circuit upheld the constitutionality of the False Claims Act's qui tam provisions, concluding that "relators" are not "officers of the United States" who bring such suits in potential violation of Article II's Appointments Clause.

Under the FCA, a "relator" claims knowledge of fraud against the government and is empowered to pursue litigation in the name of the government against the perpetrator in exchange for a share of the proceeds.

The case—United States ex rel. Zafirov v. Florida Medical Associates, LLC—concerned a seven-year-old FCA suit brought by a physician against her employer related to the alleged knowing submission of false diagnosis codes to receive greater Medicaid reimbursements.

In September 2024, a Florida federal district court dismissed the suit, concluding that as an FCA relator, Dr. Zafirov unconstitutionally functioned as an unappointed officer of the United States, exercising "significant authority" and "core executive power" in prosecuting a lawsuit on behalf of the United States.

Under the FCA's qui tam provisions, a whistleblower can bring a complaint as a "relator" in the government's name alleging the knowing submission of false or fraudulent claims for payment.  31 U.S.C. §§ 3729, 3730. After an investigation period during which the complaint remains sealed, the government must decide whether to intervene and prosecute the case itself. Id. § 3730(b)(2). If the government declines to do so, the relator may choose to continue with their suit. Id. § 3730(c)(3). A successful relator can recover between 15% and 30% of the proceeds of the action or settlement, depending on whether the government intervened. Id. § 3730(d)(1)-(2). 

The constitutionality of the FCA's qui tam provisions is critical as the statute is "the government's primary litigative tool for the recovery of losses sustained as a result of fraud against the government." Avco Corp. v. U.S. Dep't of Justice, 884 F.2d 621, 622 (D.C. Cir. 1999). The government recovered $6.8 billion in settlements and judgments under the FCA in fiscal year 2025. There were a record 1,297 qui tam lawsuits filed in FY25, up from 980 the previous year.

The Florida district court's ruling in Zafirov called into question the continued constitutionality of the FCA's qui tam provisions, following up on Supreme Court opinions in United States ex rel. Polansky v. Executive Health Resources, Inc. issued in June 2023 where one dissenting justice would have remanded to the lower court to consider "the serious constitutional questions" implicated by the FCA's qui tam provisions and two other justices in a concurrence suggested that the Court should "consider the competing arguments on the Article II issue in an appropriate case."

Those questions may be coming to the Supreme Court in Zafirov, but for now, the Eleventh Circuit, in a unanimous three-judge opinion, reversed the district court and rejected arguments that the FCA empowering qui tam relators violates the Appointments Clause.

The Appointments Clause requires that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … all other Officers of the United States[.]" Under Supreme Court precedent, an officer of the United States must occupy a continuing position established by law and must exercise significant authority pursuant to the laws of the United States.

Dr. Zafirov and the United States, which intervened for the limited purpose of defending the constitutionality of the qui tam provisions, argued that relators (1) are private parties pursuing a private interest and do not exercise executive power, (2) do not exercise significant authority, and (3) do not occupy a continuing position such that they require presidential appointment.

The Eleventh Circuit concluded that relators do not hold a continuing position, and reversed on that ground alone. The Court analyzed the tenure, duration, compensation, and duties of relators.In notable part, the Court observed that:

[A] relator's tenure is occasional and temporary because it lasts the length of one case, a relator may bring multiple cases in a year or none, and relators are not required to keep a place of business. And if, for example, the government or the court dismisses a relator's case or if the case settles, the relator has no remaining duties. Accordingly, a relator's intermittent, nonpermanent tenure tends to show that he does not hold a continuing position.

The Court added that a relator receives payment only as a "one-time award contingent on the success of his case," does not receive any "regular appropriation," "works on an intermittent basis (whenever he has a claim to pursue and the litigation is active)"; and "faces no penalty for a refusal to perform except for the loss of his opportunity to receive a contingent fee for succeeding in a given case."

The Eleventh Circuit concluded that "while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position" and are not officers of the United States subject to the Appointments Clause.

The Court did not rule on additional constitutional arguments that defendants raised at the district court, challenging the FCA's qui tam provisions as violating the Take Care Clause and Vesting Clause. The Eleventh Circuit remanded for the district court to consider those arguments.

Implications

Although the Eleventh Circuit remanded the case, defendants may opt to seek Supreme Court review of the FCA qui tam provisions' constitutionality under the Appointments Clause. Justices Barrett, Kavanaugh, and Thomas signaled their interest in considering whether the qui tam device is inconsistent with Article II in their opinions in Polansky.

In Justice Thomas's view, the FCA qui tam provisions "have long inhabited something of a constitutional twilight" and "there is good reason to suspect that Article II does not permit private relators to represent the United States' interests in FCA suits." Polansky, 599 U.S. 419, 449–51 (Thomas, J. dissenting).

Defendants may also wait to seek Supreme Court review until after the district court and Eleventh Circuit consider arguments regarding the constitutionality of the FCA's qui tam provisions under the Take Care Clause and Vesting Clause on remand. 

The Eleventh Circuit's ruling was consistent with the Ninth Circuit's longstanding precedent in United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993), that the FCA's qui tam provisions do not violate the Appointments Clause. Indeed, the Eleventh Circuit noted that it was "join[ing] our sister circuits that have addressed this issue" regarding the Appointments Clause and cited the Ninth Circuit's ruling in Kelly.

In at least three instances, district courts in the Ninth Circuit since the Zafirov district court's ruling rejected arguments that the FCA's qui tam provisions are unconstitutional, citing the precedent in Kelly. See Feduccia v. I.C.E. Servs., Inc., 2025 WL 3251221, at *8 (D. Alaska Nov. 21, 2025); Kenley Emergency Medicine v. Schumacher Grp. of La. Inc., 2025 WL 1359065, at *5 (N.D. Cal. May 9, 2025); United States ex rel. Moselle v. Kehoe, 2025 WL 4087074, at *4 (D. Haw. May 30, 2025).

The district judge in Kenley Emergency Medicine emphasized that Zafirov was not persuasive and the court was "bound by [] Circuit precedent, not a district-court opinion, or even a dissent or concurrence by a Supreme Court justice." 2025 WL 1359065, at *5.

We will continue to monitor developments in Zafirov and other FCA cases, particularly a potential petition for certiorari at the Supreme Court. 

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Ross Siler is a partner in DWT's Seattle office and Alex Porter is a partner in the firm's Los Angeles office. For any questions, please reach out to Ross, Alex, or another member of our healthcare or white collar teams. To stay informed, sign up for our alerts.