On September 1, 2026, the Eleventh Circuit issued its highly anticipated decision in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, holding that the False Claims Act’s qui tam provision does not violate the Appointments Clause of the Constitution and vacating a Florida district court’s dismissal order that had been based on such grounds. This decision, however, is unlikely to be the last to address the constitutionality of the False Claims Act provision permitting whistleblowers to litigate fraud cases on behalf of the United States after the Department of Justice has declined to intervene in those cases.
The Zafirov case arose from a 2019 lawsuit filed by Dr. Clarissa Zafirov under the False Claims Act’s qui tam provision—which allows relators who have knowledge about fraud against the government to pursue a case against the perpetrator of the fraud on the United States’ behalf—against her employer, a medical provider, and related entities, alleging that the defendants committed Medicare fraud. After conducting an investigation, the Department of Justice declined to intervene in the case and Dr. Zafirov proceeded to litigate the case on behalf of the United States, in accordance with the False Claims Act’s qui tam provision. In February 2024, defendants moved for judgment on the pleadings or dismissal of the case. Defendants echoed concern expressed in a 2023 dissent from Justice Thomas in Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), which questioned the constitutionality of the qui tam provision. Defendants argued that the False Claims Act’s qui tam provision violated the Constitution’s Appointments Clause because relators exercise significant federal authority in a continuing position without appointment by the President. They also argued that the qui tam provision violates the Take Care Clause and Vesting Clause of the Constitution, though these arguments were not addressed by either the district court or the appellate court.
In fall 2024, in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293, 1309 (M.D. Fla. 2024), the Middle District of Florida became the first court to hold that the qui tam provision of the False Claims Act is unconstitutional because it “directly defies the Appointments Clause [of the Constitution] by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public.” Central to this finding was the district court’s conclusion that relators are officers of the United States. In making this conclusion, the district court held that the authority to bring civil enforcement actions constitutes “significant authority,” and that the “office of relator” is a continuing position.
In reversing the district court, the Eleventh Circuit found that relators “do not hold a continuing position, which is sufficient to determine that relators are not officers who must be presidentially appointed.” While the appellate court acknowledged that some relators litigate actions for multiple years, it held that a relator does not have a permanent tenure, and therefore “does not have a position with duration that makes him an officer.” Nor, the Eleventh Circuit noted, does a relator’s entitlement to a portion of the judgment in a successful False Claims Act Case constitute a “continuing emolument.” Finally, the court found that relators occupy only a personal role, because relators assume a duty to litigate each case that they file and those duties cannot be assumed by anybody else (except for the Government if it chooses to intervene).
The Eleventh Circuit’s decision reinforces the existing consensus among the Fifth, Sixth, Ninth, and Tenth Circuits that the False Claims Act’s qui tam provision does not violate the Appointments Clause.
However, the decision does not provide a definitive answer to the constitutionality question and comes amid increasing instances of skepticism by courts regarding constitutionality following Justice Thomas’s dissent in Polansky. In that opinion, Justice Thomas asserted that there are “substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” In a concurring opinion, Justices Kavanaugh and Barrett agreed with Justice Thomas that the Court should consider those “substantial arguments” in an “appropriate case.”
Despite Fifth Circuit precedent regarding the constitutionality of the False Claims Act’s qui tam provision, Judge Stuart Kyle Duncan authored a concurring opinion in U.S. ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395 (5th Cir. 2025) citing Justice Thomas’s dissent and concluding that the qui tam provision violates the Appointments Clause. The Third Circuit also heard oral argument on the constitutionality question earlier this year on appeal of a New Jersey district court’s decision in U.S. ex rel. Penelow v. Janssen Products, LP, 2025 WL 937504 (D.N.J. Mar. 28, 2025), with a ruling in that appeal still pending.
Following the Eleventh Circuit’s ruling, the defendants in Zafirov may ask for en banc review and/or petition for certiorari from the Supreme Court. While there appear to be at least three Supreme Court Justices who are willing to consider the constitutionality of the qui tam provision, whether there is a fourth vote sufficient to grant certiorari or five votes to find the qui tam provision unconstitutional remains to be seen. Moreover, it is not clear that the Justices will be keen to consider the issue where there is no current circuit split among the appellate courts. On remand, the district court in Zafirov will likely address the defendants’ remaining constitutional arguments regarding the Take Care and Vesting Clauses. The Eleventh Circuit’s ruling is thus not the final word in this case, let alone regarding the broader question of the constitutionality of relators litigating declined False Claims Act cases.
Parties facing potential qui tam actions should continue to monitor this area of law and be mindful of the prevailing standard in the circuit in which they are litigating unless and until the Supreme Court decides to address the issue. For now, qui tam litigation will proceed as the constitutional challenges continue to wend their way through the courts.