Eleventh Circuit Rejects One Constitutional Challenge But Leaves Open Questions on FCA Qui Tam Provisions

On September 1, 2026, in a much-anticipated ruling, the Eleventh Circuit vacated a 2024 Middle District of Florida decision ruling that the qui tam provisions of the False Claims Act were unconstitutional under Article II’s Appointments Clause. The case—United States ex rel. Zafirov v. Florida Medical Associates, LLC—has now been remanded to the district court for further consideration of whether the provisions violate Article II’s Vesting and Take Care clauses.

In its unanimous panel decision, the Eleventh Circuit joined several circuits, who last took up the issue more than 20 years ago, in holding that qui tam relators are not “officers” subject to the Appointments Clause, and eliminating the most immediate prospect for a circuit split on the FCA’s constitutionality.

But this narrow ruling does not resolve the other constitutional arguments that do not depend on “officer” status—arguments that have already been raised in this matter and that other litigants have advanced elsewhere in the federal courts. Given that three Supreme Court justices have invited renewed scrutiny of the FCA’s constitutionality under Article II, we expect similar challenges to continue.

BACKGROUND

As previously reported, Zafirov is an otherwise routine FCA qui tam case with the relator, Dr. Clarissa Zafirov, alleging that her employer and several related entities knowingly submitted false diagnosis codes to Medicare to obtain greater reimbursements. The government declined to intervene, and the case proceeded to discovery.

The Zafirov defendants subsequently moved for judgment on the pleadings, calling into question the constitutionality of the FCA’s qui tam provisions under the Appointments, Vesting, and Take Care clauses of Article II, closely tracking questions raised by Supreme Court justices in the concurrence and dissent to United States ex rel. Polansky v. Executive Health Resources, 599 U.S. 419 (2023).

The district court only reached one of these grounds, finding that the qui tam provisions violate Article II’s Appointments Clause. 

ELEVENTH CIRCUIT’S CONSTITUTIONAL ANALYSIS

In the appeal, the Eleventh Circuit focused solely on the Appointments Clause and held, contrary to the district court’s reasoning, qui tam relators “are not officers of the United States because they do not occupy a continuing position.”  

The Eleventh Circuit looked to longstanding Supreme Court precedent to guide its analysis—including United States v. Germaine, 99 U.S. 508 (1879)—assessing that whether a person holds a continuing position established by law depends on four considerations: (1) whether that person holds a “permanent” tenure; (2) whether their employment has “duration as to time”; (3) whether they receive a “continuing emolument”; and (4) whether the duties they exercise are personal to them.

The circuit found qui tam relators lacking as to each, concluding:

• Tenure: A relator’s tenure is occasional and temporary because it is confined to particular cases the relator chooses to bring; when those cases end through settlement or dismissal, the relator is left without any residual responsibilities.
• Timing: While FCA cases may take years, that duration is not constitutionally relevant because the relator’s duties never extend beyond the particular case in which the relator is authorized to act.
• Continuing Emolument: A relator receives no continuing emolument because any compensation is a one-time, success-contingent share of a judgment or settlement and not recurring compensation paid from a regular government appropriation.
• Duties: The duties are “personal” to the relator because a second relator cannot displace the first and take over the same case.

The circuit distinguished the Supreme Court precedent of Morrison v. Olson, which applied the Appointments Clause to temporary and case-specific independent counsel, because that position permitted a successor to assume the same investigation or prosecution and was paid from a permanent public appropriation.

The panel likewise was unconvinced by arguments that the FCA creates an “office of relator” that exists continuously despite being occupied by different private persons, reasoning that the statute does not use that terminology and the relevant inquiry is whether the particular “individual” relator occupies a continuing position.

Because the panel decided the Appointments Clause question by finding the position is not “continuing,” it did not reach the other prong necessary for officer status: whether relators exercise significant authority.

THE UNRESOLVED CONSTITUTIONAL QUESTIONS

The Eleventh Circuit’s narrow Appointments Clause holding will not end the broader Article II controversy, even within that circuit.

In remanding the case, the Eleventh Circuit directed the district court to take up the other Article II challenges already raised but left undecided: whether the qui tam provisions violate the Vesting and Take Care clauses of Article II because relators exercise executive power but are not subject to constitutionally sufficient executive control to ensure that the laws are faithfully executed. This sets the case up for a potential journey back to the Eleventh Circuit on those issues.  

The Article II questions continue to percolate outside the Eleventh Circuit, spurred by the “serious questions” noted by three Supreme Court justices. The most immediate appellate vehicle for these issues appeared to be United States ex rel. Penelow v. Janssen Products, L.P., pending in the Third Circuit, where no controlling precedential opinion has been issued on the Article II arguments. However, after hearing argument in March 2026, the Third Circuit referred the case to a special mediator, with no merits decision yet issued.

There has been significant activity in the Fifth Circuit despite a decades-old en banc decision finding the qui tam provisions pass Article II muster, Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001) (en banc). Two Fifth Circuit judges in concurring opinions have urged the court to revisit the Article II challenge, and the issue is presented in a pending appeal from the Northern District of Texas, United States ex rel. Taylor v. Healthcare Associates of Texas, LLC.

Further, the Sixth Circuit recently denied petitions for interlocutory review on the Article II questions in In re TriHealth, Inc. et al., reasoning that such review was not supported in light of its decades-old decision in United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032 (6th Cir. 1994), which rejected such a challenge.

KEY TAKEAWAYS

• While the Zafirov decision strengthens the argument that the FCA’s qui tam provisions pass muster under Article II’s Appointments Clause, separate Article II questions under the Vesting and Take Care clauses remain open.
• Multiple live appeals in other courts could eventually open up a circuit split; regardless of that eventuality, we anticipate these Article II issues will reach the Supreme Court in the near future.
• The US Department of Justice continues to defend the constitutionality of the qui tam provisions, and the FCA remains the department’s primary civil fraud enforcement tool. Whether brought as qui tam suits or affirmatively by the United States, such cases continue to pose substantial litigation risk to a wide variety of corporate entities.