Eleventh Circuit Considers Constitutionality of the False Claims Act’s Qui Tam Provisions

On December 12, 2025, an Eleventh Circuit panel heard oral argument in a closely watched Justice Department and relator appeal of a 2024 Middle District of Florida opinion finding the qui tam provisions of the False Claims Act (FCA) unconstitutional under Article II’s Appointments Clause. An Eleventh Circuit affirmance almost certainly would fast-track consideration by the US Supreme Court, particularly in light of three Supreme Court Justices recently inviting FCA defendants to raise this constitutional question as well as activity in the Third, Fifth, and Sixth Circuits over the last year.

As previously reported, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, US District Judge Kathryn Kimball Mizelle found that relators are “Officers,” whose self-appointment through the unrestricted filing of FCA qui tam actions in the name of the United States violates Article II. [1] A former law clerk to Justice Thomas, Judge Mizelle’s reasoning closely tracks the Thomas dissent in United States ex rel. Polansky v. Executive Health Resources, which reignited this constitutional question in 2023, [2] two decades after several circuit courts of appeal had reasoned that the qui tam provisions do not violate Article II.

In their appellate briefing, the Justice Department and the relator, Clarissa Zafirov, challenged the notion that a relator is an unappointed “Officer” for Appointments Clause purposes, as Judge Mizelle concluded. They also challenged that the qui tam provisions violate Article II’s Vesting and Take Care Clauses because they do not allow for adequate Executive supervision of relators necessary to ensure that the laws are faithfully executed, even though Judge Mizelle did not reach that question.

Reflecting the significance of these questions, more than a dozen amicus briefs were filed by individuals and organizations, including by Senator Chuck Grassley advocating constitutionality and the US Chamber of Commerce supporting the defendant and the district court’s decision.

OTHER DISTRICT COURTS AND CIRCUITS WEIGH IN

Following her decision in Zafirov, Judge Mizelle also dismissed another qui tam action as unconstitutional, [3] but those two Middle District of Florida decisions have not been adopted by any other court to date. To the contrary, every other district court (including another court in the Middle District of Florida) to consider the question on the merits post-Polansky has rejected the Article II challenge.

However, two other circuit courts are now poised to address the constitutional question. The issue has been briefed before the Third Circuit in United States ex rel. Penelow v. Janssen Products, LP, which is notable because the Third Circuit has not previously considered the issue. [4] And an interlocutory appeal request currently is pending before the Sixth Circuit after a district court judge certified the Article II question in two cases: United States ex rel. Shahbabian v. TriHealth, Inc. and United States ex rel. Murphy v. TriHealth, Inc., [5] despite the Justice Department’s argument that the issue already is settled in that circuit. [6]

Meanwhile, in the Fifth Circuit—where a 2001 en banc decision previously rejected an Article II challenge to the qui tam provisions [7] —two judges in separate cases have raised the issue, signaling that they would likely find the qui tam provisions unconstitutional and encouraging a reevaluation of the question. [8] Similarly, two Texas Supreme Court justices, in denying a petition for writ of mandamus, recently signaled that the constitutionality of the qui tam provisions of the state false claims law, which are analogous to those in the federal FCA, should be considered against the Texas state constitution in a future case. [9]

TAKEAWAYS FROM THE ZAFIROV ORAL ARGUMENT

While there is no way to predict the outcome based on oral argument alone, questioning by Judges Branch, Luck, and Moreno generally reflected an openness to taking a fresh look at this constitutional challenge, as opposed to deeming it a settled question. Indeed, the first question from the bench, by Judge Branch, rebuffed the Justice Department’s emphasis on the fact that qui tam provisions have historical precedent and that other circuit courts have rejected Article II challenges.

Judge Branch quickly observed that none of those decisions were recent and that several Supreme Court Justices—aware of those decisions—think the Article II questions should be revisited. The panel members came back to Justice Thomas’s dissent in Polansky again and again in seeking to understand how attorneys for the United States, the relator Zafirov, the defendant Florida Medical Associates, and the US Chamber of Commerce could square their positions with his analysis or with what he left out of his analysis.

Overall, the panel questions focused equally on the Appointments Clause and the Vesting and Take Care Clauses issues. Judges Branch and Luck appeared to have concerns both with whether relators occupy “continuing” positions, the second prong necessary for “Officer” status under the Appointments Clause, and with the lack of prior case law addressing the Appointments Clause in the context of private parties, rather than employees or independent contractors of the government—concerns that could support a finding of no Appointments Clause violation.

However, they appeared equally concerned with indicators that a relator exercises core Executive power, which would implicate potential violations of the Vesting and Take Care Clauses without the need to address the “continuing” nature under the Appointments Clause. The focus by the Justice Department and relator’s counsel on the government’s ability to intervene in a qui tam action did not appear to assuage these Executive power concerns, with Judge Luck focusing instead on a relator’s initial filing of suit without preapproval, thereby triggering mandatory government investigation.

The lengthy history of qui tam laws at the time of founding also was given a fair amount of argument time. The panel spent some time probing whether that history was meaningful, noting that early qui tam statutes allowed for private parties to bring criminal prosecutions, which cannot be defended as constitutional.

Neither the panel nor the parties focused on the implications of striking the qui tam provisions as unconstitutional, including whether any constitutional defect could be remedied—for instance by requiring presuit approval from the Justice Department or some other legislative fix. Judge Moreno did observe, however, that upholding the Constitution sometimes creates “chaos.”

FUTURE IMPLICATIONS

If not stayed pending Supreme Court review or an opportunity for a legislative fix, an Eleventh Circuit finding that the qui tam provisions are unconstitutional would wreak havoc on pending and future qui tam cases, which comprise the vast majority of the FCA docket, including immediate impact on cases within the Eleventh Circuit and a renewed focus on this question in other jurisdictions.

However, such an outcome would not affect the Justice Department’s affirmative filing of FCA actions. And there are several different paths forward that the Justice Department could take as to qui tam cases. If the Eleventh Circuit’s decision allows for it, the Justice Department could attempt to salvage ongoing qui tam cases through intervention. Yet another option for the Justice Department is to create a more traditional whistleblower program that provides monetary incentives for the provision of information that then allows the United States to bring suit, similar to other such programs already in place. [10]

Whatever the outcome in the Eleventh Circuit, the question seems destined for Supreme Court review in the near future. As Judge Branch noted in oral argument, three Justices already having highlighted “substantial questions” with the qui tam provisions’ compliance with Article II. [11]

In the long term—either to counter an adverse decision or in anticipation of one—Congress likely will consider adjustments to the statutory provisions to continue to incentivize and empower whistleblowers within the bounds of any constitutional constraints, for example by implementing mechanisms for preapproval from the Justice Department before a relator is permitted to actually file suit.