Eleventh Circuit Holds FCA Qui Tam Litigation Does Not Violate The Appointments Clause In Article II Of The U.S. Constitution – But Questions Remain

On September 1, 2026, the Eleventh Circuit handed down its decision in U.S. ex rel. Zafirov v. Florida Medical Associates, LLC et al. – one of the most anticipated False Claims Act (FCA) decisions in years – reversing the Florida district court and holding that the FCA’s qui tam provisions do not violate the Appointments Clause of the U.S. Constitution.

The long-awaited ruling rejects the reasoning of the district court that had broken with several other district courts and courts of appeals in finding qui tam litigation under the FCA unconstitutional. The FCA authorizes private relators to file suit on behalf of the U.S. government to recover treble damages and penalties for false and fraudulent claims from those who commit fraud on the public fisc. The Eleventh Circuit did not address additional constitutional challenges that the defendant in the case had raised on appeal, instead remanding those issues to the district court for resolution in the first instance. As these issues continue to play out, qui tam defendants would do well to assert these challenges and preserve these issues for appeal.

Background

As we wrote in our 2025 publication of the False Claims Act Guide, plaintiff-relator Clarissa Zafirov filed a qui tam lawsuit under the FCA in 2019, alleging that the defendant medical providers committed Medicare fraud. The defendants moved to dismiss, arguing that the FCA’s qui tam provisions violate the Appointments, Take Care, and Vesting Clauses of Article II of the U.S. Constitution. Relators, they argued, function as U.S. officials and wield power assigned by the Constitution to the executive branch, but they are not duly appointed or sufficiently supervised or controlled by the president. Although the United States declined to intervene in the case, it joined the relator in opposing dismissal.

The district court dismissed the case, holding that the FCA’s qui tam provisions violate the Appointments Clause because relators serve as officers of the United States and exercise significant federal authority in a continuing position without the required appointment by the president. This ruling departed from precedent, but it wasn’t completely without foreshadowing: Justice Clarence Thomas had questioned the constitutionality of the qui tam provisions under Article II in his dissent in U.S. ex rel. Polansky v. Executive Health Resources, Inc. the year before. Justices Brett Kavanaugh and Amy Coney Barrett concurred in the Court’s judgment but noted their agreement with Justice Thomas’s Article II concerns. The district court judge in Zafirov – who clerked for Justice Thomas – may have taken her cues from this dissent.

Because the district court found that the qui tam provisions violated the Appointments Clause, it did not reach defendants’ Take Care or Vesting Clause arguments. Zafirov and the United States appealed.

The Eleventh Circuit’s ruling

Eight months after hearing oral argument, the Eleventh Circuit reversed the lower court’s ruling, holding that relators are not officers subject to the Appointments Clause because they do not occupy a continuing position. The court relied on Supreme Court precedent to hold that the role of a relator is a personal one, the tenure of which only lasts for a single case and which ceases to exist once the case resolves. The only “emolument” a relator receives is a one-time payment contingent on the case’s outcome. Accordingly, the court held that a relator is not an officer of the United States and is therefore not subject to the requirements of the Appointments Clause.

The court’s short, 18-page opinion stands in contrast to the hundreds of pages of briefing submitted by the parties and amici curiae on appeal. But this ruling may not be the Eleventh Circuit’s last word on Zafirov. Although the court resolved the Appointments Clause question, it remanded defendants’ Take Care and Vesting Clause arguments to the district court for consideration. Depending on how the district court decides these issues, the Eleventh Circuit may again be called on to consider constitutional challenges in this case.

What Zafirov means for FCA defendants

In upholding the constitutionality of relator-brought qui tams, the Eleventh Circuit joined every other circuit court to consider the question – the Fifth, Sixth, Ninth, and Tenth Circuits have all reached similar conclusions. But such uniformity does not necessarily preclude future constitutional consideration, and defendants facing qui tam litigation should continue to evaluate constitutional defenses and preserve them for appeal.

At least two viable avenues remain to seek to have the FCA’s qui tam provisions stricken. First, the Eleventh Circuit declined to consider the parties’ Take Care Clause or Vesting Clause arguments, instead remanding those issues to the lower court to determine in the first instance. The district court’s decision on those issues and any decision on appeal could open the door to further constitutional challenges.

Second, the absence of a circuit split does not preclude possible Supreme Court review. At least three sitting justices appear eager to consider the question – most notably Justice Thomas, whose much-discussed dissent in Polansky reflects his deep skepticism about the constitutionality of the qui tam provision under Article II.

With the questions left open by the Eleventh Circuit’s ruling and the Supreme Court’s apparent appetite to consider Article II challenges, the debate over the constitutionality of qui tams is far from settled. Hogan Lovells Cadwalader is closely tracking these issues and stands ready to vigorously defend clients facing FCA qui tam litigation.

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