Executive Summary
- The U.S. Court of Appeals for the Eleventh Circuit issued its much-anticipated decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, holding that the qui tam provisions of the FCA do not violate the Appointments Clause of Article II of the U.S. Constitution.
- In rejecting the Appointments Clause challenge, the Eleventh Circuit joins all other circuits that have considered the issue.
- This Court expressly declined to reach the defendants’ challenges under the Take Care and Vesting Clauses of Article II and remanded the case so that the district court can evaluate those issues.
The District Court Decision
On September 30, 2024, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida issued a first-of-its-kind ruling in Zafirov, dismissing a qui tam action on constitutional grounds. The case involved relator Clarissa Zafirov, who sued her former employer and others under the False Claims Act (FCA) for allegedly misrepresenting patients’ diagnosis codes to obtain inflated Medicare reimbursements and submitting hundreds of thousands of false claims. The government declined to intervene, allowing the relator to prosecute the case on her own.
Judge Mizelle held that the FCA’s qui tam provisions violate Article II’s Appointments Clause because qui tam relators qualify as “Officers of the United States” who are not properly appointed. Specifically, she found that relators (1) exercise “significant authority pursuant to the laws of the United States” because they can initiate and control litigation on behalf of the United States, and (2) occupy a “continuing position established by law” because the FCA effectively creates a standing “office of the relator.” Because relators are neither nominated by the President nor confirmed by the Senate, nor appointed by a department head or a court, the court concluded that their self-appointment through the filing of FCA qui tam actions violates the Constitution’s structural requirements.
The decision drew heavily on Justice Clarence Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), in which Justice Thomas described the FCA’s qui tam provisions as occupying a “constitutional Twilight Zone” and stated that “there is good reason to suspect that Article II does not permit private relators to represent the interests of the United States in litigation.” Justice Kavanaugh, joined by Justice Barrett, wrote a concurrence in Polansky agreeing that the Court “should consider the competing arguments on the Article II issue in an appropriate case.”
The Eleventh Circuit Decision
On September 1, 2026, the Eleventh Circuit issued its much-anticipated decision. The court rejected the Appointments Clause challenge, joining every other circuit that has considered the issue. See United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 804-807 (10th Cir. 2002); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 753-758 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1040-1042 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 749-759 (9th Cir. 1993). The Court held that relators are not officers of the United States because they do not occupy a “continuing position established by law.” In reaching this decision, the Court applied a three-part test, concluding that a relator (i) has temporary tenure, (ii) does not have any continuing “emolument” (i.e., compensation, profits, perks or other benefits) as a result of their position, and (iii) occupies a role that is personal because they cannot be replaced by another relator. Notably, the Court considered only the question of whether relator occupies a “continuing position” and did not address the district court’s conclusion that relators exercise “significant authority pursuant to the laws of the United States.”
The Court’s decision not to consider whether relators exercise “significant authority” signals a clear desire to rule as narrowly as possible and avoid addressing the other challenges raised by defendants–that the qui tam provisions violate (1) the Take Care clause because the President lacks sufficient supervision and control over relators who wield executive power and (2) the Vesting Clause because relators have the executive power to bring civil enforcement actions on behalf of the United States while the Constitution vests that power in the President alone. The Court remanded the case to the district court to evaluate these challenges. This was a surprise to some given these issues were fully briefed on appeal, addressed at length during oral argument, and the parties agreed they could be ruled on at this time. With its narrow ruling, the Court managed to steer clear of issues that could bear on the analysis of the Take Care and Vesting Clause challenges and avoid going any further in its analysis than the other courts that have considered similar Appointments Clause challenges.
What’s Next?
Interested entities and individuals should continue to focus on developments across several areas, including:
- Remand in Zafirov – the district court may move expeditiously on remand given the remaining challenges raise purely legal questions that have been thoroughly briefed. A dismissal on any of these grounds would almost certainly end up in front of the Eleventh Circuit once again, where the Court would consider the Take Care and Vesting Clause challenges in the larger context of the Supreme Court’s robust enforcement of Article II separation-of-powers principles.
- Third Circuit – on March 18, 2026, the Third Circuit heard oral argument in United States. ex rel. Penelow v. Janssen, No. 25-1818 (3d. Cir.), an appeal of a district court decision upholding a jury verdict in favor of qui tam relators. The numerous issues raised on appeal include the question of whether the qui tam provisions of the FCA are unconstitutional under Article II’s Appointments, Vesting and Take Care Clauses. The district court was unpersuaded by the reasoning in Zafirov, which it dismissed as a “singular non-precedential and out-of-circuit court decision.” The issues were thoroughly briefed before the Third Circuit, though the oral argument centered largely on issues related to the jury instructions and statutory penalties.
- Fifth Circuit – individual judges in the Fifth Circuit have recently expressed skepticism regarding the FCA qui tam provisions. Judge Stuart Kyle Duncan wrote in a March 2025 concurrence in United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A., 133 F.4th 395 (5th Cir. 2025), that the Constitution “does not allow this outsourcing of prosecutorial power to a private person.” In November 2025, Judge James C. Ho issued a similar concurrence in United States ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, LLC, 157 F.4th 758 (5th Cir. 2025), urging the court to “revisit whether there are serious constitutional problems with the qui tam provisions of the False Claims Act.” This skepticism echoes that expressed by three Supreme Court Justices. As noted above, in Polansky, Justices Thomas, Kavanaugh and Barrett suggested that the Court “should consider the competing arguments on the Article II issue in an appropriate case.” More recently, in Wisconsin Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498 (2025), Justice Kavanaugh, joined by Justice Thomas, wrote that the FCA’s qui tam provisions “raise substantial constitutional questions under Article II.”
Key Takeaways
- Given the serious constitutional issues still percolating, defendants should consider raising constitutional challenges in declined cases, on a motion to dismiss or for judgment on the pleadings.
- Defendants should be mindful of the risk of waiver if they forego a constitutional argument or fail to adequately articulate it, as the Supreme Court held was the case when it denied certiorari in Eli Lilly and Co. v. United States ex rel. Streck, No. 25-1126 (May 18, 2026) (cert. denied).
- Defendants should weigh the likelihood of success in a particular jurisdiction—particularly within the Sixth, Ninth and Tenth Circuits, which ruled two decades ago that the FCA is constitutional under both the Appointments Clause and Take Care and Vesting Clauses and have not recently raised the same skepticism that the Fifth Circuit has—against other strategic considerations, such as whether a constitutional challenge might lead the Department of Justice (DOJ) to file a statement of interest taking positions on issues in a non-intervened case where it otherwise may not have.
- Whether defendants raise a constitutional challenge or not, they should continue to articulate for the courts the inequity and incongruity of relators purporting to proceed on behalf of the United States to pursue claims the United States has deemed unworthy of pursuing itself.
- Defendants should continue to advocate that DOJ exercise its statutory dismissal prerogative under 31 U.S.C. § 3730(c)(2)(A), particularly in cases that otherwise warrant declination due to questionable merit and risk consuming substantial judicial and party resources.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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