Eleventh Circuit Holds That the False Claim Act’s Qui Tam Provisions Do Not Violate the Appointments Clause

On September 1, 2026, the United States Court of Appeals for the Eleventh Circuit issued a long-awaited decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, holding that the False Claims Act’s (FCA) qui tam provisions do not violate the Appointments Clause of the US Constitution. The court of appeals vacated the district court’s order dismissing the case and remanded it for the district court to evaluate the defendants’ remaining constitutional arguments under the Take Care Clause and the Vesting Clause.

The appellate decision vacated the district court’s 2024 ruling from the Middle District of Florida striking that qui tam relators were “officers of the United States” who must be presidentially appointed under the Constitution’s Appointments Clause. The Eleventh Circuit now joins the Fifth, Sixth, Ninth, and Tenth Circuits in holding that qui tam provisions are constitutional under the Appointments Clause.¹

The decision comes at a pivotal moment for FCA enforcement. The Department of Justice (DOJ) is actively encouraging whistleblowers and relators to come forward across a widening range of enforcement areas—from healthcare fraud to trade fraud, customs violations, cybersecurity compliance, and even challenges to diversity, equity, and inclusion (DEI) programs and policies. As discussed in our prior Legal Update, FCA recoveries hit a record-breaking $6.8 billion in 2025, and qui tam filings reached an all-time high of nearly 1,300 cases. The Eleventh Circuit’s ruling ensures that these enforcement tools remain available for now.

Background

Under the FCA’s qui tam provisions, private citizens—or relators—may bring civil enforcement actions on behalf of the United States against entities claiming that they have defrauded the federal government. Relators who successfully prosecute FCA cases may receive a percentage of the government’s recovery, typically between 15% and 30%.

Constitutional challenges to the FCA’s qui tam provisions have increased in the wake of Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), where, joined by Justices Barrett and Kavanaugh, he questioned whether qui tam relators are “officers of the United States” who must be appointed by the President under Article II’s Appointments Clause. Justice Thomas wrote that there were “substantial arguments” that qui tam relators wield executive power without presidential appointment, potentially in violation of the Constitution.

The constitutional challenges to the FCA’s qui tam provisions have focused on three Article II arguments. First, challengers contend that relators function as “officers” who appoint themselves by filing suit without presidential appointment, in violation of the Appointments Clause. Second, the qui tam provisions conflict with the Vesting Clause because they allegedly vest core executive power—the authority to pursue claims and penalties in the government’s name—in private individuals. Third, the provisions violate the Take Care Clause because they allegedly permit private persons to initiate and prosecute suits to enforce federal law without adequate executive oversight.

Following Justice Thomas’ Appointments Clause reasoning, in September 2024, the Middle District of Florida issued the first, and thus far only, federal court ruling holding that the FCA’s qui tam provisions are unconstitutional. United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). The district court found that relators exercise “significant authority” as “officers of the United States” who occupy a “continuing position established by law.” Because relators are not presidentially appointed, the court concluded that qui tam violates the Appointments Clause and dismissed the case.

The court applied the same reasoning again in May 2025 in Gose v. Native American Service Corp. No. 8:16-cv-03411-KKM-AEP (M.D. Fla. May 29, 2025). Every other federal court to consider the issue, however, declined to follow Zafirov. The case was appealed to the Eleventh Circuit, where oral arguments were held on December 12, 2025.

The Eleventh Circuit’s Decision

In a unanimous decision, the Eleventh Circuit held that qui tam relators are not officers of the United States because they do not occupy a “continuing position established by law.” The court applied the two-part test from Lucia v. SEC, 585 U.S. 237 (2018), which asks whether an individual (1) occupies a “continuing position established by law” and (2) exercises “significant authority pursuant to the laws of the United States.” Finding that relators fail the first prong, the court concluded it need not reach the second.

The court relied on Supreme Court guidance from United States v. Germaine, 99 U.S. 508 (1879), and Auffmordt v. Hedden, 137 U.S. 310 (1890), which instruct that the term “officer” “embraces the ideas of tenure, duration, emolument, and duties.” The court evaluated each factor and concluded that relators do not hold a continuing position because:

• A relator’s tenure is “occasional and temporary”;
• A relator’s duration is not permanent;
• A relator’s compensation is contingent based on the success of a single case, not a “continuing emolument”; and
• A relator’s duties are personal.

Why This Decision is Important

The Eleventh Circuit’s reversal of Zafirov means that whistleblowers can rely on the FCA’s qui tam provisions, at least for now. That is significant: the Eleventh Circuit’s decision was the most closely watched case on this question because it was the only case on appeal from a district court finding that the qui tam scheme was unconstitutional, meaning that the court was required to decide—for the first time at the appellate level in the modern era—whether the qui tam provisions violate Article II. Had the Eleventh Circuit affirmed the lower court’s ruling, it would have created a circuit split that would have made the issue ripe for review by the Supreme Court. But this decision does not end the debate, as defendants may ask the Supreme Court—to address the issue. In addition, the court remanded the case to the district court, which may now consider the defendants’ remaining constitutional arguments under the Take Care Clause and the Vesting Clause of Article II.

The decision arrives at a time when the federal government is more aggressively encouraging relators and whistleblowers to use the FCA than at any point in the statute’s history, as we have described in our prior Legal Update. An affirmance of the district court’s ruling would have dealt a significant blow to the government’s enforcement strategy at the very moment DOJ was encouraging whistleblowers across multiple industries to file qui tam suits.

Key Takeaways for Companies and Potential Relators

• Every circuit to have considered a Appointments Clause challenge to the FCA’s qui tam provisions has rejected it. Constitutional challenges under the Take Care Clause and Vesting Clause arguments have not yet been litigated.
• The constitutional challenge is focused on qui tam cases where the government does not intervene; cases where the Department of Justice intervenes are in a different posture.
• Monitor the potential impact on state False Claims Act statutes, which are often modeled on the federal law, with their own qui tam provisions. Companies with exposure to both federal and state FCA claims should remain aware of developments on both fronts.
• With DOJ actively encouraging whistleblowers across multiple enforcement areas—including trade fraud, customs violations, healthcare, cybersecurity, and DEI—companies should proactively strengthen their compliance programs, internal reporting hotlines, and investigation protocols. Robust compliance programs can prevent violations, facilitate early detection, and support voluntary disclosure when appropriate.
• The ruling gives relators and whistleblowers in the Eleventh Circuit renewed confidence that qui tam remains a viable and constitutionally sound pathway to bring fraud to light.
• Companies that become aware of potential FCA exposure—whether through an internal investigation, a government subpoena, or a sealed qui tam complaint—should consult experienced FCA counsel immediately. Early engagement allows companies to assess their exposure, preserve defenses, and consider voluntary disclosure options that may mitigate penalties.

If you have questions about the Eleventh Circuit's decision, the FCA’s qui tam provisions, or how to manage your company’s FCA-related risks, please contact any of the authors of this Legal Update.

 

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¹ See Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787 (10th Cir. 2002).