The Eleventh Circuit Court of Appeals Rebuffs the Challenge to the Qui Tam Provision of the False Claims Act
After months of waiting, the Eleventh Circuit Court of Appeals on Sept. 1 turned away a strong constitutional challenge to the qui tam provision of the False Claims Act (FCA) in United States ex rel. Zafirov v. Florida Medical Associates, LLC. The Court held that a whistleblower (or relator) who brings a qui tam action pursuant to the FCA does not violate the Appointments Clause of the United States Constitution.
The Appointments Clause in Article II of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” In September 2024, Middle District of Florida District Judge Kathryn Mizelle held that the FCA’s qui tam provision violates the Appointments Clause. According to the district court, qui tam relators are not appointed by the President but nevertheless act as self-appointed constitutional officers who wield significant government authority when bringing and pursuing a qui tam action on behalf of the government.
In vacating the district court’s decision, the Eleventh Circuit found that qui tam relators do not function as officers of the United States and thus need not be presidentially appointed. Joining several other circuits, the Eleventh Circuit held that relators bringing FCA qui tams do not “occupy a continuing position established by law,” one of the key factors the Supreme Court has established for determining who is a constitutional officer subject to Article II. Though not prominently featured when Zafirov was argued before the Eleventh Circuit, we predicted this outcome on the grounds that the Eleventh Circuit would limit its decision to the narrow constitutional question before it.
Allowing relators to file qui tams to alert the U.S. Department of Justice (DOJ) to suspected fraud and to share in any recovery is crucial to FCA enforcement. Congress strengthened the FCA’s qui tam provision in 1986, and as a result, relator-initiated qui tams drive the overwhelming majority of DOJ False Claims Act enforcement. In 2025, for example, relators filed a record 1,297 qui tams, the highest ever. Of the $6.88 billion in FCA recoveries in fiscal year 2025, $5.34 billion resulted from qui tams. In turn, relators received $330 million in “relators’ share” recoveries. Not surprisingly, Zafirov has been closely watched by relator counsel, defense firms, and business interests for many months.
The battle over the constitutionality of the FCA’s qui tam provision is not over, and it will be rejoined soon in the district court. The Eleventh Circuit remanded Zafirov to the district court to “evaluate the defendants’ Take Care Clause and Vesting Clause [constitutional] arguments.”
The district court did not previously address these two constitutional challenges in its original decision, which was limited to the Appointments Clause analysis. Given the district court’s analysis supporting its Appointments Clause holding and much of the debate by the parties surrounding the history of qui tams in the founding era, it is widely anticipated that the district court will again find the FCA’s qui tam provision unconstitutional on the ground that it violates Article II’s requirement that the President “take care that the laws be faithfully executed.”
Ultimately, the U.S. Supreme Court will determine this issue. Justices Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas have signaled either their openness or opposition (in the case of Thomas) to the FCA’s qui tam provision in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 449 (2023). We will continue to follow and report on these developments.
Please contact A. Brian Albritton, Raquel Ramirez Jefferson or any member of the Phelps Health Care or White Collar Defense and Investigations team if you have questions or need advice or guidance.
