In a recent decision, the 11th Circuit reversed a lower court’s blockbuster ruling holding that the qui tam provisions of the False Claims Act violate the U.S. Constitution’s Appointments Clause. The appellate court left other key constitutional questions unanswered and remanded the case to the district court for further proceedings, leaving the door open for further judicial consideration of the constitutionality of the qui tam provisions. The Eleventh Circuit’s September 1, 2026, opinion can be found here.
Background Regarding the False Claims Act’s Qui Tam Provisions
The False Claims Act is a civil-war era federal statute that imposes liability on individuals and companies that defraud the federal government. The statute includes so-called qui tam provisions that allow private individuals not affiliated with the government – known as “relators” – to file actions on behalf of the government. If the relator prevails on his or her claim, they can receive a portion of the damages recovered (typically from 15% to 30%).
The phrase qui tam itself is an abbreviation of the longer Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which translates to “who sues on behalf of the King as well as for himself.” Consistent with that structure, modern FCA enforcement has relied heavily on private relators. According to Department of Justice statistics, between 1986 and 2025, more than 76% of FCA actions were initiated as qui tam suits, and aggregate relator awards exceed $60 billion. These figures underscore the central role that private enforcement plays in FCA litigation and the powerful financial incentives that drive relator activity.
In order to pursue a qui tam action, a prospective relator must file his or her complaint under seal, in order to allow the government time to investigate the allegations without alerting the defendant. The U.S. Department of Justice reviews the allegations and decides whether to intervene in the case. If the government elects not to intervene, the relator can continue the lawsuit independently. Because the claims are often filed against the relator’s own company, relators are sometimes referred to as whistleblowers.
The District Court Action
Clarissa Zafirov sued Florida Medical Associates and certain other medical care providers for alleged Medicare fraud. Zafirov alleged that the providers had submitted false claims by misrepresenting patients’ medical conditions to Medicare. The government declined to intervene, leaving Zafirov to proceed on her own on behalf of the government pursuant to the False Claims Act’s qui tam provisions. The defendants moved for judgment on the pleadings, arguing that the False Claims Act’s qui tam provisions are unconstitutional. The government then intervened solely for the purpose of arguing that the qui tam provisions are constitutional.
As discussed here, in September 2024, Middle District of Florida Judge Katherine Kimball Mizelle granted the defendants’ motion, holding the qui tam provisions to be unconstitutional. Judge Mizelle noted that Zafirov herself had not suffered any direct injury from the defendants’ alleged fraud. In Judge Mizelle’s view, Zafirov was not seeking relief for her own private harm. Rather, she was, in the court’s view, acting as an officer of the United States working on the government’s behalf. As an officer of the government, Zafirov was subject to the U.S. Constitution’s Appointments Clause, which provides the President with the authority to nominate, with the advice and consent of the Senate, and appoint officers of the United States.
Because Judge Mizelle found that neither the executive branch nor a court appoints an individual as a False Claims Act relator, she concluded that the qui tam provisions of the False Claims Act violate the Appointments Clause and therefore are unconstitutional. The court then concluded that Zafirov lacked authority to prosecute the case and accordingly dismissed the case with prejudice. Zafirov and the government appealed the dismissal to the Eleventh Circuit.
The Eleventh Circuit’s Opinion
In a September 1, 2026, opinion written by Judge Elizabeth Branch for a unanimous three-judge panel, the Eleventh Circuit reversed the district court’s decision. The appellate court held that “relators are not officers of the United States because they do not occupy a continuing position established by law.”
The position of relator, the appellate court said, is “occasional and temporary because it lasts the length of one case” and a relator “does not have a permanent tenure.” Moreover, relators do not receive “continuing emoluments”; rather, the court notes, relators’ compensation is limited to a one-time award that is contingent upon the success of the case. In addition, the role of relator is personal and not one that can be assumed by someone else.
Discussion
As we noted at the time of the lower court’s decision, the district court’s opinion in this case, holding provisions of a statute that had been on the books for over 160 years to be unconstitutional, was groundbreaking and potentially significant. Indeed, since the time the district court ruled in this case, a number of other parties in other False Claims Act cases have tried to assert similar arguments, arguing that the qui tam provisions violate the Constitution’s appointments clause, as discussed, for example, here.
In reversing the district court’s Appointments Clause holding, the Eleventh Circuit joined four other circuit courts that had similarly upheld the constitutionality of the qui tam provisions.
However, the Eleventh Circuit’s opinion is deliberately narrow. The appellate court did not address two other constitutional challenges the defendants had raised. The defendants had argued that, in addition to the Appointments Clause, the qui tam provisions also violate the Take Care Clause (that is, that the President shall take care to ensure that the laws are faithfully executed) and the Vesting Clause (in which the Constitution provides that the executive power is vested in the President alone).
The Eleventh Circuit directed the district court to consider these issues on remand, creating the possibility of another district court ruling, on alternative grounds, that the qui tam provisions are unconstitutional.
These arguments that the qui tam provisions are unconstitutional do not arise in a vacuum. In a June 2023 dissenting opinion in United States ex rel. Polansky v. Executive Health Resources, Inc., Supreme Court Justice Clarence Thomas said that there are “substantial arguments that the qui tam device is inconsistent with Article II,” noting that “there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits.” Justices Kavanaugh and Barrett added, in a concurring opinion, that “the Court should consider the competing arguments on the Article II issue in an appropriate case.”
Moreover, the Zafirov case is not the only case in the lower courts currently considering the constitutionality of the qui tam provisions. As a September 4, 2026, memo from the Goodwin Proctor law firm notes, there are at least two lower court cases currently pending, in the Third and Fifth Circuits, respectively, that involve challenges to the constitutionality of the qui tam provisions on the same or similar grounds.
The Supreme Court’s justices’ questions about the constitutionality of the qui tam provisions, as well as the volume of current lower court activity concerning the provisions’ constitutionality, seem to suggest the likelihood that sooner or later these questions could make their way to the Supreme Court.
The Supreme Court review, if it were to happen at all, may be several years down the road yet. In the meantime, these issues will continue to percolate in the lower courts, including in the Zafirov case itself. The Eleventh Circuit’s opinion in the Zafirov case is not definitive, but it did at least strike down one case decision holding the qui tam provisions to be unconstitutional. There apparently will be further of this story to be told, even just in the Zafirov case.
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