On December 12, 2025, the Eleventh Circuit Court of Appeals heard oral argument in the closely watched False Claims Act (FCA) case United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 23-13581. The three-judge panel asked pointed questions of both sides, but did not clearly indicate whether it is likely to strike down this critical part of the government's powerful fraud enforcement mechanism. 

Last year in Zafirov, Judge Kathryn Kimball Mizelle of the Middle District of Florida made history when she held that a qui tam relator lacked constitutional authority to represent the government's interests in a non-intervened FCA case. Following positions previously staked out by Justices Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh in non-majority opinions, Judge Mizelle held that a qui tam relator exercises a "core executive power" requiring appointment by the president under Article II's Appointments Clause. She explained:

A relator exercises core executive power by deciding "how to prioritize and how aggressively to pursue legal actions against defendants who violate the law." Indeed, the ability to initiate an FCA enforcement action for "daunting monetary penalties against private parties on behalf of the United States" is indistinguishable from the Executive Branch's "exclusive authority and absolute discretion to decide whether to prosecute a case." In sum, by suing on behalf of the United States to secure "essentially punitive" penalties, a relator performs a "traditional, exclusive function of the government" that is integral to the "administration and enforcement of the public law." 

United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293, 1309 (M.D. Fla. 2024).

Since Judge Mizelle's decision in September 2024, other judges have expressed doubts about the constitutionality of the FCA's qui tam provision, including in two concurring opinions in the Fifth Circuit, U.S. ex rel. Montcrief v. Peripheral Vascular Associates and U.S. ex rel Gentry v. Encompass Health Rehabilitation Hospital of Pearland, L.L.C. In each case, the judges expressed concern that qui tam relators exercise a classic form of executive authority – the power "to initiate and prosecute suits to enforce federal law" – without the constitutional safeguards that authority requires. Until now, however, no court of appeal has squarely been presented with the question of whether the qui tam provisions violate Article II of the Constitution. That issue is squarely presented in the Zafirov appeal, and an Eleventh Circuit panel made up of Judges Elizabeth Branch and Robert Luck and District Judge Federico Moreno (sitting by designation) heard oral argument on December 12, 2025. 

Much of the argument focused on the history of the FCA and other qui tam statutes in the U.S. that have been in place since the nation's founding. The government argued this history shows that qui tam provisions are constitutional. Judge Branch questioned this proposition, noting that the FCA's constitutionality has not been addressed in decades and the Appointments Clause question has not been presented to the Supreme Court. Counsel for the appellees argued that early qui tam provisions were rarely used and included provisions for enforcement of criminal laws that would almost certainly not pass muster under the Constitution today. Acknowledging this history, Judge Luck observed that "there is no doubt that if the qui tam provisions at the early founding were constitutional, this would have to be. But the question is, were they?" 

The panel also questioned whether qui tam relators occupy a "continuing position" established by law, as required to establish that they are officers of the U.S. under the Appointments Clause. Judge Luck questioned the appellee's counsel on this issue, expressing openness to Justice Thomas's position that relators are appointees, but noting that Justice Thomas's dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), did not explain how relators occupy such a continuing role, when they cannot be replaced in litigation except under narrow statutorily prescribed circumstances. 

On the other hand, Judges Branch, Luck, and Moreno all acknowledged at various times that qui tam relators exercise significant executive authority, without direct control by the government. Referring to his own experience as a district judge in FCA cases, Judge Moreno noted that when the government does not intervene, the cases proceed like any other civil case, entirely directed by the civil plaintiff. Judge Moreno also remarked that while overturning the FCA's longstanding qui tam provisions could lead to chaos, "sometimes the Constitution creates chaos." In so doing, Judge Moreno appeared to embrace the idea that the scope of relators' authority implicates not only the Appointments Clause – which was the basis for Judge Mizelle's opinion – but also raises concerns under the Take Care Clause and Vesting Clause of Article II. 

Since the Zafirov district court decision one year ago, FCA defendants around the country have filed motions to dismiss based on the constitutionality of the qui tam provisions. Some of those arguments have been rejected by district courts, and many are still pending. The Eleventh Circuit's forthcoming decision will be significant as the first court of appeals to directly address the FCA constitutionality questions, though practitioners are likely to continue to assert their arguments until the Supreme Court revisits the issue and answers the questions that Justices Thomas, Barrett, and Kavanaugh raised in recent years.

We will continue to report on these developments and invite readers to review our prior alerts on this topic here, here, and here. In the meantime, please contact any of the Miller & Chevalier attorneys below if you have questions about the False Claims Act. 

Joshua Drew, jdrew@milchev.com, 202-626-5811

Alex L. Sarria, asarria@milchev.com, 202-626-55822

Jason N. Workmaster, jworkmaster@milchev.com, 202-626-5893

Bradley E. Markano, bmarkano@milchev.com, 202-626-6061

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