In its September 1, 2026, decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, the U.S. Court of Appeals for the Eleventh Circuit held that the False Claims Act's (FCA) qui tam provisions do not violate Article II's Appointments Clause, reversing the Middle District of Florida's first-of-its-kind ruling to the contrary. 

As we reported in 2024, District Judge Kathryn Kimball Mizelle's 2024 Zafirov ruling made waves by being the first decision to hold that the FCA's qui tam provisions were unconstitutional – a position that found its support in concerns noted by Supreme Court Justices Thomas, Kavanaugh, and Barrett in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023). In particular, Judge Mizelle held that a qui tam relator exercises a "core executive power" requiring appointment by the president under Article II's Appointments Clause. Judge Mizelle stated that "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) (citations omitted).

The Eleventh Circuit's unanimous panel decision, drafted by Judge Elizabeth Branch, rejected Judge Mizelle's holding. As Judge Branch noted, the decision aligns the Circuit with its sister circuits that have addressed the issue of the constitutionality of the qui tam provisions. The Eleventh Circuit held that the role of qui tam relators does not implicate the Appointments Clause for three reasons: 

1. The role of relators is "occasional or temporary" rather than "permanent." The court noted that the "relator's tenure is occasional and temporary because it lasts the length of one case, a relator may bring multiple cases in a year or none, and relators are not required to keep a place of business."
2. Relators do not receive a "continuing emolument," but instead are eligible only for a discrete portion of a final judgment. The court noted that "a relator (1) only receives payment as a one-time award contingent on the success of his case; (2) receives compensation through a portion of the judgment, if any, not through any regular appropriation; (3) works on an intermittent basis (whenever he has a claim to pursue and the litigation is active); and (4) faces no penalty for a refusal to perform except for the loss of his opportunity to receive a contingent fee for succeeding in a given case." 
3. Finally, "a relator occupies a personal role," which cannot be assumed by anybody else except the Attorney General when the government intervenes. 

Importantly, the Eleventh Circuit addressed only the Appointments Clause, while declining to consider the defendants' other arguments under the Take Care Clause and Vesting Clause, remanding those questions to the district court for consideration in the first instance. Thus, further challenges to the constitutionality of the qui tam provisions on alternate grounds may be forthcoming on remand. 

For practitioners, the outcome of the Zafirov appeal means that FCA qui tam cases will continue to proceed as they have for decades. Indeed, as we have reported, the Trump administration has defended the qui tam provisions and treated FCA enforcement as a priority, including by expanding the scope of enforcement into new areas of law, targeting customs violations and allegedly unlawful diversity, equity, and inclusion (DEI) programs. Those cases show no sign of slowing.

At the same time, several current Supreme Court Justices have expressed concerns regarding the constitutionality of qui tam litigation, as have noteworthy dissenting opinions in other circuits. It remains to be seen whether the Supreme Court will accept certiorari in Zafirov or another case raising these other constitutional questions. Until it does, defendants are likely to continue pressing those arguments in courts around the country, notwithstanding the Eleventh Circuit's narrow opinion based on the Appointments Clause.

For more information, please contact:

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

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

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