Back to Status Quo: Eleventh Circuit Upholds FCA’s Qui Tam Provisions Against Appointments Clause Challenge

On Sept. 1, 2026, the Eleventh Circuit held in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, that the FCA’s qui tam provisions do not violate the Appointments Clause of Article II of the U.S. Constitution. No. 24-13581, 2026 WL 2581886 (11th Cir. Sept. 1, 2026). The Eleventh Circuit specifically held that qui tam relators are not “Officers” subject to the Appointments Clause because they do not occupy a “continuing position” established by law.  

In so holding, the Eleventh Circuit reversed a novel 2024 ruling from the Middle District of Florida. That district court ruling spurred significant activity from FCA defendants in raising arguments against the constitutionality of the FCA’s qui tam provisions. 

Background and District Court Decision 

In 2019, a family care physician (Relator) filed a qui tam FCA action against her employer, several other providers and a number of Medicare Advantage Organizations (MAOs). Relator alleged that the providers acted in concert with the MAOs to artificially increase the risk adjustment scores of Medicare Advantage enrollees, in turn increasing the defendants’ capitated payments from the government. 

In February 2024, the defendants sought judgment on the pleadings, arguing that the FCA’s qui tam provisions violate the Appointments, Vesting and Take Care Clauses of Article II of the U.S. Constitution. The defendants also argued that historical practice does not cure those constitutional defects.  

On Sept. 30, 2024, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida issued her opinion in Zafirov, agreeing with the defendants that the qui tam provisions violate the Appointments Clause. Of note, the district court in Zafirov declined to rule on the defendants’ Vesting and Take Care Clause arguments.  

On the Appointment Clause issue, the district court held that relators are “Officers of the United States” because: (1) relators exercise significant authority via the civil enforcement authority they wield on behalf of the United States; and (2) relators occupy a “continuing position” established by law given the FCA prescribes their statutory powers, duties, and compensation. The court also rejected Relator’s arguments that historical practice confirms the qui tam provisions’ constitutionality.  

Because relators are Officers not properly appointed by the president, head of an executive department, or a court, the district court held the qui tam provisions violate the Appointments Clause and dismissed the action. The decision was immediately appealed to the Eleventh Circuit. 

This first-of-its-kind holding in Zafirov led FCA defendants nationwide to raise similar arguments. Where defendants raised such arguments, the U.S. Department of Justice (DOJ) made it a practice to intervene and defend the constitutionality of the qui tam provisions and/or filed statements of interest on the qui tam constitutionality issue. To date, Zafirov has remained an outlier, with all courts (but one) post-Zafirov holding that the qui tam provisions do not violate the U.S. Constitution. The lone exception was a decision from the same district court (Judge Mizelle) in a separate FCA action. 

The Eleventh Circuit’s Decision 

On appeal, the Eleventh Circuit reversed the district court’s decision and held that the FCA’s qui tam provisions do not violate the Appointments Clause. The Eleventh Circuit only addressed one question — whether relators occupy a continuing position established by law. Finding that they do not, the Eleventh Circuit determined that relators are not Officers subject to the Appointments Clause. 

As to the continuing position analysis, the Eleventh Circuit focused on three issues: (1) whether a relator’s tenure is “permanent” or “occasional or temporary”; (2) the relator’s duties and whether such duties are personal to the relator; and (3) the relator’s compensation and whether that compensation is “continuing.” 

Tenure: The Eleventh Circuit concluded that a relator’s tenure is occasional and temporary because it lasts only for the length of a single case, a relator may bring multiple cases in a year or none at all, and relators are not required to maintain a place of business. And if the government or the court dismisses a relator’s case, or if the case settles, the relator retains no remaining duties. The court further rejected the defendants’ argument that the potential length of certain FCA cases — sometimes spanning years — transforms the role into a continuing one.  

Duties: The Eleventh Circuit determined a relator’s role is personal — a relator assumes a duty to litigate each case he or she files, and that role cannot be assumed by anyone else, except by the attorney general when the government intervenes. 

Compensation: The Eleventh Circuit concluded that a relator’s compensation is not continuing because: (1) a relator receives payment only as a one-time award contingent on the success of the case; (2) the relator’s compensation comes from a portion of any judgment, not from a regular appropriation; (3) the relator works on an intermittent basis; and (4) the relator faces no penalty for refusal to perform except the loss of his opportunity to receive a contingent fee. 

In reversing on the Appointments Clause issue, the Eleventh Circuit also remanded to the district court for consideration of the defendants’ Vesting and Take Care Clause arguments. 

Questions Remain 

While the Eleventh Circuit held that the FCA’s qui tam provisions do not violate the Appointments Clause, it remains to be seen how the district court will rule on the separate Vesting and Take Care Clause arguments. At oral argument before the Eleventh Circuit, the panel seemed to indicate interest in the viability of those separate constitutionality questions. 

There is the interrelated question of whether the Supreme Court will grant a petition for certiorari in Zafirov.  

At least three Supreme Court justices have expressed concern over the constitutionality of the qui tam provisions. See, e.g., United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 449 (2024) (Thomas, J., dissenting) (raising “serious constitutional questions” regarding the FCA’s qui tam provisions); id. at. 442 (Kavanaugh & Barrett, JJ., concurring) (sharing Justice Thomas’ concerns and recommending the Supreme Court consider the issue “in an appropriate case.”). It is not yet clear whether a fourth justice would join to garner the requisite votes to grant certiorari. For now, status quo has been restored.  

Notably, this same issue is on appeal before the Third Circuit. At the district court level in that case, a jury found in favor of the relators and awarded over $1.6 billion in damages. While the Third Circuit has already heard oral argument, the case has been referred to mediation, leaving unclear whether the panel will issue a merits decision on the qui tam constitutionality issue. 

The issue is also part of a pending appeal before the Fifth Circuit. While the Fifth Circuit upheld the constitutionality of the qui tam provisions in a 2001 en banc decision, a number of judges on the court have recently expressed reservations about that precedent. In a 2025 concurrence, Judge Ho suggested the court should revisit "whether there are serious constitutional problems with the qui tam provisions" in an appropriate case, and Judge Duncan wrote separately "to point out the constitutional flaws in the FCA's qui tam device." Judge Smith had raised similar concerns in dissent from the original 2001 decision. 

Key Takeaways  

The immediate practical effect of the Eleventh Circuit’s decision is likely to be limited — qui tam enforcement will continue as it has. But there remains the possibility that the Supreme Court grants certiorari. Moreover, the Vesting and Take Care Clause arguments against the constitutionality of the qui tam provisions will continue to be litigated in Zafirov. And there may be decisions forthcoming from the Third and Fifth Circuits on the qui tam constitutionality issue. 

Whether the reversal in Zafirov will curb efforts of FCA defendants to raise qui tam constitutionality issues remains a question.  

Of note, the volume of qui tam actions has only continued to rise since the district court’s decision in Zafirov. In fiscal year 2024, the DOJ received a record-high 980 qui tam complaints, which was quickly dwarfed by the nearly 1,300 qui tam actions filed in fiscal year 2025. Just past the mid-year point of fiscal year 2026, DOJ had noted that it had already received over 780 qui tam complaints, putting DOJ “on pace for another record.” DOJ, FOCUS Initiative for Data Miners Filing Qui Tam Complaints (Apr. 30, 2026). 

Health care providers, federal contractors and other entities subject to potential FCA liability should carefully monitor these developments moving forward.