Eleventh Circuit Upholds Constitutionality of FCA Qui Tam Provisions

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Sep 29 2026

On September 1, 2026, the Eleventh Circuit held in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581 (11th Cir. Sept. 1, 2026), that the qui tam provisions of the False Claims Act (“FCA”) do not violate Article II’s Appointments Clause because qui tam relators do not “occupy a continuing position established by law,” id. at *1, and are therefore not officers of the United States. The lower court decision in Zafirov was the first to find the FCA’s qui tam provisions unconstitutional, and the Eleventh Circuit’s decision is therefore a significant step towards resolving disputes concerning the constitutionality of qui tam. These provisions will, however, continue to be challenged in Zafirov on remand, where the district court will consider whether they violate the Take Care or Vesting clauses, and in other courts around the country.

Background

The FCA is used to fight fraud and abuse in federal programs and to restore funds to healthcare programs such as Medicare, Medicaid, and TRICARE. It provides that a person who knowingly submits, or causes another person to submit, false claims to the government is liable for treble damages plus a penalty linked to inflation. 31 U.S.C. § 3729(a). The FCA also includes a provision allowing private persons to initiate civil actions on the government’s behalf. 31 U.S.C. § 3730(b). These private persons are called qui tam relators, and they are often insiders such as former employees with personal knowledge of the alleged fraud perpetrated by the defendant. If the government does not intervene in an FCA proceeding brought by a qui tam relator, the relator has the right to conduct the action. 31 U.S.C. § 3730(c)(3). Successful relators receive between 15% and 30% of any judgment or settlement. 31 U.S.C. § 3730(d). In 2025, relators brought a record 1,297 FCA qui tam actions, and qui tam suits accounted for $5.3 billion of the $6.8 billion recovered by the government in FCA actions.

Constitutional Challenges to Qui Tam & Zafirov

Qui tam relators initiate most FCA litigation, but some recent decisions have questioned the constitutionality of the FCA’s qui tam provisions. Justice Thomas, writing in dissent in United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023), observed that the “FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone.” Id. at 449. Justice Thomas noted “substantial arguments that the qui tam device is inconsistent with Article II” and that “Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.” Id. at 449-50. Justice Kavanaugh, joined by Justice Barrett, encouraged the Supreme Court to “consider the competing arguments on the Article II issue in an appropriate case.” Id. at 442.

Following Polansky, most courts have rejected challenges to the constitutionality of the FCA’s qui tam provisions. U.S. ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024), is an exception. There, the court held that the FCA’s qui tam provisions are unconstitutional because an FCA qui tam relator is an officer of the United States who has not been appointed by the President as Article II requires. Id. at 1324. The Eleventh Circuit vacated and remanded, holding the FCA’s qui tam provisions do not violate the Appointments Clause because relators “do not occupy a continuing position established by law[,]” and therefore do not qualify as officers of the United States. Zafirov, No. 24-13581, at *7. The Eleventh Circuit reasoned that relators do not hold a continuing position because: [1] any position a relator has is “occasional and temporary”; [2] relators do not receive a continuing emolument; and [3] their duties are personal. Id. at *4-5. First, in considering whether a relator’s role is “permanent” or “occasional or temporary[,]” the Eleventh Circuit looked to how “intermittent” a relator’s duties are, as well as whether relators are required to keep a place of business. Id. at *5. It concluded a relator’s occasional and nonpermanent tenure weighs against a finding that the relator has a continuing position. Id. at *4. Second, the Eleventh Circuit concluded that even if a qui tam relator’s right to a portion of a judgment in a successful FCA case is an “emolument,” it is not “continuing,” but is instead a one-time award. Id. at *5. Third, the Circuit concluded that a relator occupies a personal role. Id. A qui tam relator “assumes a duty to litigate each case that he files, and his role in the case cannot be assumed by anybody else[.]” Id. Finally, the Eleventh Circuit also disagreed with the district court’s conclusion that the FCA creates an “office of relator” that is continuous regardless of the status of any individual case because multiple private parties can become relators and occupy this office at any time. Id. at *2, *6.

What’s Next

The constitutionality of the FCA’s qui tam provisions will continue to be litigated in Zafirov and in other courts around the country. The Eleventh Circuit remanded to the district court to consider defendants’ arguments that the qui tam provisions violate the Take Care Clause—because the President lacks sufficient supervision and control over relators who wield executive power—and the Vesting Clause—because relators can bring civil enforcement actions on behalf of the United States, which is a power the Constitution vests in the President alone. See, e.g., United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395, 411 (5th Cir. 2025) (Duncan, J., concurring) (arguing that the FCA’s qui tam provisions violate the Take Care Clause).

Similar constitutional arguments under the Appointments Clause, Take Care Clause, and Vesting Clause are pending in both the Fifth Circuit, United States ex rel. Taylor v. Healthcare Associates of Texas, LLC, No. 25-10842 (5th Cir.), and the Third Circuit, United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818 (3d Cir.). And an FCA case pending in the Western District of New York was stayed earlier this month pending the Defendant’s application for appeal on the same grounds. Barnes v. HealthNow New York, Inc., No. 1:16-cv-00088-JLS-HKS (W.D.N.Y. September 10, 2026), ECF No. 239 (“Defendant and the amicus raise strong arguments that the FCA’s qui tam device indeed violates the Constitution’s Vesting Clause and Take-Care Clause, as well as—possibly—the Appointments Clause.”). Defendants in FCA cases brought by qui tam relators are likely to continue to raise constitutional arguments unless and until the Supreme Court resolves the “substantial arguments” identified by Justice Thomas in Polansky, and Freshfields will continue to monitor related developments.