The 11th Circuit earlier this week handed down its long-awaited decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, reversing the district court and holding that the qui tam provisions of the False Claims Act (FCA) do not violate the appointments clause of Article II of the U.S. Constitution.
In October 2024, we wrote about U.S. District Judge Kathryn Kimball Mizelle’s first-of-its-kind decision dismissing a whistleblower action because she found that the qui tam provisions of the FCA were unconstitutional under the appointments clause. In May 2025, we provided an update on the Department of Justice’s intervention on appeal to the 11th Circuit, urging the court to uphold the FCA.
The Decision
Earlier this week, an 11th Circuit panel (comprised of Judges Elizabeth L. Branch, Robert J. Luck, and Federico A. Moreno) joined the Fifth, Sixth, Ninth, and 10th Circuits in upholding the constitutionality of the FCA’s qui tam provisions. In specifically addressing the appointments clause challenge, the court reasoned that FCA relators are not “officers of the United States” because they do not occupy a “continuing position established by law.” This distinction is critical because the appointments clause requires “Officers of the United States” to be presidentially appointed. The opposite conclusion–that relators must be appointed by the president–would have effectively dismantled the FCA’s qui tam enforcement structure.
Explaining why relators are not officers, the court concluded that relators do not have tenure, emolument, or duties of an officer with a continuing position. Rather, a relator’s role is “occasional and temporary” because it lasts only the length of one case and a relator has no remaining duties if the case is dismissed or settled. Additionally, a relator receives only a one-time contingent fee from a successful judgment–not a continuing salary or appropriation–and thus lacks a “continuing emolument.” And a relator’s role is personal and cannot be assumed by a replacement; if a relator dies or goes bankrupt, a personal representative or trustee carries the claim forward on the relator’s behalf rather than a new relator stepping into the role.
Notably, the 11th Circuit panel addressed only the appointments clause challenge and vacated and remanded for the district court to consider the defendants’ remaining constitutional arguments under the take care clause and the vesting clause. Defendants’ two remaining Article II theories have not yet been considered by the district court and thus remain unresolved.
What’s Next
There are several key takeaways from this decision.
First, the Supreme Court could yet be the last word on this issue because several justices have signaled interest. Indeed, three Associate Justices—Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett—have explicitly cast doubt on the constitutionality of the qui tam provisions of the FCA. There is not yet a circuit split on the issue, but that could emerge soon.
Second, watch what happens in the district court on remand before Judge Mizelle. Two critical constitutional issues remain, and Judge Mizelle could find that either–or both–are independent bases to strike down the FCA’s qui tam provisions.
Third, other circuits–namely, the Third and the Fifth–are taking up similar questions about qui tam relators. Should either of those cases strike down the qui tam provisions of the FCA, that would create a circuit split, which might make Supreme Court review more likely.
For now, Zafirov upholds existing law. Any entities subject to the FCA–particularly healthcare companies or government contractors–should remain vigilant in ensuring their compliance with current law and regulations. But those same entities should closely monitor developments in the district court and other circuits because the landscape could shift in the coming months.
If you have any questions about this case, qui tam actions, or the FCA in general, please reach out to the White Collar Defense group at Lowenstein Sandler.
