On September 1, 2026, the US Court of Appeals for the Eleventh Circuit vacated a closely watched district court decision that had held the False Claims Act’s (FCA’s) qui tam provisions unconstitutional under Article II’s Appointments Clause. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, the Eleventh Circuit held that FCA relators are not “Officers of the United States” because they do not occupy a “continuing position established by law.” The court remanded for the district court to consider the defendants’ remaining Article II arguments under the Take Care Clause and Vesting Clause.
The decision invalidates, for now, the only district court ruling that had invalidated the FCA’s qui tam mechanism on Appointments Clause grounds, but it does not end the constitutional debate. The Eleventh Circuit expressly resolved only the Appointments Clause issue, leaving broader separation-of-powers challenges for further litigation.
What the Eleventh Circuit held
The district court had dismissed Dr. Clarissa Zafirov’s declined Medicare Advantage FCA qui tam action after concluding that relators exercise significant federal enforcement authority in a continuing position established by law, thus making them “officers of the United States” who must be appointed by the president and confirmed by the Senate in accordance with the Appointments Clause of Article II. Because relators’ authority to pursue claims on behalf of the government comes from the FCA’s statutory qui tam mechanism rather than an Article II-compliant appointment, the district court found it to be constitutionally impermissible. The Eleventh Circuit reversed.
Applying the Supreme Court’s analytical framework from Lucia v. SEC (which the court assumed without deciding that it applies to FCA relators), the Eleventh Circuit held that relators do not hold a continuing position established by law, which is one of the two threshold requirements that determine whether someone is an officer of the United States subject to the Appointments Clause. The court emphasized that:
- A relator’s role is tied to a single case and ends when that case ends.
- Relators receive no salary, appropriation, or continuing emolument; any recovery is contingent and case-specific.
- A relator’s role is personal and generally cannot be transferred to another relator.
- The FCA does not create an “office of relator” that exists independent of the particular private person who files suit.
Because it found that the role of relator is not a continuing position, the court therefore did not decide whether relators exercise “significant authority” or executive power.
What was not decided
While some commentators and litigants have argued over time that the FCA’s longstanding qui tam provisions are unconstitutional, those arguments had been uniformly rejected by every district court and circuit court to consider them until the district court’s decision in Zafirov. With yesterday’s decision reversing the district court, the Eleventh Circuit joins that broader consensus, but with some significant caveats, as well as room for further consideration of constitutional challenges on remand.
In a carefully limited ruling, the Eleventh Circuit vacated the dismissal and remanded for the district court to address two constitutional arguments the district court had not reached: the Take Care Clause and the Vesting Clause.
Take Care Clause
Defendants argue that declined qui tam actions interfere with the president’s duty to “take Care that the Laws be faithfully executed” because private relators may litigate in the name of the United States even when the Department of Justice (DOJ) declines to intervene. The government and relators typically respond that the FCA preserves sufficient executive control through the DOJ’s rights to receive filings, intervene for good cause, seek dismissal or settlement, and limit the relator’s participation.
Vesting Clause
Defendants also argue that FCA relators exercise executive enforcement power that Article II vests exclusively in the president. This argument overlaps with, but is distinct from, the Appointments Clause issue: Even if relators are not “officers,” defendants contend that Congress cannot vest private parties with authority to prosecute civil fraud claims on behalf of the United States.
On remand, those questions could again produce a ruling that tees up the broader constitutionality of declined FCA qui tam suits for appellate review.
How other circuits have ruled
The Eleventh Circuit aligned itself with the existing circuit-level consensus rejecting Appointments Clause attacks on FCA relators. The decision cited prior decisions from:
- Fifth Circuit: Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001) (en banc)
- Sixth Circuit: United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032 (6th Cir. 1994)
- Ninth Circuit: United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993)
- Tenth Circuit: United States ex rel. Stone v. Rockwell International Corp., 282 F.3d 787 (10th Cir. 2002)
Those courts have generally upheld the FCA’s qui tam provisions against Article II challenges, relying in part on the government’s continuing statutory oversight. The Eleventh Circuit’s decision is narrower than some of those rulings because it addressed only the Appointments Clause.
Signals from the Supreme Court
The Supreme Court has not squarely decided whether FCA qui tam provisions violate Article II. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Court held that FCA relators have Article III standing based on a partial assignment of the government’s claim but expressly declined to address whether qui tam suits violate Article II.
More recently, however, several Supreme Court justices have signaled interest in the issue. In United States ex rel. Polansky v. Executive Health Resources, Justice Thomas dissented and questioned whether a private relator’s prosecution of claims in the name of the United States can be reconciled with Article II. Justice Kavanaugh, joined by Justice Barrett, wrote separately to say that there are “substantial arguments” that the FCA’s qui tam provisions are inconsistent with Article II and that the Court should consider the issue in an appropriate case. In Wisconsin Bell, Inc. v. United States ex rel. Heath, Justice Kavanaugh, joined by Justice Thomas, again noted that FCA qui tam provisions raise substantial Article II questions.
The Court recently declined one opportunity to take up the issue. In Eli Lilly & Co. v. United States, No. 25-1126, the petition presented, among other questions, whether the FCA’s qui tam provisions are unconstitutional; certiorari was denied on May 18, 2026. The denial left an FCA judgment of more than $220 million in place in United States ex rel. Streck v. Eli Lilly but does not constitute a merits ruling.
Other pending or recent matters to watch
Several other cases continue to press the Article II issue.
- Zafirov on remand
The Middle District of Florida will now consider the Take Care Clause and Vesting Clause challenges that the Eleventh Circuit left open. A renewed ruling on those grounds could return the case to the Eleventh Circuit. - Murphy and Shahbabian v. TriHealth, Sixth Circuit Nos. 25-0306 and 25-0307
In two related declined FCA cases in the Southern District of Ohio, the district court rejected Article II challenges based on binding Sixth Circuit precedent in Taxpayers Against Fraud but certified the issue for interlocutory appeal under 28 USC §1292(b). The Sixth Circuit denied the petitions for permission to appeal on January 9, 2026, leaving the district court’s rulings in place. - Streck v. Eli Lilly
Lilly sought Supreme Court review after an adverse Seventh Circuit judgment, presenting the constitutionality of FCA qui tam provisions as one of the questions. The Supreme Court denied certiorari on May 18, 2026.
Key takeaways
The Eleventh Circuit’s Zafirov decision is a significant win for relators and DOJ because it restores the existing circuit consensus that FCA relators are not unconstitutional under the Appointments Clause, but the decision is not the last word. The Take Care Clause and Vesting Clause theories remain live in the Zafirov case itself, and several justices have indicated that they are open to constitutional arguments about aspects of the FCA, which is likely to prompt further development of these issues as defendants in high-stakes FCA matters continue to press and preserve Article II challenges in hopes of eventual favorable resolution by the Supreme Court.
For companies facing declined qui tam litigation, the practical message is mixed: Relators can now point to an appellate decision rejecting Appointments Clause arguments, but broader Article II objections remain open and undecided, particularly in cases where the government declines to intervene yet the relator seeks to litigate significant claims in the government’s name. Importantly, however, none of these constitutional challenges would undermine or invalidate the government’s authority to bring cases on its own behalf under the FCA, nor would they affect the many and growing DOJ and agency programs designed to encourage whistleblowers to raise potentially valid claims that could then be pursued by the government. Businesses and individuals who do business with the federal government or otherwise receive federal funds should continue to remain acutely aware of enforcement risk, regardless of the outcome of these constitutional challenges to one aspect of the FCA.