Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.

The Eleventh Circuit panel consisted of Circuit Judges Robert J. Luck and Elizabeth L. Branch as well as Senior District Judge Federico A. Moreno of the Southern District of Florida. Oral argument focused on probing the scope of a relator’s authority as it relates to the Appointments Clause and what weight the court should give the history of bounty statutes as analogs to the FCA’s qui tam provisions.

First, with respect to the Appointments Clause issue, arguments centered on the two-prong test for the appointment of officers of the U.S.: (1) whether the officer occupies a continuing position; and (2) whether the officer exercises significant authority pursuant to the laws of the United States that is reserved for the government. Focusing on the question of the exercise of significant authority, members of the panel appeared to express concern about a relator’s ability to dictate how the United States uses its investigative resources. When a relator files a qui tam suit under seal, by statute the government is required to investigate those claims. At the same time, in cases where the government declines to intervene and the relator elects to continue the case, that litigation proceeds as any other civil suit without the involvement of the government. Judge Moreno noted at one point that from a practical standpoint, upwards of 80% of filed qui tam suits are ultimately litigated by the relator because the government declines to intervene.

Second, with respect to the historical arguments, members of the panel appeared unpersuaded those historical analogs were dispositive, with Judge Branch noting that it has been decades since this issue was considered by another circuit court and that even the U.S. Supreme Court has suggested it may be willing to consider the issue in the right case. Further, while the FCA has been in existence since the Civil War, the panel suggested that may not be sufficient to demonstrate that the qui tam provisions are constitutional, particularly where such constitutional concerns and questions were not raised until more recently and after significant amendment.

Of note, the panel at the outset asked the government to confirm that it had shifted its position since filing its opening brief on appeal, now emphasizing whether relators occupy a “continuing position” while backing off from its initial argument that a private citizen could not act as an “officer” for purposes of Article II considerations. The panel also asked whether the government agreed that the court could resolve the case on legal questions that Judge Mizelle’s opinion had not reached, such as whether the qui tam provisions violate the Vesting and Take Care Clauses.

While Zafirov is now ripe for decision, the Eleventh Circuit is not alone in considering these questions. The Third Circuit is likely to examine the constitutionality of the qui tam provisions in Janssen Products LP’s appeal of a historic $1.6 billion False Claims Act judgement against the company. That case is United States v. Janssen Prods., No. 25-1818 (3rd Cir. 2025).

The issue may also reach the Sixth Circuit soon. In July 2025, the Southern District of Ohio denied a motion to dismiss raising the Article II arguments against the constitutionality of the qui tam provisions but also certified an interlocutory appeal to the Sixth Circuit on the Article II question, although the Sixth Circuit has yet to grant that appeal. See United States ex rel. Murphy v. TriHealth, Inc., No. 1:19-CV-168, 2025 WL 2104279 (S.D. Ohio July 28, 2025).

Finally, multiple Fifth Circuit judges have highlighted perceived constitutional issues with the FCA qui tam provisions, albeit not in controlling opinions. Judge Stuart Kyle Duncan concurred in United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395, 412 (5th Cir. 2025), stating that the U.S. Constitution “does not allow this outsourcing of prosecutorial power to a private person,” but “that is precisely what happens when a private person brings a qui tam action under the FCA.”  And in a concurrence in the Fifth Circuit’s more-recent United States ex rel. Gentry v. Encompass Health Rehabilitation Hosp. of Pearland, LLC, decision, Judge James Ho wrote that “Qui tam relators . . . presume to represent the United States government in federal court, and to defend the interests of the United States Treasury against fraud” but “are neither appointed by, nor accountable to, the President.”  157 F.4th 758, 766 (5th Cir. 2025). Because of such constitutional issues, Judge Ho suggested the court should “revisit whether there are serious constitutional problems with the qui tam provisions of the False Claims Act.”  Id.

Once the Eleventh Circuit weighs today’s arguments and issues a ruling, the next step, no matter which side prevails, may well be a petition for certiorari that could result in Justices Thomas, Barrett, and Kavanaugh taking up the opportunity to consider the question alongside their colleagues on the Supreme Court.