FEATURE COMMENT: The Eleventh Circuit Overturns the Zafirov Decision on FCA Qui Tam Constitutionality

On September 1, 2026, the Eleventh Circuit issued its long-anticipated decision in U.S. ex rel. Zafirov v. Florida Medical Associates LLC, holding that the qui tam provisions of the False Claims Act are constitutional because relators are not officers of the United States who occupy continuing positions established by law. The decision overturned the 2024 district court ruling that sparked a wave of constitutional challenges to qui tam suits and aligns the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits on the issue. The constitutional debate is far from over, however, as the decision is limited to the constitutionality under the Appointments Clause. The court remanded the case for further evaluation of the parties’ Take Care and Vesting Clause arguments. At the same time, similar constitutional arguments are pending in the Third Circuit, related to the largest-ever FCA judgment in a non-intervened case, and multiple Supreme Court justices have already signaled potential willingness to weigh in on the qui tam provisions’ constitutionality. Crowell's FCA attorneys explain these developments and what's next in a “Feature Comment” published in The Government Contractor.