Next Stop, Supreme Court? Eleventh Circuit Upholds the Constitutionality of the FCA’s Qui Tam Provisions

On September 1, 2026, the Eleventh Circuit issued its long-anticipated decision in United States v. Florida Medical Associates, LLC, – F.4th –, 2026 WL 2581886 (11th Cir. Sept. 1, 2026) (the “Zafirov appeal”) overturning 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 United States Constitution because relators are not officers of the United States that occupy “continuing positions.” The Eleventh Circuit did not reach other arguments made by the parties and remanded the case to the District Court for the Middle District of Florida to address two other constitutional arguments challenging the FCA’s qui tam provisions based on Article II’s Vesting and Take Care Clauses. 

In the September 2024 decision underlying the Zafirov appeal, Judge Kathryn Kimball Mizelle of the Middle District of Florida dismissed relator Clarissa Zafirov’s case and held that the qui tam provisions are unconstitutional under Article II’s Appointments Clause because it found relators to be “officers” of the United States and, as such, must be appointed by the Executive. Because qui tam relators are self-appointed, the court found the qui tam provisions to be unconstitutional. The district court relied on the Supreme Court’s Lucia v. SEC decision, which held that government officers, as distinct from mere employees of the government, “exercise significant authority pursuant to the laws of the United States” and “occupy a ‘continuing’ position established by law.” 585 U.S. 237, 245 (2018) (quoting United States v. Germaine, 99 U.S. 508, 511 (1879)). The district court did not reach the Vesting and Take Care Clause arguments. 

Zafirov appealed to the Eleventh Circuit. Following oral argument in December 2025, the Eleventh Circuit overturned the decision on the basis that relators do not hold a continuing position, “which is sufficient to determine that relators are not officers who must be presidentially appointed.” Working through the key factors for analyzing the meaning of the term “officer” under the Appointments Clause, the Eleventh Circuit reasoned that the relator’s position is (1) temporary, (2) without a continuing emolument, and (3) the duties are personal because if the relator drops out of the case, nobody can replace him. The Eleventh Circuit also was not convinced by the defendants’ arguments that length of time in the role is determinative as to whether it is “continuing” for purposes of the Appointments Clause. Likewise, the Eleventh Circuit did not consider that a relator is entitled to a share of a recovery as a factor showing the role to be “continuing” as it is a one-time, contingent payment. The Eleventh Circuit noted that its decision is consistent with its sister Circuits that have analyzed constitutionality under the Appointments Clause. 

This decision swings the FCA pendulum back in relators’ favor for now. Since the district court decision, a significant percentage of defendants have attempted to make similar constitutional arguments when responding to FCA suits. This holding will limit such defenses—at least in the Eleventh Circuit—pending an en banc rehearing or reversal by the Supreme Court. Indeed, now that the Eleventh Circuit has weighed in, a petition for certiorari to the Supreme Court seems likely, despite the Eleventh Circuit declining to address the Vesting and Take Care Clauses issues that defendants raised at the district court. 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). 

Another pending FCA case challenging constitutionality also could convince the Supreme Court to grant a petition. Janssen Product LP’s appeal of a historic $1.6 billion FCA judgment in United States v. Janssen Prods., No. 25-1818 (3d Cir. 2025) also has pending challenges to the constitutionality of the qui tam provisions. Given the significance of the issue to FCA enforcement, it is possible that the Court will have the appetite to take up this groundbreaking constitutional attack on the qui tam practice even without further appellate action.