On December 12, 2025, an Eleventh Circuit panel heard oral argument in a closely watched Justice Department and relator appeal of a 2024 Middle District of Florida opinion finding the qui tam provisions of the False Claims Act (FCA) unconstitutional under Article II’s Appointments Clause. An Eleventh Circuit affirmance almost certainly would fast-track consideration by the US Supreme Court, particularly in light of three Supreme Court Justices recently inviting FCA defendants to raise this constitutional question as well as activity in the Third, Fifth, and Sixth Circuits over the last year.
As previously reported, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, US District Judge Kathryn Kimball Mizelle found that relators are “Officers,” whose self-appointment through the unrestricted filing of FCA qui tam actions in the name of the United States violates Article II. [1] A former law clerk to Justice Thomas, Judge Mizelle’s reasoning closely tracks the Thomas dissent in United States ex rel. Polansky v. Executive Health Resources, which reignited this constitutional question in 2023, [2] two decades after several circuit courts of appeal had reasoned that the qui tam provisions do not violate Article II.
In their appellate briefing, the Justice Department and the relator, Clarissa Zafirov, challenged the notion that a relator is an unappointed “Officer” for Appointments Clause purposes, as Judge Mizelle concluded. They also challenged that the qui tam...
An appellate court has shut the door on reviewing the constitutionality of the qui tam provisions of the False Claims Act (FCA), although two other appellate courts are reviewing this issue, with ...