On September 1, 2026, the Eleventh Circuit upheld the constitutionality of the False Claims Act’s qui tam provision, reversing the lower court’s decision, in United States ex rel. Zafirov v. Florida Medical Associates, LLC.[i] The district court had ruled that the qui tam provision violated the Appointments Clause which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.”[ii] The Eleventh Circuit reversed, “hold[ing] that relators are not officers of the United States subject to the Appointments Clause.”[iii] The constitutionality of the qui tam provision is likely to face continued litigation for two reasons. First, both courts explicitly declined to rule on defendants’ arguments that the qui tam provision also violated the Take Care Clause and the Vesting Clause. Second, for the reasons discussed below, this decision will very likely be petitioned to the Supreme Court.
The Case Everyone Has Been Watching
As we wrote following oral argument, this appeal has been closely watched because of what was at stake: the future of qui tam whistleblower actions under the False Claims Act (“FCA”), a statutory scheme that has for decades empowered private individuals, called relators, to bring fraud claims on behalf of the federal government. Twice in the last three years, Supreme Court justices have questioned, albeit in concurring and dissenting opinions, the constitutionality of the ...
On September 1, 2026, the Eleventh Circuit upheld the constitutionality of the False Claims Act’s qui tam provision, reversing the lower court’s decision, in United States ex rel. Zafirov v. Flori...