On September 1, 2026, the United States Court of Appeals for the Eleventh Circuit issued its widely anticipated decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, vacating a district court order holding the False Claims Act’s (“FCA”) qui tam provisions unconstitutional under the Appointments Clause of Article II of the U.S. Constitution. The Eleventh Circuit held that relators do not occupy a “continuing position established by law” and thus are not “Officers of the United States” subject to the Appointments Clause. The Eleventh Circuit joined four other circuits (the Fifth, Sixth, Ninth, and Tenth) that had previously rejected similar Appointments Clause challenges to the FCA’s qui tam provisions. However, the Eleventh Circuit remanded the case for the district court to evaluate the defendants’ alternative constitutional arguments under Article II’s Take Care Clause and Vesting Clause — arguments that remain unresolved and provide an alternative pathway for the defendants to challenge the qui tam mechanism.

The Eleventh Circuit’s narrow decision is a mixed bag, offering a win for the relator’s bar and the Department of Justice (“DOJ”) on one issue while at the same time leaving an opening for other constitutional challenges to the qui tam device grounded in Article II’s Take Care and Vesting Clauses. Defendants in qui tam cases will likely continue to make arguments about the constitutionality of the FCA’s qui tam device under those clauses...

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