The U.S. Court of Appeals for the Eleventh Circuit has vacated a lower court ruling that had declared the False Claims Act’s qui tam provisions unconstitutional under the Appointments Clause.
The September 1, 2026, unanimous panel decision in United States ex rel. Zafirov v. Florida Medical Associates LLC concluded that qui tam whistleblowers are not “officers of the United States” requiring presidential appointment.
The case originated when relator Clarissa Zafirov, a physician, filed a False Claims Act suit against her employer, Florida Medical Associates, and related entities alleging Medicare fraud.
Under the FCA’s qui tam provisions, whistleblowers known as relators may bring cases in the name of the U.S. government and receive up to 30 percent of any recovered proceeds.
Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida had in 2024 become the first federal judge to declare these provisions unconstitutional, finding that Zafirov exercised significant executive authority without proper appointment.
The Eleventh Circuit disagreed, finding that a relator’s tenure is intermittent, occasional, and temporary, lasting only the length of a single case rather than constituting a permanent continuing position.
The court also noted that unlike a federal officer, a relator does not receive a “continuing emolument” and their duties are personal and cannot be assumed by others.
At oral argument, Judge Robert J. Luck asked whether any court had ever applied the Appointments Clause to someone not paid by the government through employment or an independent contractor relationship, and attorneys were unaware of any such precedent.
The Eleventh Circuit declined, however, to address whether the qui tam provisions violate the Constitution’s Vesting and Take Care clauses, directing the Middle District of Florida to consider those questions in the first instance on remand.
The panel noted it would “invalidate an act of Congress only ‘for the most compelling constitutional reasons,'” citing Mistretta v. United States as its guiding standard for reviewing the statute’s constitutionality.
The Eleventh Circuit now joins the Fifth, Sixth, Ninth, and Tenth Circuits in rejecting the Appointments Clause challenge to the FCA’s qui tam structure.
The constitutional battle is far from over, with the Third Circuit having heard oral argument on all three Article II questions on March 18, 2026, in United States ex rel. Penelow v. Janssen Products LP.
Defendant Janssen Products argued in its appellate brief that “Article II dictates that all executive power be ‘vested’ in the President” and that together the Vesting and Take Care clauses give the president the “authority to enforce federal law and bring legal actions on behalf of the United States.”
The Chamber of Commerce of the United States of America and the American Tort Reform Association filed an amicus brief arguing that qui tam relators operate as “independent and self-appointed bounty hunters” outside Article II’s carefully crafted constitutional framework.
Amici further contended regarding the Take Care Clause that “the choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs.”
Both defendants and amici in Penelow pointed to a concurring opinion by Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, agreeing that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II.”
That concurrence echoed Justice Clarence Thomas’s 2023 description of the FCA’s qui tam provisions as a “constitutional Twilight Zone,” a phrase that has since become shorthand for the ongoing legal debate.
With the Trump administration actively relying on FCA whistleblowers to pursue priorities ranging from healthcare fraud to challenging diversity, equity, and inclusion initiatives, the stakes of any Supreme Court intervention are extraordinarily high.
Whether the Middle District of Florida or the Third Circuit delivers the next major ruling, a Supreme Court showdown over the FCA’s qui tam framework appears increasingly likely.