Qui tam lawsuits under the False Claims Act (FCA) have become one of the federal government’s most powerful tools for combating fraud—and a significant source of litigation risk for businesses in regulated industries.
These lawsuits allow private plaintiffs, known as “relators,” to sue on the government’s behalf and share in any recovery. After a relator files suit, the Department of Justice (DOJ) investigates and decides whether to intervene and take over the case. But even if the DOJ declines to intervene, the relator may continue litigating independently.
The DOJ relies heavily on qui tam relators to enforce the FCA. The vast majority of FCA cases begin with a relator’s complaint, and the DOJ has embraced internal policies, even as recently as May, that will increase reliance on relator-driven litigation.
On September 1, 2026, the Eleventh Circuit held in United States ex rel. Zafirov v. Florida Medical Associates LLC that the qui tam provisions do not violate the Appointments Clause of Article II of the U.S. Constitution. The court reversed a district court decision that had found the provisions unconstitutional.
The Constitutional Challenge
The relator, Dr. Clarissa Zafirov, filed an FCA case against insurers, physician groups, and health care services companies, alleging they falsified patient diagnoses to obtain inflated Medicare reimbursement rates. The DOJ declined to intervene, and Zafirov continued litigating the case.
The defendants moved to dismiss, arguing the qui tam provisions violated the Appointments Clause and the Take Care Clause of Article II and the Vesting Clause of Article I. The DOJ then intervened solely to defend the constitutionality of the provisions.
The district court sided with the defendants, holding the qui tam provisions unconstitutional under the Appointments Clause. The court reasoned that because relators wield “core executive powers” and occupy a “continuing office,” they are “officers of the United States” who must be appointed by the President.
The district court did not address the Take Care and Vesting Clause arguments.
Why the District Court Ruling Mattered
The FCA's qui tam provisions have long drawn constitutional scrutiny. In 2023 and again in 2025, Supreme Court Justices questioned the constitutionality of the provisions because they allow private individuals to step into the shoes of the Executive Branch.
Lower courts have echoed these concerns. Last year, for example, Fifth Circuit Judges James Ho and Stuart Kyle Duncan authored concurrences calling for en banc review of qui tam’s constitutionality.
Despite this scrutiny, constitutional challenges had been largely unsuccessful—until the district court’s decision in Zafirov.
Why the Eleventh Circuit Reversed
In reversing and remanding, the Eleventh Circuit held that relators do not occupy a “continuing position established by law”—one of the two requirements for qualifying as an “officer of the United States” under the Appointments Clause.
Instead, the panel concluded that a relator’s position is “occasional and temporary” because the position lasts only for a single case, a relator may bring multiple cases in a year or none, and relators are not required to maintain a place of business.
The panel rejected arguments that the position is “continuing” because FCA cases are often lengthy or because relators receive a share of any judgment.
The panel also rejected the notion that the FCA creates a continuing “office of relator.” The district court had relied heavily on this theory, reasoning that because multiple private parties may separately file FCA suits at any time, the statute effectively creates a permanent office.
The Eleventh Circuit disagreed, finding that this analysis conflicted with Supreme Court precedent: the proper inquiry focuses on whether the individual relator’s position is continuing, not whether the office itself exists on an ongoing basis.
What the Decision Means for FCA Defendants
The decision is a setback for FCA defendants. Following the district court’s ruling, defendants in other FCA cases filed constitutional challenges modeled on Zafirov. The Eleventh Circuit’s reversal now provides additional circuit-level authority rejecting those challenges.
But the ruling is narrow, which leaves some room for optimism from a defense perspective. The panel addressed only the Appointments Clause and remanded the case to the district court to address the Take Care Clause and Vesting Clause arguments.
Given the continued interest from Supreme Court Justices, the constitutional questions surrounding qui tam may receive further review. For now, however, the qui tam enforcement framework remains intact—and relator-driven litigation will continue.
Our False Claims Act Team will continue to monitor these developments.
If you have any questions, or would like additional information, please contact one of the attorneys on our False Claims Act team.
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