Eleventh Circuit Rejects the Appointments Clause Challenge to the False Claims Act's Qui Tam Provisions

On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit held that private parties who sue under the False Claims Act, known as relators, are not "Officers of the United States," so the statute's qui tam provisions do not violate the Appointments Clause. The court vacated a Middle District of Florida decision that had struck the provisions down and dismissed a case alleging Medicare fraud, and it sent the case back for the district court to weigh two constitutional theories it had not reached. For defendants, the ruling forecloses the most powerful structural defense to qui tam liability in the Eleventh Circuit, at least for now. It is a narrow decision, though. The court resolved only the Appointments Clause and left the Vesting Clause and Take Care Clause challenges open on remand, and the broader Article II question remains unresolved at the Supreme Court.

The case is United States v. Florida Medical Associates, LLC, No. 24-13581, 2026 U.S. App. LEXIS 26923 (11th Cir. Sept. 1, 2026). It is the appeal of the district-court decision widely known as Zafirov, after the relator, Dr. Clarissa Zafirov, and this article uses that shorthand for the litigation as a whole.

Key facts at a glance

• Court: U.S. Court of Appeals for the Eleventh Circuit
• Decided: September 1, 2026
• Citation: 2026 U.S. App. LEXIS 26923, _ F.4th _ (11th Cir. Sept. 1, 2026); D.C. Docket No. 8:19-cv-01236-KKM-SPF
• Panel: Circuit Judges Elizabeth L. Branch and Robert J. Luck, and Senior U.S. District Judge Federico A. Moreno (S.D. Fla.), sitting by designation. Opinion by Judge Branch. Unanimous.
• Disposition: Vacated and remanded
• Holding: FCA relators do not occupy a "continuing position" and therefore are not officers subject to the Appointments Clause; the qui tam provisions are constitutional under that Clause
• What was left open: The defendants' separate Vesting Clause and Take Care Clause challenges, which the district court never reached and which the Eleventh Circuit remanded

Why this case mattered

The False Claims Act is the government's principal civil fraud statute, and most FCA cases, along with most of the dollars at stake, begin with a private relator rather than the government. For a company facing a qui tam suit, the Article II challenge was potentially decisive. If relators are "officers" who must be appointed by the President, the qui tam mechanism is unconstitutional as written, because relators appoint themselves simply by filing suit. A defendant who won on that theory could end a qui tam case at the threshold, whatever the merits of the underlying allegations. That is why the challenge drew heavy participation on both sides.

The theory had gained real traction. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024), Judge Kathryn Kimball Mizelle held that an FCA relator is an "Officer of the United States" who wields core executive power without a constitutional appointment, and she dismissed the case. It was the first time any court had struck down the qui tam provisions on that ground. The Eleventh Circuit has now reversed that ruling.

False Claims Act basics

The False Claims Act, 31 U.S.C. §§ 3729–3733, imposes civil liability on anyone who knowingly presents a false or fraudulent claim for payment to the government or knowingly uses a false record material to such a claim. 31 U.S.C. § 3729(a)(1)(A)–(B). Liability is severe. Each violation carries treble damages plus a per-claim civil penalty, and because every individual false claim counts separately, the penalties can dwarf the government's actual loss.

The statute can be enforced two ways. The Attorney General can sue directly. 31 U.S.C. § 3730(a). Or a private person, the relator, can sue "for the person and for the United States Government" in the government's name through the qui tam provisions. 31 U.S.C. § 3730(b)(1). The mechanics are distinctive:

• Sealed filing. The relator files the complaint under seal and serves it, with the supporting evidence, on the government alone. The complaint stays sealed for at least 60 days, the "seal period," while the government investigates. 31 U.S.C. § 3730(b)(2).
• The government's choice. The government may intervene and take over the lead role, or decline and let the relator proceed alone. 31 U.S.C. § 3730(b)(4). The government intervenes in only about one in five cases.
• Dismissal power. Even after declining, the government may later intervene and move to dismiss over the relator's objection. In United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), the Supreme Court held that a court reviews such a motion under the ordinary voluntary-dismissal standard of Federal Rule of Civil Procedure 41(a) and should grant it in "all but the most exceptional cases."
• The relator's share. A successful relator recovers between 15 and 30 percent of the proceeds, depending on whether the government intervened and on the relator's contribution. 31 U.S.C. § 3730(d).
• Related protections. A first-to-file bar blocks later relators from suing on the same facts, 31 U.S.C. § 3730(b)(5), a public-disclosure bar can defeat claims already aired publicly, and a separate provision protects whistleblowers from employer retaliation, 31 U.S.C. § 3730(h).

Since Congress strengthened the incentives in 1986, relators have filed well over 15,000 qui tam actions, and FCA recoveries now run into the tens of billions of dollars. For a regulated company, those figures are a measure of exposure, and of how much rides on the defenses the statute leaves available. In fiscal year 2025 the Justice Department reported 1,297 new qui tam filings, and relator-initiated matters accounted for the large majority of the more than $5.7 billion recovered in health care fraud cases that year.

Background: from Tampa to the Eleventh Circuit

In May 2019, Dr. Clarissa Zafirov, a physician, filed a sealed qui tam complaint against her employer and related entities: Florida Medical Associates (doing business as VipCare), Physician Partners, Anion Technologies, Freedom Health, and Optimum Healthcare. She alleged that the defendants knowingly submitted false diagnosis codes to make Medicare Advantage patients appear sicker than they were, drawing higher risk-adjusted payments from the government. The defendants dispute the allegations, which remain unproven.

The government declined to intervene at the outset, and the case was litigated for several years. In 2024 the defendants moved for judgment on the pleadings, arguing that the qui tam provisions violate three parts of Article II: the Appointments Clause, the Vesting Clause, and the Take Care Clause. The United States then intervened for the limited purpose of defending the statute's constitutionality.

The district court agreed with the defendants on the Appointments Clause and, having found the provisions unconstitutional on that basis, did not reach the other two theories. Applying the Supreme Court's test from Lucia v. SEC, 585 U.S. 237 (2018), Judge Mizelle concluded that relators exercise "significant authority" and occupy a continuing "office of relator," making them officers who must be, but are not, appointed under the Constitution. She dismissed the case.

The ruling did not come out of nowhere. Twenty-five years earlier, in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778 n.8 (2000), the Supreme Court upheld a relator's standing under Article III but expressly reserved whether qui tam suits comport with Article II. Two years before the Tampa ruling, in Polansky, Justice Kavanaugh, joined by Justice Barrett, wrote that "[t]here are substantial arguments that the qui tam device is inconsistent with Article II," and Justice Thomas dissented on similar grounds. 599 U.S. at 442, 449. The defense bar read those signals as an invitation, and Zafirov was the first court to accept it.

The arguments on appeal

The appeal drew unusually heavy participation, including more than twenty amicus briefs and argument by counsel for a private amicus. The core positions divided cleanly.

The defendants: relators are unappointed officers

The defendants, represented on appeal by a team that included Kannon K. Shanmugam, urged the court to affirm. Their argument proceeded in three moves.

First, they contended that relators exercise "core executive power," because bringing an enforcement action on the government's behalf is a "quintessentially executive" function under Buckley v. Valeo, 424 U.S. 1 (1976), and Seila Law LLC v. CFPB, 591 U.S. 197 (2020). A relator decides whether to sue, whom to target, what theories to advance, and, when the government stays out, controls the litigation through a judgment that binds the United States.

Second, they argued that relators are officers under Lucia because they both exercise significant authority and occupy a continuing position. On the continuing-position element, the defendants leaned on the district court's reasoning that a statutory "office of relator" is "continuous even if it is not continually filled," and they analogized relators to independent counsel in Morrison v. Olson, 487 U.S. 654 (1988), to special prosecutors, and to nineteenth-century bank receivers, all of whom courts treated as officers even though each served in a single matter.

Third, they argued that the qui tam provisions independently violate the Vesting and Take Care Clauses by handing executive power to private parties whom the President cannot meaningfully supervise or remove, citing Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), and Seila Law. On history, they argued that founding-era qui tam statutes were borrowed thoughtlessly from British practice and cannot save a scheme that conflicts with the Constitution's structure, invoking Marsh v. Chambers, 463 U.S. 783 (1983).

The United States and the relator: relators are private parties

The United States and Dr. Zafirov urged reversal, and they emphasized that every federal court of appeals to reach the question had upheld the provisions. See Riley v. St. Luke's Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993); United States ex rel. Stone v. Rockwell International Corp., 282 F.3d 787 (10th Cir. 2002).

The government's lead position was that relators do not exercise executive power at all. Drawing on Stevens, it argued that a relator sues as a partial assignee to pursue a private interest in the share of any recovery, much like a private plaintiff under the antitrust, securities, or environmental laws, and that the Appointments Clause reaches only members of the government's own workforce, which relators are not. In the alternative, the government and the relator argued that relators fail the officer test because their role is temporary, personal to the individual, and confined to a single case, and because a relator draws no federal salary, holds no federal position, and commands no federal resources.

The relator added a structural point on the Take Care and Vesting Clauses. In that telling, the qui tam device enhances rather than diminishes executive power, because it supplies the government with fraud intelligence it might never obtain and hands it a menu of options, to intervene, to dismiss, or to let the relator proceed under statutory supervision.

The amici

The case drew several amicus brief submissions:

• For the statute: Senator Charles Grassley, the Anti-Fraud Coalition, Public Citizen, the Constitutional Accountability Center, former United States Attorneys, and legal historians.
• For the challenge: the Chamber of Commerce, the National Association of Manufacturers, the Pharmaceutical Research and Manufacturers of America, the Pacific Legal Foundation, the Washington Legal Foundation, and prominent conservative figures including Edwin Meese III, Michael Mukasey, Steven Calabresi, and Gary Lawson.

Who decided the case

The panel was composed of two active Eleventh Circuit judges and a veteran district judge sitting by designation:

• Judge Elizabeth L. Branch, appointed to the Eleventh Circuit by President Trump in 2018, wrote the opinion.
• Judge Robert J. Luck, appointed to the Eleventh Circuit by President Trump in 2019, joined it.
• Senior Judge Federico A. Moreno of the Southern District of Florida, appointed to that court by President George H.W. Bush in 1990, sat by designation and joined the opinion.

The composition is worth noting. A unanimous panel of Republican-appointed judges reversed a Republican-appointed district judge and rejected a constitutional theory championed by conservative legal organizations. The decision reads as an application of Supreme Court precedent rather than a referendum on the wisdom of qui tam.

The court's reasoning

The Eleventh Circuit resolved the appeal on a single, narrow ground. It assumed without deciding that the Lucia framework governs relators, who are not government employees, and it declined to reach whether relators exercise "significant authority." The case turned entirely on the other requirement, whether a relator occupies "a 'continuing' position established by law." Because the court concluded that relators do not, it held they are not officers, and it did not need to address anything else.

The court worked from two nineteenth-century decisions, Germaine and Auffmordt, examining the traditional markers of a continuing office: tenure, duration, emolument, and duties. It found that relators fall short on each. See United States v. Germaine, 99 U.S. 508 (1879); Auffmordt v. Hedden, 137 U.S. 310 (1890).

• Tenure and duration. Like the pension surgeon in Germaine and the customs appraiser in Auffmordt, a relator's role is "occasional and temporary." It lasts the length of one case, a relator may bring several suits in a year or none, and when a case is dismissed or settles the relator has no remaining duties. The court rejected the argument that some cases last years, explaining that the Supreme Court has measured duration by whether duties are permanent or intermittent, not by the calendar length of a particular matter.
• Emolument. A relator receives, at most, a one-time contingent share of a judgment, paid from the recovery rather than a regular appropriation, with no penalty for walking away beyond losing the fee. That is not the "continuing emolument" that marks an office.
• Duties. Most decisively, the court held that a relator's duties are personal. A relator's role in a case "cannot be assumed by anybody else" except the Attorney General upon intervention, which distinguishes relators from officers whose "duties continue, though the person be changed." See United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (Marshall, C.J.). When a relator dies or goes bankrupt, the court explained, a personal representative or trustee carries the same claim forward on the relator's behalf; no new relator inherits the office.

The court then rejected the defendants' central analogy. Independent counsel in Morrison was an officer, but the position was impersonal. When one independent counsel resigned, a replacement picked up the same jurisdiction mid-case, and independent counsel drew a government salary from a standing appropriation. Relators have no such replacement mechanism and no appropriation. The court also rejected the defendants' reliance on Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U.S. 650 (2015), explaining that Carter lets a new relator file a separate suit after an earlier one is dismissed on non-merits grounds; it does not let one relator step into another's pending case.

Finally, the court rejected the "office of relator" framing outright. There is no "office of relator" in the FCA or any other statute, the court observed, and the correct question is not whether an abstract office exists but whether an individual occupies a continuing position. No precedent, it noted, has ever looked at an unfilled position and concluded that whoever later fills it thereby holds a continuing office. In a footnote, the court declined to adopt the three-factor continuing-position test the Second Circuit used in United States v. Donziger, 38 F.4th 290 (2d Cir. 2022), preferring to apply the Supreme Court's guidance directly.

With that, the court held that relators are not officers of the United States, that the qui tam provisions do not violate the Appointments Clause, and that the case must return to the district court. It expressly joined the Fifth, Sixth, Ninth, and Tenth Circuits.

What the court did not decide

The narrowness of the opinion is as important as its holding. The Eleventh Circuit resolved only the Appointments Clause question, and only on the continuing-position prong. Three issues remain open:

• The Vesting and Take Care Clauses. The district court never reached the defendants' argument that the FCA unconstitutionally vests executive power in private parties whom the President cannot supervise or remove. The Eleventh Circuit remanded for the district court to consider it in the first instance. That argument, grounded in Free Enterprise Fund and Seila Law, is the defendants' strongest remaining path. It also returns to the same judge who struck the provisions down the first time, so a renewed defense-favorable ruling on the reserved clauses, and a second appeal, is a realistic prospect rather than a remote one.
• Significant authority. The court assumed relators exercise executive authority for the sake of argument and never decided whether that authority is "significant" under Lucia. A future case could revisit it.
• Whether Lucia even applies. The court assumed, without deciding, that the officer framework governs private relators at all.

Defendants in pending qui tam cases will read the remand as an opening, not a closing.

What the decision means going forward

What it changes in the Eleventh Circuit. The most immediate effect falls on defendants. The Appointments Clause defense that ended Zafirov at the district court is, for now, no longer available in the Eleventh Circuit, which covers Florida, Georgia, and Alabama. A company litigating a non-intervened qui tam suit there can no longer expect a threshold constitutional dismissal on that theory and will need to defend on the other Article II grounds and on the merits. The ruling also lands in an active enforcement environment. The underlying case is a Medicare Advantage risk-adjustment matter, the diagnosis-coding theory the government and relators are pressing hardest, so the decision keeps a heavily used enforcement tool in place in a region where health care fraud cases concentrate.

The appellate consensus, and its limits. With the Eleventh Circuit, five circuits have now rejected Article II challenges to qui tam, and this is the first to do so after the modern Appointments Clause cases and the Supreme Court's recent signals. That makes the defense harder to win at the court-of-appeals level today. It does not make the question settled. The panel decided only the Appointments Clause, assumed away two threshold questions, whether Lucia governs relators at all and whether relators wield "significant authority," and never reached the Vesting or Take Care theories. The Supreme Court has not decided any of it, and at least three Justices have said it deserves review. A defendant preserving the challenge is preserving a live issue, not a foreclosed one.

No circuit split has formed yet, but there is one case to keep an eye on. No court of appeals has adopted the Zafirov theory, and the Supreme Court often waits for a split before taking a question, which counsels against immediate certiorari. The Third Circuit, however, is weighing the same Article II challenge in United States ex rel. Penelow v. Janssen Products, LP, argued in March 2026 with a decision awaited. A relator there proceeded without the government, took the case through a six-week jury trial, and obtained a judgment exceeding $1.6 billion (about $360 million in trebled damages plus roughly $1.28 billion in civil penalties on 159,574 false claims). It squarely presents the non-intervened scenario the Eleventh Circuit expressly declined to resolve. One caution belongs with that, though. Unlike the Zafirov appeal, where the constitutionality of qui tam was the whole case, the Article II question is one issue among several in Penelow, which is primarily a challenge to that $1.6 billion judgment on trial-evidence and excessive-fines grounds. The panel could resolve the case on those grounds and never reach the qui tam question. If it does reach the question and rules against the provisions, it would create a circuit split. At least three Justices, in Polansky and again in Wisconsin Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498 (2025), have written that the question deserves attention. Whether the Court ultimately takes up the question will depend on how Penelow and cases like it develop.

The constitutional fight moves to a new front. Because the Eleventh Circuit decided only the Appointments Clause, the Vesting and Take Care Clause theories survive. Those arguments focus on the President's inability to remove or direct a relator, and they do not depend on labeling relators as officers. A defendant who loses the officer argument can still press them. The next round of this litigation, on remand and in other cases, will likely center there.

What defendants should do now. In the Eleventh Circuit the Appointments Clause argument will not carry a case on its own, and it remains a minority position that every court of appeals has rejected. It is still worth raising and preserving. The broader Article II challenge is not dead. A defendant facing a non-intervened qui tam suit should preserve the Vesting and Take Care Clause arguments, keep the Appointments Clause point alive for possible Supreme Court review, and watch both the Zafirov remand and the Third Circuit's Penelow decision. Most qui tam cases, though, are still won or lost on the merits and on the statute's own limits on liability: materiality, falsity, causation, and scienter, along with the first-to-file and public-disclosure bars. And because the government's authority to dismiss a weak qui tam case under Polansky is real and highly deferential, persuading the government to exercise it remains one of the most effective tools a defendant has.

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