Eleventh Circuit’s Zafirov Decision Leaves Key Constitutional Questions Open Regarding the FCA’s Qui Tam Provisions

In a panel opinion filed on September 1, 2026, the Eleventh Circuit vacated the U.S. District Court for the Middle District of Florida’s decision in United States ex rel. Zafirov v. Florida Medical Associates, which had held that the qui tam provisions violate the Appointments Clause of Article II. But the decision left key constitutional questions open for courts, including potentially the Supreme Court, to consider in the future.

Background

As covered in prior Goodwin alerts here and here, the Zafirov case involves Clarissa Zafirov’s False Claims Act (FCA) lawsuit against various medical providers for allegedly misrepresenting patients’ medical conditions to Medicare. The government declined to intervene, but she continued to pursue the litigation on behalf of the United States as a relator. After defendants jointly moved for judgment on the pleadings or to dismiss for lack of subject matter jurisdiction, the Middle District of Florida issued a groundbreaking decision finding that relators are “officers” under the Appointments Clause and holding that the qui tam provisions are thus unconstitutional.¹

The district court explained that in assessing whether a qui tam relator is an “officer” under the Appointments Clause, it must consider, first, whether relators exercise significant authority under the laws of the United States, and second, whether relators occupy a continuing position established by law.² It answered “yes” to both questions. 

In an opinion that narrowly addressed only the second question, the Eleventh Circuit vacated and remanded. The court held that the “position” of a relator is “occasional and temporary because it lasts the length of one case” and a relator “does not have a permanent tenure.”³ The Eleventh Circuit further reasoned that relators also lack the “critical characteristic of an officer: that he receives a ‘continuing emolument.’”⁴ Relators’ compensation, the court noted, is limited to a one-time award that is contingent on the success of the case.⁵ Finally, the Eleventh Circuit concluded that the role of a relator is personal and not one that can be assumed by someone else.⁶

Implications & What’s Next

Though the parties had briefed and argued other constitutional issues, the Eleventh Circuit declined to address them. The court’s narrow decision therefore left key constitutional questions open, including whether the qui tam provisions violate the “Take Care Clause because the President lacks sufficient supervision and control over relators who wield executive power” and violate the “Vesting Clause because relators have the executive power to bring civil enforcement actions on behalf of the United States while the Constitution vests that power in the President alone.”⁷ The Eleventh Circuit directed the district court to consider these issues on remand, paving the way for another possible ruling that the qui tam provisions are unconstitutional on such alternative grounds. 

The case could also potentially land before the Supreme Court, where defendants would need four votes to grant a cert petition. While the decision did not create a circuit split, at least three justices have expressed interest in considering the issue. On June 16, 2023, Justice Thomas authored a dissent in United States, ex rel. Polansky v. Executive Health Resources, Inc.⁸ His dissent expressed that “there are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.”⁹ In a concurring opinion authored by Justice Kavanaugh, joined by Justice Barrett, Justice Kavanaugh invited the Court to “consider the competing arguments on the Article II issue in an appropriate case.”¹⁰

A couple years later, Justice Kavanaugh wrote another concurring opinion, joined by Justice Thomas, in Wisconsin Bell, Inc. v. United States ex rel. Heath, again expressing that the “Court should consider the competing arguments on the Article II issue.”¹¹

While there is potential Supreme Court appetite to consider the issue, it is also pending in two circuit courts. The Third Circuit heard oral argument months ago in United States ex rel. Penelow v. Janssen, No. 25-1818 (3d Cir.), where arguments raised on appeal include whether the qui tam provisions violate the Appointments, Vesting, and Take Care Clauses of Article II. 

The Article II issue is also pending before the Fifth Circuit in United States ex rel. Taylor v. Healthcare Associates of Texas L.L.C., No. 25-10842 (5th Cir.), where two judges have expressed skepticism of the qui tam provisions’ constitutionality. Judge Duncan authored a concurrence in United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A., describing the “constitutional flaws in the FCA’s qui tam device,” including that it violates both the Appointments Clause and Take Care Clause.¹² Judge Ho likewise opined in a concurring opinion in another case that the Fifth Circuit “should revisit whether there are serious constitutional problems with the qui tam provisions of the” FCA.¹³

The Eleventh Circuit’s decision marks the first circuit court to speak on the topic since Justices Thomas, Kavanaugh, and Barrett have invited courts and litigants to consider Article II challenges to the qui tam provisions. But, as noted, its decision is a narrow one, and it leaves significant constitutional issues unresolved and several avenues for defendants facing qui tam litigation to continue to pursue. 

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The Goodwin Healthcare team will continue to monitor these developments and their potential impact on healthcare providers, life sciences companies, pharmacies, and other industry participants. For more information on the issues discussed in this alert, please contact the authors, reach out to Goodwin's Government Investigations, Enforcement & White Collar Defense, or contact the Goodwin lawyer with whom you typically consult.

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