Eleventh Circuit to Weigh the Constitutionality of the False Claims Act’s Qui Tam Provisions

On December 12, 2025, the U.S. Court of Appeals for the Eleventh Circuit is scheduled to hear oral arguments in Zafirov v. Florida Medical Associates LLC, No. 24-13581, a case that squarely presents the question of the constitutionality of the qui tam provisions of the False Claims Act (FCA).

U.S. Supreme Court Justice Clarence Thomas drew new attention to the question in a 2023 dissent, and in 2024, a district judge in Florida became the first in the country to hold the provisions unconstitutional.

But 2025 is, of course, a different year. The U.S. Department of Justice (DOJ) relies heavily on FCA whistleblowers to further enforcement goals in the areas of health care fraud, discrimination, gender-affirming care, and more. Further, the Trump administration has recognized the FCA as a strong revenue source for the federal government.

With the matter soon in the hands of the Eleventh Circuit—and likely on the Supreme Court’s radar—we explore this key question.

Justice Thomas’s dissent in the 2023 case of U.S. ex rel. Polansky v. Executive Health Resources—calling the qui tam provisions of the FCA a “constitutional Twilight Zone”—lit the spark for FCA defendants to challenge the constitutionality of the qui tam provisions.[1]

On September 30, 2024, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida stoked the flames.[2]

In an otherwise ordinary FCA case, relator Clarissa Zafirov sued her former employer and others pursuant to the qui tam provisions of the FCA for allegedly misrepresenting patients’ diagnosis codes to obtain inflated reimbursements and submitting hundreds of thousands of false claims to the Medicare program. But Judge Mizelle dismissed the case.  

“Zafirov has determined which defendants to sue, which theories to raise, which motions to file, and which evidence to obtain…,” she wrote. “Yet no one—not the President, not a department head, and not a court of law—appointed Zafirov to the office of relator . . . . Instead, relying on an idiosyncratic provision of the [FCA], Zafirov appointed herself. This she may not do.”[3]

The Zafirov case was appealed to the Eleventh Circuit—which is scheduled to hear oral arguments on December 12, 2025. The Eleventh Circuit’s decision in Zafirov may present the first opportunity to seek certiorari review of the constitutionality of the qui tam provisions by the U.S. Supreme Court, an opportunity Justice Brett Kavanaugh apparently welcomed in his concurrence in Wisconsin Bell, Inc. v. U.S. ex rel. Heath.[4]

The FCA’s Qui Tam Provisions

Section 3730(b) of the FCA authorizes private persons to bring civil actions for violations of the FCA “for the person and for the United States government.”[5] Once the relator initiates the action, the government may elect to intervene and proceed with the action. If it does, the government has primary responsibility for prosecuting the action (or choosing to dismiss it) and is not bound by any acts of the relator. If the government elects not to intervene, however, the relator has the right to proceed with the litigation.

Section 3730(d) provides that if the government proceeds with an action brought by a qui tam relator, the relator will “receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim”—subject to exceptions and limitations—as well as “reasonable” expenses, attorneys’ fees, and costs. If the government does not proceed, the relator will receive an amount which the court decides is reasonable, not less than 25 percent and not more than 30 percent of the proceeds.

A Constitutional Twilight Zone?

Judge Mizelle found the FCA’s qui tam provisions problematic in Zafirov. Specifically, she held that the provisions violate the Appointments Clause, improperly vesting executive power in private litigants. She reasoned that Article II requires that “Officers of the United States” be appointed by “The President alone, in the Courts of Law, or in the Heads of Departments.”[6] Evaluating the role of a qui tam relator, the judge determined that a relator qualifies as an “Officer” under Article II because the relator (1) exercises significant authority pursuant to the laws of the United States, and (2) occupies a continued position established by law.

Yet a relator does not consult with the government before filing suit, receive a commission, or swear an oath of loyalty, the judge stated. A relator has wide discretion regarding, for example, whom to charge, which claims to bring, which legal theories to pursue, whether and how to appeal, and which arguments to preserve. Further, the office of a relator persists by operation of the FCA regardless of the occupant and regardless of any vacancy, making that office “continuous and permanent.”[7] 

Other Cases Addressing the Constitutionality of the FCA’s Qui Tam Provisions

Judge Mizelle identified four cases holding that an FCA relator is not an “[O]fficer of the United States.” Yet she noted that they were non-binding and that only two addressed the “significant authority” question.

In one of these, the 1993 case of U.S. ex rel. Kelly v. Boeing Company, the Ninth Circuit held that the FCA’s qui tam provisions (1) did not violate Article III standing requirements, (2) did not violate separation-of-powers principles, (3) did not violate the Appointments Clause, and (4) did not violate due process.[8] On the Appointments Clause question, the Ninth Circuit concluded that qui tam relators do not have “primary responsibility” and “significant authority” for enforcing the FCA through litigation, as opposed to Officers of the United States.

As it happened, the U.S. District Court for the Central District of Illinois refused to dismiss an FCA case on constitutional grounds the same day as the Zafirov decision.[9] The district court concluded, among other things, that the defendants in that case cited no binding precedent to support their Article II argument.

The Zafirov Briefs

In her opening brief to the Eleventh Circuit, plaintiff-appellant Zafirov points out that every federal court to address Article II challenges to the qui tam provisions has rejected them, uniformly recognizing that qui tam relators are “private parties pursuing partially assigned claims, not Government officers wielding executive power.”[10] Qui tam relators fall outside the Supreme Court’s test for a government employee to be an “Officer of the United States,” she contends, because they neither occupy a continuing position established by law nor exercise significant authority pursuant to the laws of the United States.

The United States, as intervenor-appellant, notes in its brief to the Eleventh Circuit that Vermont Agency of Natural Resources v. United States ex rel. Stevens—in which the Supreme Court held that the qui tam provisions are consistent with Article III (expressing no view relative to Article II)—makes clear that relators do not exercise executive power when they sue under the FCA.[11] The United States also argues that qui tam relators are not Officers of the United States because the Appointments Clause applies only to government workers, not to private citizens; relators do not occupy a continuing position because their role is limited in time and scope, nor do they exercise significant government authority. Finally, the United States points out that Judge Mizelle’s decision does not apply to cases where the government has not yet decided whether to intervene or where the government has intervened.

In their answer brief, the defendants-appellees argue that the FCA’s qui tam provisions violate the Appointments Clause because relators exercise significant authority, including the authority to choose whether and when to file suit on the government’s behalf.[12] They also argue that the qui tam provisions violate the Vesting and Take Care Clauses because, by operating outside the supervision and control of the Executive Branch, relators intrude on the president’s authority to execute the laws and his duty to take care that the laws are faithfully executed.

Several amici curiae filed briefs in support of each position.

Fifth and Sixth Circuits

Two federal appellate circuit court judges in the Fifth Circuit have questioned the constitutionality of the FCA qui tam provisions in their concurrences. In United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., Judge Stuart Kyle Duncan opined that the qui tam provisions of the FCA violate the Appointments Clause by allowing private citizens to exercise executive power despite being neither appointed nor confirmed as an “Officer of the United States”—citing Zafirov.[13] On November 3, 2025, Judge James C. Ho, also on the Fifth Circuit, wrote separately in another concurrence, “in an appropriate case, we should revisit whether there are serious constitutional problems with the qui tam provisions of the [FCA].”[14] Meanwhile, in July 2025, Judge Douglas R. Cole of the U.S. District Court for the Southern District of Ohio certified an order for interlocutory appeal to the Sixth Circuit in a case where the defendants argued that the FCA qui tam provisions violate both the Appointments Clause and the Take Care Clause.

District Courts

Judge Mizelle ruled (again) in May 2025 that the qui tam relator provisions of the FCA are unconstitutional, applying the same logic outlined in the Zafirov decision with respect to the Appointments Clause.[15] Yet district court judges have not followed this lead. Other cases:

• November 7, 2024: The Eastern District of Tennessee emphasized that it was not bound by Zafirov, stating, “This defense [that relators are improperly appointed officers of the United States] is plainly futile. The Sixth Circuit has rejected this argument and unambiguously held that the FCA is constitutional.”[16]
• April 23, 2025: The Middle District of Georgia stated that “[q]ui tam relators are not officers under the Appointments Clause,” noting in a footnote the Zafirov appeal in the Eleventh Circuit.[17]
• May 12, 2025: The District of Vermont wrote, “Zafirov is not binding, nor does this court find its reasoning [holding that relators are ‘officers’ under the Appointments Clause] persuasive.” [18]
• June 27, 2025: The District of Arizona rejected Zafirov, writing that the Ninth Circuit in Kelly (noted by Mizelle, above) “unequivocally held that the qui tam provisions of the FCA do not violate Article II.” [19]
• August 22, 2025: The Western District of Texas rejected the defendants’ Zafirov argument, stating that it is “not bound by another district court’s reasoning” and that “the Fifth Circuit has held [in a 2001 case] that the FCA’s qui tam provisions do not violate the Appointments Clause.”[20]
• August 27, 2025: A different district judge in the Middle District of Florida declined to dismiss a case based on the constitutionality of the FCA’s qui tam provisions, stating that while the court “may be inclined to agree with certain aspects of [Mizelle’s opinion in Zafirov], the weight of the law is contrary at this time.”[21]
• September 29, 2025: The Central District of California denied a motion to dismiss to the extent that defendants contended that the FCA’s qui tam provisions are unconstitutional—and rejected Zafirov, noting that “defendants blatantly ignore binding, 32-year-old Ninth Circuit precedent” in Kelly.[22]
• November 4, 2025: The U.S. District Court for the District of Rhode Island rejected Zafirov, stating, “[T]he Middle District of Florida court has been the only one to rule in this way…. Thus far, every circuit to consider the Appointments Clause issue has ruled precisely the opposite.”[23]

Potential Impact

Regardless of how the Eleventh Circuit decides the pending Zafirov appeal, a petition for certiorari to the U.S. Supreme Court is likely inevitable. More defendants throughout the country are attempting to argue that the FCA’s qui tam provisions are unconstitutional, and more courts are providing their two cents on the issue.

Unsurprisingly, DOJ is defending the constitutionality of the qui tam provisions, as it has historically enjoyed the benefit of significant monetary rewards when pursuing entities under the FCA: topping $2.4 billion in fiscal year 2024 and apparently reaching nearly $3.8 billion in the first half of 2025.

If Zafirov becomes the law of the land, relators may be limited in their ability to pursue qui tam cases, and the government may be solely responsible for initiating and pursuing cases under the FCA. This could lead to a decrease in the overall number of FCA cases initiated, as new qui tam cases have historically outnumbered non-qui tam cases by at least two to one. Of course, alternatively, such a ruling may result in the government devoting significant additional resources to FCA enforcement to ensure the FCA continues to serve as a revenue generator for the federal government.

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For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green Health Care and Life Sciences attorney who regularly handles your legal matters.

Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this Insight.

An earlier version of this Insight appeared in Law360: “The Eleventh Circuit Zafirov Case: Are the Qui Tam Provisions of the False Claims Act Unconstitutional?”

ENDNOTES

[1] U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023).

[2] U.S. ex. rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp.3d 1293 (M.D. Fla. 2024).

[3] Id. at 1300.

[4] Wisconsin Bell, Inc. v. U.S. ex rel. Heath, No. 23-1127 (U.S. Feb. 21, 2025) (“The [False Claims] Act’s qui tam provisions raise substantial constitutional questions under Article II. Those constitutional questions are not before the Court in this case. But in an appropriate case, the Court should consider the competing arguments on the Article II question.” (Kavanaugh, J., concurring)).

[5] 31 U.S.C. § 3730(b).

[6] U.S. ex rel. Zafirov, 751 F. Supp.3d 1293, at 1300.

[7] Id. at 1314.

[8] U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993).

[9] United States ex rel. Lagatta v. Reditus Laboratories LLC, No. 1:22-CV-01203-SLD-JEH, 2024 WL 4351862 (C.D. Ill. Sept. 30, 2024).

[10] Zafirov’s Br., Zafirov v. Fla. Med. Assocs., LLC, No. 24-13581 (11th Cir. Jan. 8, 2025).

[11] 529 U.S. 765 (2000); United States’ Br., Zafirov v. Fla. Med. Assocs., LLC, No. 24-13581 (11th Cir. Jan. 6, 2025).

[12] Fla. Med. Assocs., LLC’s Br., Zafirov v. Fla. Med. Assocs., LLC, No. 24-13581 (11th Cir. Mar. 10, 2025).

[13] U.S. ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395 at 411 (5th Cir. Mar. 28, 2025) (Duncan, J., concurring).

[14] U.S. ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, L.L.C., No. 25-20093 (5th Cir. Nov. 3, 2025).

[15] U.S. ex rel. Gose v. Native Am. Srvs. Corp., No. 8:16-cv-03411-KKM-AEP (M.D. Fla. May 29, 2025).

[16] U.S. v. Chattanooga Hamilton Cnty. Hosp. Auth., No. 1:21-cv-00084 (E.D. Tenn. Nov. 7, 2024).

[17] U.S. v. UnitedHealthcare of Ga., Inc. No. 5:19-cv-00246 (M.D. Ga. Apr. 23, 2025).

[18] U.S. v. Sporn Company Inc., No. 2:24-CV-00617, 2025 WL 1371272 (D. Vt. May 12, 2025).

[19] U.S. ex rel. Stenson v. Radiology Ltd., LLC, No. CV-19-00306-TUC-JGZ, 2025 WL 1785266 (D. Ariz. June 27, 2025).

[20] U.S. ex rel. Gomez v. Koman Constr., No. EP-20-CV-252 (W.D. Tex. Aug. 22, 2025).

[21] U.S. ex rel. Publix Litig. P’ship, LLP v. Publix Super Mkts., Inc., 2025 WL 2468832 (M.D. Fla. Aug. 27, 2025).

[22] U.S. ex rel. Relator LLC v. Tennyson et al., No. 2:23-cv-05887 (C.D. Cal. Sept. 29, 2025).

[23] U.S. ex. rel. Souza v. Embrace Home Loans, Inc., 2025 WL 3072653 (D. R.I. Nov. 4, 2025).