False Claims Act’s Qui Tam Provisions Upheld by Eleventh Circuit in Zafirov
The Constitution’s Appointments Clause does not bar whistleblowers from bringing fraud claims on behalf of the government.
On September 1, 2026, the Eleventh Circuit issued its decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, reversing a district court ruling that threatened the key provisions of the False Claims Act (FCA). The Eleventh Circuit panel held that the qui tam provisions of the FCA do not violate the Constitution’s Appointments Clause, because whistleblowers (also known as relators) are not “officers of the United States” who require Presidential appointment. With its decision, the Eleventh Circuit joined the Fifth, Sixth, Ninth, and Tenth Circuits in upholding the FCA’s qui tam provisions, which allow whistleblowers who know about fraud against the government to file suit on the government’s behalf.
Dr. Clarissa Zafirov filed her case in 2019 against her former employer and related entities – a Medicare Advantage physician practice group and two Medicare Advantage health insurers – alleging they used false diagnosis codes to inflate Medicare payments. In 2024, the defendants moved for dismissal, arguing the FCA’s qui tam provisions violate three Constitutional provisions: the Appointments Clause because relators exercise a continuing position of federal authority without Presidential appointment; the Take Care Clause because the President lacks sufficient control over relators who wield Executive power; and the Vesting Clause because relators can bring civil enforcement actions on behalf of the government while the Constitution vests that power in the President alone. The district court agreed with defendants on the Appointments Clause, found the FCA’s qui tam provisions unconstitutional, and dismissed the case.
The Eleventh Circuit reversed, holding the “qui tam provisions of the FCA do not violate the Appointments Clause,” because relators do not hold a “continuing position” in the way the Constitution requires for someone to count as an officer of the United States. Unlike a relator, a real officer holds a position with staying power: permanent tenure; continued payment; and duties that cannot be transferred. A relator’s work does not fit that mold. It is “occasional or temporary,” because the work comes and goes with the case, pays through a one-time recovery rather than a “continuing emolument,” and cannot be picked up by a second relator if the first exits the case.
The defendants also argued that the FCA creates a standing “office of relator” that exists independently of any individual, that the office is “filled” whenever someone brings a new case, and Dr. Zafirov’s case should be dismissed because no one was appointed to fill the office. The Eleventh Circuit disagreed, finding there is no office of relator, and “that term is not in the FCA or any other law.”
In rejecting the defendant’s Appointments Clause challenge to the FCA’s qui tam provisions, the Eleventh Circuit preserved the critical role relators play in exposing fraud, separate and apart from the role of a government officer. Whistleblowers are often uniquely positioned to find fraud that would otherwise go undetected. Constitutional questions under the Take Care and Vesting Clauses remain open on remand, but this decision is a significant win for relators, and for continued recovery of taxpayer dollars under the FCA.
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