Eleventh Circuit Upholds Constitutionality of FCA’s Qui Tam Provisions, Allowing Whistleblower Suits to Continue

The qui tam provisions of the False Claims Act (FCA) have survived their most serious constitutional challenge to date. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, the U.S. Court of Appeals for the Eleventh Circuit reversed the first and only federal court ruling to strike down the FCA’s qui tam mechanism, holding that private relators who bring fraud claims on behalf of the United States are not “officers of the United States” subject to Article II’s Appointments Clause because they do not occupy a “continuing position established by law.” The Eleventh Circuit remanded the case for further proceedings before the District Court, which will likely consider other, unadjudicated arguments that the qui tam provisions are unconstitutional. Although parallel challenges are advancing in other circuits, and multiple Supreme Court justices have signaled interest in the Article II implications of qui tam enforcement, the Eleventh Circuit’s long-anticipated ruling—which avoids creation of a circuit split and leaves the qui tam mechanism presently intact—is likely to delay a Court ruling on the mechanism’s constitutionality.

Background: The FCA’s Qui Tam Mechanism

The False Claims Act imposes civil liability on persons who knowingly submit false or fraudulent claims to the federal government. What makes the statute distinctive is its qui tam provision, which allows private relators to file suit in the name of the United States. Once a relator files suit under seal, the Department of Justice investigates, and the government decides whether to “intervene” and take over the case or to “decline” and allow the relator to litigate the case on the government’s behalf. If the relator succeeds, the relator receives a substantial share of the government’s recovery. This mechanism has made qui tam suits a significant driver of FCA enforcement: a record-breaking 1,297 qui tam lawsuits were filed during fiscal year 2025.

The District Court Decision

As discussed in a prior Alert, in 2024, Judge Mizelle of the Middle District of Florida granted a motion for judgment on the pleadings and dismissed a qui tam suit on constitutional grounds. Judge Mizelle concluded that a qui tam relator qualifies as an “officer of the United States” under Article II’s Appointments Clause and that the FCA’s qui tam mechanism violated the Appointments Clause because relators are not appointed by the President, a department head, or a court of law. The district court declined to address the defendants’ additional constitutional arguments under the Vesting and Take Care Clauses of Article II. Both the relator and the United States appealed, and the Eleventh Circuit heard oral argument late last year.

The Eleventh Circuit’s Decision

Under the framework established by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), and refined in Lucia v. SEC, 585 U.S. 237 (2018), the relator and United States argued that a relator is not an “officer of the United States” because relators do not exercise “significant authority pursuant to the laws of the United States,” and they do not occupy a “continuing position established by law.”

The Eleventh Circuit agreed with that second proposition—holding that a relator does not occupy a “continuing position,” and thus is not an officer who needs to be presidentially appointed. The Eleventh Circuit reasoned that relators do not hold a continuing position because:

• The role is personal and temporary. A relator’s position is specific to a particular individual and a particular case. Unlike a government office that persists regardless of who fills it, a relator’s role arises only when a specific person files a specific lawsuit, and the relator’s role terminates when that lawsuit concludes. The court emphasized that a relator “occupies a personal role, not one where his ‘duties continue, though the [person] be changed.’”
• Relators do not receive a continuing government salary. Unlike federal officers, relators are not paid by the government for their service. A relator’s potential financial recovery is a contingent share of any eventual judgment or settlement—not a salary or emolument that marks a continuing federal position.
• The FCA does not establish a freestanding “office.” The court rejected the district court’s characterization of the relator’s role as a continuing “office of the relator” established by the FCA, explaining that this evaluation of a fictional office “departs from the Supreme Court’s” approach. The statutory provisions that define a relator’s rights and obligations create a litigation role, not a government position.

What Comes Next

The Eleventh Circuit’s reversal on Appointments Clause grounds is a significant milestone, but it does not end the constitutional inquiry. The district court had declined to reach the defendants’ additional arguments that the FCA’s qui tam provisions violate the Vesting Clause and the Take Care Clauses of Article II. The Eleventh Circuit remanded this case for the district court to consider those remaining constitutional challenges in the first instance. Those arguments focus on a different constitutional concern—not whether a relator holds a government “office,” but whether a private citizen may exercise core executive enforcement power without adequate presidential oversight.

Although the Eleventh Circuit declined to break with its sister circuits on the Appointments Clause issue, two Fifth Circuit judges have issued concurring opinions calling for reconsideration of the FCA qui tam provisions’ constitutionality. Other circuit and district courts are confronting similar challenges. Most recently, litigants in an intervened qui tam action pending in the District of Maine have noticed an appeal in the First Circuit, after the district court rejected their argument that relators should be precluded from participating in litigation in an intervened qui tam case because of constitutional concerns. Additionally, because multiple Supreme Court Justices have signaled interest in the Article II implications of qui tam enforcement, this question may still make its way to the Supreme Court.

Defendants in FCA cases—particularly in declined qui tam actions—should continue to evaluate whether to advance constitutional arguments while these issues remain in active appellate litigation. At the same time, the FCA’s substantive prohibitions on the knowing submission of fraudulent claims remain fully in force, relators can continue to pursue declined cases in all circuits (including the Eleventh), and compliance obligations are unchanged regardless of the qui tam mechanism’s ultimate constitutional fate.

We will continue to monitor developments in Zafirov as the case returns to the district court and as parallel constitutional challenges proceed in other circuits. For more information about this decision and its implications for your FCA matters, please contact your usual contact on the Ropes & Gray litigation and enforcement team or any member of our Chambers Band 1-ranked FCA practice.