On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit issued a significant decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, vacating a closely watched district court ruling that had declared the False Claims Act’s (FCA) qui tam provisions unconstitutional. The Eleventh Circuit held that whistleblowers who bring fraud cases on behalf of the government, known as “relators,” are not “Officers of the United States” under the Appointments Clause and therefore do not need to be appointed by the President.
For healthcare providers, this ruling confirms that the FCA’s qui tam mechanism survives this constitutional challenge in the Eleventh Circuit, though related constitutional questions remain pending on remand. Whistleblower lawsuits, which account for a significant share of FCA recoveries, will continue to pose substantial enforcement and litigation risks. Organizations that bill Medicare or Medicaid should take note: the constitutional defense that many hoped would curb qui tam litigation is now foreclosed in every federal circuit to consider it.
Background: The Case and the Constitutional Challenge
In 2019, Dr. Clarissa Zafirov, a physician, filed a qui tam lawsuit against her employer, Florida Medical Associates (d/b/a VipCare), and several related entities, alleging that they knowingly submitted false Medicare diagnosis codes to receive higher reimbursements, a classic “upcoding” scheme.
The defendants responded with a novel constitutional argument: they claimed that the FCA’s qui tam provisions violate the Appointments Clause of the U.S. Constitution. In plain terms, the Appointments Clause requires that “Officers of the United States” be appointed by the President (or, for inferior officers, by department heads or courts). The defendants argued that FCA relators effectively exercise government enforcement power, investigating fraud, filing suit in the government’s name, and sharing in any recovery, making them government officers who were never properly appointed.
In a closely watched 2024 ruling that drew national attention, the district court (Judge Mizelle, M.D. Fla.) agreed, finding that relators are officers of the United States and dismissing the case. That decision was the first, and only, federal court ruling to strike down the FCA’s qui tam provisions on Appointments Clause grounds.
The Eleventh Circuit’s Decision: Relators Are Not Government Officers
The Eleventh Circuit reversed, applying the Supreme Court’s two-part test from Lucia v. SEC (2018): a person is an “officer” only if they (1) exercise significant authority under federal law and (2) occupy a “continuing position established by law.” The court found that relators fail the second prong. The panel examined four key factors:
Temporary tenure.
A relator’s role lasts only for the duration of a single case and is occasional and intermittent, not permanent.
Limited duration.
Even though FCA cases can take years, the Supreme Court has never treated case duration as establishing a “continuing position.”
No continuing pay from the government.
Relators receive a one-time, contingent fee (up to 30% of any recovery), not a salary, stipend, or regular government appropriation.
Personal, non-transferable duties.
If a relator dies or goes bankrupt, no successor “steps into the role.” The claim passes to a personal representative or trustee, fundamentally different from a replaceable government position.
The court also rejected the argument that the FCA creates a continuous “office of relator,” noting that term appears nowhere in the statute or any other law. The court also distinguished relators from the independent counsel in Morrison v. Olson, who were replaceable, on the government payroll, and funded by permanent appropriations.
A Growing Consensus: Every Circuit Agrees
The Eleventh Circuit’s decision is part of a unanimous trend across the federal appellate courts. Every circuit to address this issue has reached the same conclusion:
- Fifth Circuit – Riley v. St. Luke’s Episcopal Hospital (2001)
- Sixth Circuit – Taxpayers Against Fraud v. General Electric Co. (1994)
- Ninth Circuit – Kelly v. Boeing Co. (1993)
- Tenth Circuit – Stone v. Rockwell Int’l Corp. (2002)
- Eleventh Circuit – Zafirov v. Florida Medical Associates (2026)
No federal appellate court has held that the FCA’s qui tam provisions violate the Appointments Clause. The district court ruling in Zafirov was a significant outlier, one that has now been firmly overturned. For FCA defendants in the Eleventh Circuit, this constitutional defense is effectively dead.
What’s Next: Potential Supreme Court Review
While the Appointments Clause challenge is now resolved at the circuit level, the constitutional fight over qui tam is far from over. The Eleventh Circuit remanded the case to the district court to consider the defendants’ remaining arguments under the Take Care Clause (whether the President has sufficient supervisory control over relators) and the Vesting Clause (whether relators improperly exercise executive power). These theories present distinct questions that have received relatively little appellate attention to date.
Given the significant stakes, the FCA is the federal government’s primary anti-fraud enforcement tool, recovering billions of dollars annually (a record $6.8 billion in FY2025 alone), with qui tam actions accounting for the vast majority of those recoveries. Supreme Court review of these constitutional questions is widely anticipated. The high-profile nature of the Zafirov litigation and the government’s active intervention to defend the statute underscore the significance of this issue.
What This Means for Healthcare Providers
The Eleventh Circuit’s decision sends a clear message: constitutional challenges to the FCA’s qui tam provisions are increasingly not a viable defense strategy. Healthcare providers and executives should not count on Article II arguments to shield them from whistleblower lawsuits. The qui tam mechanism is here to stay, at least for the foreseeable future.
The best protection against FCA liability remains a robust compliance program. Organizations that bill federal healthcare programs should ensure that they have strong internal controls, regular coding audits, effective compliance training and accessible channels for employees to raise concerns internally before turning to the courts. In an environment where an employee with knowledge of billing irregularities can initiate a federal lawsuit, proactive compliance is not just good practice, it is essential risk management.
If your healthcare organization is facing False Claims Act litigation or believes it may be at risk, contact Frier Levitt for a consult.
Jason Silberberg will speak at RISE West 2026 on September 3 during the session, “RA Litigation Today: What Lawyers Say About Risk, Enforcement, and Exposure.” The panel will examine recent False Claims Act cases, DOJ enforcement priorities, OIG audit trends and emerging Medicare Advantage risk adjustment litigation and compliance risks.
