September 2, 2026
On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit issued an Opinion upholding the constitutionality of the False Claims Act. Specifically, in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, No. 24-13581, 2026 WL ______ (11th Cir. Sept. 1, 2026). the Court found that private individuals filing suit under the False Claims Act (FCA)—known as relators—do not violate the Appointments Clause of Article II of the U.S. Constitution.
In 2019, Dr. Clarissa Zafirov initiated a whistleblower action under the qui tam provisions of the False Claims Act against Florida Medical Associates and related entities. In the Complaint, Dr. Zafirov alleged the entities submitted false claims to CMS with regard to Medicare Advantage beneficiaries’ diagnoses. The government did not intervene in Dr. Zafirov’s case at that time.
As we discussed in a prior blog post, the U.S. District Court for the Middle District of Florida dismissed the action, ruling that relators act as “officers of the United States” and must be, but are not, presidentially appointed pursuant to the Appointments Clause of Article II of the U.S. Constitution. United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024).
The Eleventh Circuit vacated the district court’s dismissal and remanded the case. The panel applied the standard from Lucia v. SEC, 585 U.S. 237 (2018) in analyzing whether a relator occupies a “continuing position established by law.” The panel concluded relators are not officers under Article II based on several key characteristics:
Temporary Tenure: Relators operate on an intermittent basis tied to a single case. They lack general functions, permanent tenure, or a requirement to maintain a place of business.
No Continuing Emolument: Relators receive a one-time contingent fee from a judgment or settlement rather than a fixed salary from regular congressional appropriations.
Personal Duties: A relator’s role is personal; if a relator drops out or abandons the case, no replacement steps in to assume the position.
Zafirov and the United States are correct that relators do not hold a continuing position, which is sufficient to determine that relators are not officers who must be presidentially appointed.
Because relators do not occupy a continuing position, the court held they are not officers subject to the Appointments Clause. The panel joined the 5th, 6th, and 10th circuits in upholding the qui tam provisions against Appointments Clause challenges. No circuit court has held otherwise.
The Eleventh Circuit limited its decision to the Appointments Clause and remanded the case for the district court to evaluate the defendants’ remaining constitutional arguments.
The qui tam provisions of the FCA do not violate the Appointments Clause. Accordingly, we vacate the district court’s order dismissing this case and remand for the district court to evaluate the defendants’ Take Care Clause and Vesting Clause arguments.