11th Circuit Upholds Constitutionality of FCA Qui Tam Provisions

The U.S. Court of Appeals for the Eleventh Circuit, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, has reversed a district court decision that struck down the False Claims Act’s (FCA) qui tam provisions as unconstitutional. The lower court had reasoned that private relators (whistleblowers) act as "officers of the United States" and therefore must be appointed in accordance with Article II’s Appointments Clause. The Eleventh Circuit disagreed, holding that a relator does not occupy a "continuing position established by law" because their role is temporary, personal to a specific case, and not compensated by a government salary.

This ruling is significant for companies in the healthcare and government contracting sectors, as it preserves the primary mechanism for whistleblower-driven FCA enforcement. By preventing a circuit split, the decision maintains the status quo nationwide, confirming that relators can continue to pursue declined cases. However, the constitutional fight is not over. The Eleventh Circuit remanded the case for the district court to consider other challenges based on the Vesting and Take Care Clauses of Article II, which concern the executive branch's constitutional authority to enforce laws. Given active litigation in other circuits and noted interest from several Supreme Court justices, the ultimate constitutionality of the qui tam framework remains a critical issue for defendants and their counsel.