11th Circ. Rejects Appointments Clause Challenge to FCA Qui Tam Actions

The Eleventh Circuit reversed a district court's unprecedented 2024 decision that had found the False Claims Act's (FCA) qui tam provisions unconstitutional under the Appointments Clause. In United States ex rel. Zafirov v. Florida Medical Associates, the appellate court held that private relators are not "Officers of the United States" requiring presidential appointment, aligning its view with every other circuit to have considered the question and resolving a threat to the government's primary anti-fraud tool.

Counsel for clients in the healthcare, defense, and other government-facing sectors should note that the threat is not eliminated. The court ruled narrowly, remanding the case for the district court to consider separate constitutional challenges under the Take Care and Vesting Clauses. With several Supreme Court justices and other federal judges expressing skepticism about the FCA's constitutionality, these remanded issues could create a new vehicle for high-court review. Defense counsel should continue to preserve these arguments, particularly with similar challenges pending in the Third and Fifth circuits, in anticipation of a potential circuit split or a clean test case for the Supreme Court.