Eleventh Circuit Upholds FCA Qui Tam Provisions Against Appointments Clause Challenge
Eleventh Circuit reverses the Middle District of Florida and holds that FCA qui tam relators are not 'officers of the United States,' preserving the unbroken circuit consensus on relator constitutionality.
On September 1, 2026, the Eleventh Circuit in U.S. ex rel. Zafirov v. Florida Medical Associates LLC reversed a district court ruling that had declared the False Claims Act's qui tam provisions unconstitutional under Article II's Appointments Clause. Applying the two-part test from Edmond v. United States, the panel (Judges Branch and Luck, plus sitting District Judge Moreno) held that relators do not occupy a 'continuing' position because their tenure is case-specific, intermittent, and compensated by a one-time contingent fee rather than a government emolument. The decision aligns the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits, all of which have upheld qui tam against Appointments Clause challenges. Sophisticated FCA counsel should note that the panel did not reach 'significant authority' under prong two and remanded the Take Care and Vesting Clause arguments for the district court to resolve. Healthcare entities and government contractors face no immediate disruption, but defendants with pending constitutional challenges should reassess strategy given the narrowing of viable theories. Watch for rehearing (due October 16, 2026), certiorari petitions (due November 30, 2026), and parallel Third and Fifth Circuit cases that could still produce a circuit split.