Eleventh Circuit Vacates Ruling That FCA Qui Tam Provisions Are Unconstitutional
The appeals court held that FCA relators do not occupy continuing positions and thus are not "Officers of the United States" under Article II, joining four other circuits, but remanded unresolved take care and vesting clause challenges.
On September 1, 2026, the Eleventh Circuit vacated the Middle District of Florida's 2024 ruling in Zafirov v. Florida Medical Associates (No. 24-13581), which had held the False Claims Act's qui tam provisions unconstitutional under Article II's appointments clause. The panel reasoned that relators do not occupy a "continuing position" and therefore are not Officers of the United States, and it declined to reach the significant-authority argument, joining the Fifth, Sixth, Ninth and Tenth Circuits on that clause. Unresolved take care and vesting clause challenges were remanded to the district court, and parallel arguments remain pending in the Third and Fifth Circuits, so the qui tam framework's constitutionality is not settled.
Why it matters: FCA exposure is rising sharply — 1,297 qui tam actions were filed in 2025 and more than 780 in the first half of 2026, with healthcare claims accounting for roughly 80 percent of 2025 filings, while cybersecurity, trade enforcement and DEI-related claims emerge. Clients should treat qui tam as a continuing, quantifiable litigation and reserve risk rather than rely on constitutional defenses, and should audit speak-up, non-retaliation and investigation infrastructure. Next to watch: the remanded take care and vesting rulings and the pending Third and Fifth Circuit decisions.