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Eleventh Circuit Upholds False Claims Act Qui Tam Provisions in Zafirov—but the Constitutional Fight Is Not Over
False Claims Act attorney Georgia:
The Eleventh Circuit has issued the highly anticipated decision we discussed in our June 2026 article concerning the constitutionality of the False Claims Act’s whistleblower provisions.
And, at least for now, the False Claims Act’s qui tam system survives.
On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit vacated the district court’s dismissal in United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581.
The Eleventh Circuit rejected the district court’s conclusion that False Claims Act relators—private whistleblowers who prosecute FCA cases in the name of the United States—are “Officers of the United States” who must be appointed in accordance with Article II of the Constitution.
But the decision does not necessarily end the constitutional challenge to the False Claims Act.
Instead, the Eleventh Circuit sent the case back to the district court to consider two additional constitutional arguments that were never decided below: whether the qui tam provisions violate the Constitution’s Take Care Clause or Vesting Clause.
For companies, physicians, health care providers, government contractors, and individuals facing False Claims Act investigations or litigation, the September 1 decision is important.
The most significant constitutional challenge to the FCA’s qui tam mechanism has been rejected by the Eleventh Circuit—but other constitutional arguments remain alive.
What Happened in Zafirov?
As we discussed in our earlier article, Zafirov arose from allegations of Medicare fraud.
Dr. Clarissa Zafirov brought a False Claims Act lawsuit against her employer and related health care entities. She alleged that the defendants knowingly submitted false diagnosis codes to Medicare in order to receive payments to which they were not entitled.
The United States declined to intervene initially, meaning that Dr. Zafirov proceeded with the litigation as a private FCA relator.
Years into the litigation, the defendants attacked something much larger than the underlying fraud allegations:
They challenged the constitutionality of the False Claims Act’s qui tam system itself.
The defendants argued that permitting a private citizen to exercise federal enforcement authority in the name of the United States violates Article II of the Constitution.
The district court agreed with one of those arguments.
The District Court’s Landmark 2024 Decision
The constitutional problem, according to the district court, arose from the enormous authority exercised by a False Claims Act relator.
A relator can bring litigation in the name of the United States, select defendants, pursue discovery, litigate motions, and potentially prosecute a massive federal fraud case even after the Department of Justice declines to intervene.
The district court concluded that a relator exercising that authority qualified as an “Officer of the United States.”
That presented a constitutional problem.
Article II provides a specific mechanism for appointing federal officers. A False Claims Act relator is not appointed by the President, a court, or the head of a federal department.
Instead, the relator effectively assumes the position by filing a qui tam lawsuit.
The district court therefore concluded that the arrangement violated the Appointments Clause and dismissed Zafirov’s case.
The decision immediately attracted national attention because, if its reasoning ultimately prevailed, it could threaten one of the federal government’s most powerful fraud-enforcement mechanisms.
The Eleventh Circuit Disagrees: FCA Relators Are Not Federal Officers
On September 1, 2026, the Eleventh Circuit rejected the district court’s Appointments Clause analysis.
The appellate court focused on a fundamental requirement for determining whether someone qualifies as an “Officer of the United States.”
Under Supreme Court precedent, officer status requires more than the exercise of significant federal authority. The person must also occupy a “continuing position established by law.”
The Eleventh Circuit concluded that an FCA relator does not.
A relator’s role is tied to a particular lawsuit. The position is temporary and personal to the relator. The relator does not receive a continuing government salary or other continuing compensation, and the relator’s duties are not transferred to a successor who occupies an ongoing governmental office.
In short, the Eleventh Circuit rejected the concept that the False Claims Act creates a permanent governmental “office of relator.”
Because relators do not occupy a continuing governmental position, the court held that they are not “Officers of the United States” for purposes of the Appointments Clause.
Accordingly:
The False Claims Act’s qui tam provisions do not violate the Appointments Clause.
The Eleventh Circuit vacated the dismissal of Zafirov’s case.
The Eleventh Circuit Now Joins Other Federal Appeals Courts
The decision is also significant because the Eleventh Circuit joined the other federal appellate courts that have considered similar Appointments Clause challenges to False Claims Act relators.
The Fifth, Sixth, Ninth, and Tenth Circuits have previously rejected constitutional challenges based on the theory that FCA relators are improperly appointed federal officers.
The September 1 decision therefore does not create a circuit split on the Appointments Clause question.
Instead, the Eleventh Circuit has now aligned itself with the other circuits that have addressed that issue.
For False Claims Act defendants in Georgia, Florida, and Alabama, which comprise the Eleventh Circuit, the decision is particularly important.
At the appellate level, an argument that the ordinary FCA relator violates the Appointments Clause because the relator has not been constitutionally appointed now faces binding Eleventh Circuit precedent.
But Zafirov Is Not Over
This may be the most important part of the September 1 ruling.
The Eleventh Circuit did not resolve every constitutional challenge to the False Claims Act’s qui tam provisions.
The defendants originally raised three separate Article II arguments:
- Appointments Clause — the relator allegedly acts as an unconstitutionally appointed federal officer;
- Take Care Clause — allowing a private relator to prosecute federal claims allegedly interferes with the President’s constitutional obligation to “take Care that the Laws be faithfully executed”; and
- Vesting Clause — permitting a private citizen to exercise federal enforcement authority allegedly conflicts with Article II’s vesting of executive power in the President.
The district court found an Appointments Clause violation and therefore did not reach the other two arguments.
The Eleventh Circuit reversed the Appointments Clause holding.
But instead of deciding the remaining constitutional questions itself, the appellate court remanded the case to the district court to consider the Take Care Clause and Vesting Clause challenges.
That means the constitutional litigation continues.
The Next Battle: Who Controls a Declined False Claims Act Case?
The unresolved issues go to the heart of the unusual structure of the False Claims Act.
The federal government unquestionably possesses authority to investigate and prosecute fraud against itself.
The more difficult constitutional question is what happens when the government declines to intervene and allows a private citizen to prosecute the government’s claim.
Under the False Claims Act, the government retains substantial statutory rights even after declining intervention.
But the private relator can nevertheless conduct extensive litigation in the name of the United States.
That raises a broader separation-of-powers question:
Does the Executive Branch retain sufficient control over litigation brought in the name of the United States when a private relator is actually prosecuting the case?
The district court will now have an opportunity to address that issue through the defendants’ remaining Take Care Clause and Vesting Clause arguments.
What Does the Decision Mean for False Claims Act Defendants?
For defendants, the immediate consequence is straightforward:
Qui tam False Claims Act litigation remains alive in the Eleventh Circuit.
Companies and individuals cannot currently obtain dismissal merely by arguing that an FCA relator is an improperly appointed “Officer of the United States.”
But defendants should not interpret Zafirov as eliminating every constitutional defense to qui tam litigation.
The Eleventh Circuit expressly remanded the case for consideration of the remaining Article II challenges.
Those issues may be particularly important in declined cases, where the Department of Justice has chosen not to intervene and the private relator is conducting the litigation.
The constitutional argument has therefore become narrower—but it has not disappeared.
Why Zafirov Matters So Much in Health Care Fraud Cases
The False Claims Act is especially significant in the health care industry.
FCA investigations and lawsuits frequently arise from allegations involving:
- Medicare billing;
- Medicaid billing;
- allegedly false diagnosis codes;
- medically unnecessary services;
- laboratory testing;
- genetic testing;
- durable medical equipment;
- improper physician referrals;
- Anti-Kickback Statute allegations;
- Stark Law issues;
- pharmaceutical arrangements;
- hospice and home health services;
- upcoding;
- false certifications; and
- allegedly improper reimbursement claims.
A whistleblower—often a current or former employee, physician, billing professional, executive, or business partner—can file a sealed qui tam complaint alleging that a health care provider caused false claims to be submitted to the government.
The Department of Justice then investigates and determines whether to intervene.
If DOJ declines, the relator may still be permitted to proceed.
Zafirov matters precisely because it challenges the constitutional legitimacy of that last scenario.
A Declined FCA Case Does Not Mean the Case Is Over
Health care providers sometimes misunderstand what it means when DOJ declines to intervene in a qui tam case.
Declination can certainly be an important development.
But it does not necessarily mean the lawsuit disappears.
The private relator may continue litigating the case on behalf of the United States.
And because False Claims Act liability can include treble damages and statutory penalties for individual violations, the financial exposure can become enormous.
That makes early defense strategy critical.
False Claims Act Cases Can Also Create Criminal Exposure
Companies and individuals facing FCA allegations should also recognize another important issue:
A civil False Claims Act investigation can overlap with a federal criminal investigation.
Allegations involving false Medicare claims, kickbacks, fabricated medical records, false certifications, medically unnecessary procedures, or fraudulent billing can potentially attract scrutiny from criminal investigators and prosecutors.
That may include agencies such as:
DOJ, FBI, HHS-OIG, DEA, or other federal investigative agencies.
For physicians and other licensed health care professionals, additional consequences can include licensing proceedings, Medicare or Medicaid exclusion, credentialing issues, hospital-privilege problems, and potential DEA consequences.
The civil and criminal strategies therefore should not be developed in isolation.
What Should You Do If You Receive an FCA Subpoena or Learn About a Qui Tam Investigation?
Do not assume that receiving a subpoena means the government has already decided that fraud occurred.
But do not treat it as a routine records request either.
An FCA investigation can involve years of billing data, medical records, emails, text messages, internal compliance materials, employee communications, financial records, and other evidence.
Early counsel can help determine:
What is the government actually investigating?
Is the investigation civil, criminal, or parallel?
Which billing practices or transactions are under scrutiny?
Who are the potential individual targets?
Is there a sealed qui tam complaint behind the investigation?
What evidence exists that contradicts the government’s theory?
Are the alleged false claims actually the product of reasonable medical judgment, coding disagreements, regulatory ambiguity, or mistake rather than knowing fraud?
Those distinctions can be critical under the False Claims Act.
Zafirov Preserves Qui Tam—for Now
The September 1, 2026 decision represents an important victory for the continued operation of the False Claims Act’s qui tam framework.
But it is not necessarily the final word on its constitutionality.
The Eleventh Circuit held that FCA relators are not “Officers of the United States” because they do not occupy continuing positions established by law. That defeats the Appointments Clause theory accepted by the district court.
But the court sent the case back for consideration of the defendants’ Take Care Clause and Vesting Clause challenges.
So the constitutional question has changed.
It has not disappeared.
For businesses, physicians, health care providers, executives, and other individuals facing False Claims Act allegations in Georgia and throughout the Eleventh Circuit, Zafirov is a decision worth watching closely.
Facing a False Claims Act Investigation? The Civil Case May Be Only Part of the Risk.
False Claims Act cases can expose companies and individuals to enormous financial liability.
For physicians, health care executives, and other professionals, the consequences can extend further—to criminal investigations, professional licenses, Medicare and Medicaid participation, DEA registration, credentialing, and professional reputation.
At Conaway & Strickler, P.C., we represent individuals and businesses facing complex federal investigations, health care fraud allegations, False Claims Act matters, and parallel civil and criminal proceedings.
If you have received a Civil Investigative Demand, federal subpoena, grand jury subpoena, search warrant, DOJ inquiry, HHS-OIG inquiry, or notice of a False Claims Act investigation, the time to evaluate the government’s allegations and potential exposure is before critical decisions are made.
Contact Conaway & Strickler, P.C. to discuss your False Claims Act or federal health care fraud matter.
Frequently Asked Questions About the Zafirov False Claims Act Decision
What did the Eleventh Circuit decide in Zafirov?
On September 1, 2026, the Eleventh Circuit held that False Claims Act relators are not “Officers of the United States” because they do not occupy a continuing position established by law. The court therefore held that the FCA’s qui tam provisions do not violate the Constitution’s Appointments Clause.
Did the Eleventh Circuit rule that the entire False Claims Act is constitutional?
No. The court resolved the Appointments Clause issue presented on appeal but remanded the case for the district court to consider the defendants’ remaining Take Care Clause and Vesting Clause arguments.
Was the False Claims Act struck down?
No. The Eleventh Circuit vacated the district court’s dismissal. Qui tam False Claims Act actions continue to be available in the Eleventh Circuit.
Does Zafirov apply in Georgia?
Yes. Decisions of the U.S. Court of Appeals for the Eleventh Circuit govern federal courts within Georgia, Florida, and Alabama.
What is a False Claims Act qui tam lawsuit?
A qui tam action allows a private person known as a “relator” to bring specified False Claims Act claims in the name of the United States. The government has an opportunity to investigate and decide whether to intervene in the litigation.
What happens when DOJ declines to intervene in a False Claims Act case?
Declination does not necessarily end the case. Subject to the FCA’s statutory framework, the relator may continue pursuing the action even though the federal government has declined to take over primary responsibility for litigating it.
Can a False Claims Act investigation become a criminal case?
Potentially. Conduct underlying FCA allegations may also be investigated under federal criminal statutes depending upon the facts. This is particularly important in health care fraud cases involving allegations of intentional false billing, kickbacks, fabricated records, or other allegedly fraudulent conduct.
What should a physician do after receiving an FCA subpoena?
Contact Conaway & Strickler, PC. We are experienced with federal investigations and we work with you before providing substantive explanations concerning the allegations. We determine whether the matter is civil, criminal, or parallel and evaluate potential professional consequences in addition to the FCA exposure.
Is the constitutional challenge to FCA whistleblower lawsuits over?
Not necessarily. Although the Eleventh Circuit rejected the Appointments Clause challenge in Zafirov, it remanded for consideration of the defendants’ separate Take Care Clause and Vesting Clause arguments.