Eleventh Circuit Rejects Appointments Clause Challenge to the FCA’s Qui Tam Provisions in Zafirov

By Allison Cook

For nearly two years, many defendants in qui tam cases argued for dismissal based on a single federal district court’s holding that the qui tam provisions of the False Claims Act are unconstitutional. See United States ex rel. Zafirov v. Florida Medical Associates, LLC. In that case, a federal district court in Florida held that False Claims Act relators, private whistleblowers who bring cases on behalf of the government, are “Officers of the United States” who must be appointed under Article II. On September 1, 2026, the Eleventh Circuit rejected that conclusion, vacated the dismissal, and sent the case back to the district court.

The panel held that relators are not federal officers because they do not occupy a continuing position established by law. Instead, their role is tied to the particular case they bring. As the court explained, “a relator’s tenure is occasional and temporary because it lasts the length of one case.” Relators also receive a share of a successful recovery rather than continuing government compensation. Because the court found that relators do not hold a continuing federal position, it did not need to decide whether they exercise the type of significant government authority that could otherwise support officer status.

Importantly, Zafirov does not create a circuit split. The Eleventh Circuit expressly joined the Fifth, Sixth, Ninth, and Tenth Circuits, stating: “Accordingly, we join our sister circuits that have addressed this issue and hold that the qui tam provisions of the FCA do not violate the Appointments Clause.” That places Zafirov alongside earlier qui tam whistleblower rulings that reject the same constitutional theory, rather than breaking from existing appellate precedent.

For whistleblowers and relator-side practitioners, the ruling disposes of the only authority that previously supported defendants’ constitutionality challenges in qui tam litigation. The Eleventh Circuit, however, did not rule on the defendant’s argument that the qui tam provisions of the FCA violate the Take Care Clause and Vesting Clause because private relators exercise executive enforcement power without sufficient presidential control. On remand, the district court is expected to address the Take Care Clause and Vesting Clause arguments in the first instance. Reese Marketos is closely connected to how that larger issue develops. Together with Berger Montague, the firm secured a roughly $1.64 billion False Claims Act judgment in 2025 in a case brought by whistleblowers Jessica Penelow and Christine Brancaccio on behalf of the United States against Janssen Products, a Johnson & Johnson subsidiary. Janssen’s pending Third Circuit appeal also presents Article II challenges to the FCA’s qui tam framework.

Reese Marketos LLP represents whistleblowers in significant False Claims Act litigation, including cases that proceed through trial and appeal, and may be contacted regarding potential qui tam claims.

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