This article is co-authored by partner Andrew Adelman and JGL law clerk Sherise Tracey.
On September 1, 2026, the Eleventh Circuit in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC upheld the constitutionality of the provision in the False Claims Act (FCA) that allows individuals to bring claims against entities that perpetuate government fraud. Specifically, the court analyzed the qui tam provisions of the FCA, which allow individuals (called “relators”) to bring claims on their own behalf and on behalf of the government against entities that fraudulently request and use federal funds. The court held that relators are not officers in the constitutional sense and thus do not require Presidential appointment. The Eleventh Circuit – which covers Alabama, Florida, and Georgia – joins the appellate courts from the Fifth, Sixth, Ninth, and Tenth Circuits in upholding the constitutionality of this important law.
The Court’s Decision
Dr. Clarissa Zafirov alleged that her employer and related entities engaged in Medicare fraud by submitting false diagnosis codes to the government to receive more money than they would have otherwise been entitled. She initiated a claim under the qui tam provision of the FCA. In response, defendants challenged the constitutionality of the FCA, arguing that the qui tam provisions violated the Appointments Clause of the Constitution, which requires the President to nominate officers that sit in continuing positions and exercise significant authority. The defendants argued, and the district court agreed, that relators are such officers and, because they are not Presidentially appointed, violate the Appointments Clause.
The Eleventh Circuit reversed, holding that relators are not officers because they do not hold continuing positions. Analyzing the relevant factors, the court held that FCA relators do not have continuing positions because their tenure is temporary, there is no continuing emolument, and their duties are personal. A relator’s tenure is not permanent or pre-determined, but rather “intermittent” and “nonpermanent” because the length of the cases fluctuate. Emolument refers to the profit or gain received because of one’s employment or holding of office; because a relator’s payment occurs only once, depends on the success of the case, and there is no penalty for refusal to perform, there is no continuing emolument. Finally, while an officer’s duties must be continuous in accordance with the Appointments Clause, a relator’s duties are relative to them and cannot be assumed by another person. Ultimately, because a relator’s role does not qualify them as having a continuing position, they are not officers within the meaning of the Appointments Clause. Therefore, the qui tam provisions allowing relators to bring FCA lawsuits on behalf of the government do not violate that constitutional provision.
Protecting Government Funds & Preventing Government Fraud
The qui tam provisions of the FCA provide important protections for public services and funds. When a recipient of government funds fraudulently requests federal money, public funds are rerouted from communities that need them and service providers that will effectively and appropriately use them. The impact extends to healthcare facilities, higher education, small businesses, procurement, and beyond.
The Eleventh Circuit’s decision ensures that the numerous benefits of the current process remain intact:
- Personal Knowledge: Relators have personal, intimate knowledge of the fraud being committed. Allowing these relators to pursue a qui tam claim ensures that this knowledge is shared directly with the government in a timely fashion.
- Discretion: Relators can submit a claim at any time, without tipping off the perpetrator. The discretion preserved by the qui tam provisions decreases the likelihood that the perpetrator could tamper with information.
- Limited Government Resources: With an abundance of government fraud and limited government resources to tackle it, qui tam provisions allow the federal government to set priorities about certain abuses while allowing relators to pursue cases that it declines to intervene in.
Implications for Future Whistleblower Litigation
The Eleventh Circuit limited its holding to the Appointments Clause and remanded the case for the district court to address the defendants’ arguments that the qui tam provisions violate other Constitutional provisions. For now, the FCA’s constitutionality is affirmed, and whistleblowers can continue to ensure accountability for the public.
