In a long-awaited decision, the Eleventh Circuit reversed the district court in Zafirov and found the False Claims Act’s qui tam provisions do not violate the Appointments Clause. However, the court remanded for consideration of the defendants’ other constitutional arguments, and other cases challenging the constitutionality of qui tam are pending before the Third and Fifth Circuits.
In an anticipated decision, the Eleventh Circuit on September 1 reversed the Middle District of Florida’s holding in U.S. ex rel. Zafirov v. Florida Medical Associates, LLC, that the False Claims Act (FCA) qui tam provisions violate the Appointments Clause of Article II, and remanded to the district court for consideration of the defendants’ other challenges under the Take Care and Vesting Clauses.[1] The Eleventh Circuit’s decision not to address all of the constitutional arguments preserves the uncertainty created when Supreme Court Justices Thomas, Kavanaugh, and Barrett observed in 2023 that “there are substantial arguments that the qui tam device is inconsistent with Article II.”[2] Cases pending before the Third and Fifth Circuits[3] and the Zafirov remand may ultimately create an opportunity for the Supreme Court to fully and finally resolve the issue.
Zafirov: Eleventh Circuit reverses
The district court’s decision in Zafirov was the only decision invalidating the qui tam provision on constitutional grounds.[4] Adopting reasoning in Justice Thomas’s dissent in Polansky and a 1989 Office of Legal Counsel memo authored by then-Assistant Attorney General William Barr, the district court held that the FCA’s qui tam provisions violated the Appointments Clause because a relator is an “officer of the United States” who exercises “significant authority” and holds a “continuing position.”[5]
On appeal, a panel of the Eleventh Circuit held that the FCA qui tam mechanism does not violate the Appointments Clause.[6] The panel addressed only the “continuing position” prong,[7] which the government had stressed at oral argument, and did not reach the “significant authority” requirement, which the defendants had emphasized.[8]
The court concluded a relator does not hold a “continuing position” because
- a relator’s “tenure” is “intermittent, nonpermanent,” and confined to the length of a single case;[9]
- a relator’s qui tam recovery is not a “continuing emolument;”[10] and
- the relator’s position is a personal role because even in cases involving death or bankruptcy, a “personal representative or trustee” continues the case on behalf of the relator.[11]
On that basis, the panel determined that “relators are not officers of the United States subject to the Appointments Clause.”[12] The court vacated the district court’s order of dismissal, and remanded “for the district court to evaluate the defendants’ Take Care Clause and Vesting Clause arguments.”[13]
Two challenges remain pending
The constitutionality of the FCA’s qui tam provision is also before the Third and Fifth Circuits, respectively, in U.S. ex rel. Penelow v. Janssen Products, LP,[14] and U.S. ex rel. Taylor v. Healthcare Associates of Texas.[15] Both defendants’ briefs focused primarily on failures of proof at trial, but both raised and preserved constitutional challenges under the Appointments, Take Care, and Vesting Clauses.
In Penelow, a District of New Jersey jury found for relators on FCA and Anti-Kickback Statute claims involving alleged kickbacks and off-label promotions of HIV/AIDS drugs. The district court rejected the defendant’s constitutional challenge to the qui tam provisions, declining to follow “the singular non-precedential and out-of-circuit court decision” in Zafirov and adopting the position of “every federal circuit court of appeals that has addressed this issue.”[16] The parties argued the case in March 2026, but the court subsequently referred it for mediation, so a decision is not imminent.
In Taylor, a Northern District of Texas jury found the defendant medical practice liable under the FCA for fraudulent Medicare billing.[17] The defendant devoted a portion of its appellate briefs to challenging the constitutionality of the qui tam mechanism and focused particularly on arguments involving the Vesting and Take Care Clauses.[18] Although the Fifth Circuit previously held in a 2001 en banc decision that qui tam cases do not violate the Appointments or Take Care Clauses, two members of the Fifth Circuit have recently expressed doubts about that decision.[19] The DOJ has intervened in the case for purposes of defending qui tam’s constitutionality.[20] The court has not yet decided whether to grant oral argument.
* * *
Now that the Eleventh Circuit has reversed the district court in Zafirov, the immediate possibility of a circuit split on the constitutionality of FCA qui tam has not materialized. Nevertheless, pending cases in the Third and Fifth Circuits, and the potential return of Zafirov to the Eleventh Circuit, could still alter the landscape. Dinsmore will continue to monitor the cases and report on significant developments.
[1] No. 24-13581, 2026 U.S. App LEXIS 26923 (11th Cir. Sept. 1, 2026); see also U.S. ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024).
[2] U.S. ex rel. Polansky v. Executive Health Resources, Inc.,599 U.S. 419, 442 (2023) (Kavanaugh, J. and Barrett, J., concurring, quoting Thomas, J., dissenting). In 2025, Justices Kavanaugh and Thomas reiterated their view that the “qui tam provisions raise substantial constitutional questions under Article II.” Wisconsin Bell., Inc. v. U.S. ex rel. Heath, 604 U.S. 140, 167 (2025) (Kavanaugh, J., concurring, joined by Thomas, J.). Nevertheless, the Supreme Court declined to take up the issue earlier this year. See No. 25-1126, 2026 U.S. LEXIS 2108 (May 18, 2026) (declining to review U.S. ex rel. Streck v. Eli Lilly & Co., 152 F.4th 816 (7th Cir. 2025)).
[3] See U.S. ex rel. Penelow v. Janssen Prods., LP, Civ. No. 12-7758 (ZNQ), 2025 U.S. Dist. LEXIS 58463 (D.N.J. Mar. 28, 2025) (unpublished), appeal docketed, No. 25-1818 (3rd Cir. Apr. 29, 2025); U.S. ex rel. Taylor v. Healthcare Assocs. of Tex., LLC, No. 3:19-CV-02486-N, 2025 LEXIS 129125 (N.D. Tex. July 8, 2025), appeal docketed,No. 25-10842 (5th Cir. July 21, 2025).
[4] 751 F. Supp. 3d 1293 (M.D. Fla. 2024).
[5] Id. at 1307; id. at 1324 (citing, inter alia, Polansky,599 U.S. at 449-52 (Thomas, J., dissenting) and William P. Barr, Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. 207 (1989), https://www.justice.gov/file/24271/download). The court relied on the two-prong test articulated in Lucia v. SEC, 585 U.S. 237, 245 (2018) (citing United States v. Germaine, 99 U.S. 508, 511 (1879)). The defendants also made Take Care Clause and Vesting Clause arguments, but the district court’s decision was based squarely on its reading of the Appointments Clause. However, the court’s Appointments Clause reasoning was partially tied to its reading of the Take Care Clause. See, e.g., 751 F. Supp. 3d at 1307–08 (citing Buckley v. Valeo, 424 U.S. 1, 138 (1976)) (noting that where a government position exercises civil “enforcement power, exemplified by its discretionary power to seek judicial relief,” the Take Care Clause is implicated, and that those carrying out responsibilities pursuant to that clause “must be subject to the Appointments Clause”).
[6] 2026 U.S. App LEXIS 26923, at *7–8.
[7] Id. at *8.
[8] Zafirov, 11th Cir., No. 24-13581, Oral Argument (Dec. 12, 2022), www.tinyurl.com/Zafirov-11thCir-OA, at 9:00. Defendants, in contrast, placed great emphasis on “significant authority,” arguing that relators are “self-appointed, unaccountable bounty hunters” exercising “quintessentially executive functions.” Id. at 35:20, 38:25. The echo of the 1989 Barr memo is clear. Relator’s counsel also focused on “significant authority,” arguing relators don’t wield it because they cannot marshal government resources or “compel the government . . . to do anything.” Id., at 10:47.
[9] 2026 U.S. App LEXIS 26923, at *14–15; id. (citing, inter alia, Germaine, 99 U.S. at 511–12) (finding relator role analogous to that of surgeon in Germaine appointed by Commissioner of Pension to examine pension applicants, who did not have permanent tenure because acted only occasionally, as needed). The court recognized that the relator role may continue for years but found that such duration does not render the relator’s position “continuing.” Id. at *15–17 (citing Germaine, 99 U.S. at 512).
[10] Id. at *17–18 (likening relator’s share of recovery in a successful FCA case to, inter alia, contingent nature of surgeon’s receipt of per-examination fee in Germaine).
[11] Id. at *18–19; see id. at *19 (emphasizing that the “personal representative or trustee” who carries on an FCA case on a relator’s behalf in the event of death or bankruptcy is not a new relator).
[12] Id. at *23.
[13] Id.
[14] No. 25-1818 (3rd Cir.).
[15] No. 25-10842 (5th Cir.).
[16] Penelow, 2025 LEXIS 58463, at *35–36 (citing, inter alia, U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787 (10th Cir. 2002); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (en banc)). The opinion contained no reference to Justice Thomas’s dissent or Justice Kavanaugh’s concurrence in Riley, or to the Kavanaugh concurrence in Heath.
[17] Def.-Appellant’s Opening Br. (5th Cir. No. 25-10842), DE 68 (Jan. 20, 2026), at 1–2.
[18] Id. at 17–18. The defendant-appellant also asks that, if the panel concludes the case is controlled by Riley, the panel poll the entire Fifth Circuit to hear the issue en banc. Id. at 19.
[19] See Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (en banc); U.S. ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395, 412 (5th Cir. 2025) (Duncan, J., concurring); U.S. ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, L.L.C., 157 F.4th 758, 766 (5th Cir. 2025) (Ho, J., concurring).
[20] Intervenor-Appellee’s Br. of U.S., DE 91.