On September 1, 2026, the Eleventh Circuit decided U.S. ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, reversing what had been, for nearly two years, the only federal decision in the country to have struck down the False Claims Act's qui tam mechanism as unconstitutional. This piece is a follow-up to our earlier article on the district court's ruling and the appeal to come, and it confirms where the doctrine now stands in the Eleventh Circuit and where the constitutional challenge still has room to run.
What Happened
The district court, on a motion to dismiss in the Middle District of Florida, held in 2024 that the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733, violated the Appointments Clause of Article II. The theory was that a private relator who prosecutes an FCA action in the name of the United States exercises significant executive authority, and therefore must be an "officer of the United States" appointed by the President with Senate advice and consent (or by a department head under a valid inferior-officer designation). No FCA relator is appointed under Article II. If the theory holds, no FCA relator has authority to bring or maintain a qui tam action.
The Zafirov ruling was widely read as the most serious constitutional challenge to qui tam in the statute's modern history. Every other federal district court and every court of appeals to have considered the theory had rejected it. The Eleventh Circuit's disposition on September 1, 2026 puts the district court's ruling back into that lineup.
What the Court Held
The Eleventh Circuit reversed on the specific ground that FCA relators are not "officers of the United States" as that phrase is used in the Appointments Clause. The panel's reasoning tracks the traditional two-part inquiry that governs officer status: whether the position is a "continuing" one, and whether it is "established by Law." An FCA relator, in the panel's view, fails the first prong. A relator prosecutes a single action tied to specific alleged fraud. When the case ends, the relator's authority ends with it. That is not the kind of ongoing, tenured public office that the Appointments Clause was designed to regulate. The relator does not report to a superior, does not hold a designated seat in any executive structure, and does not carry authority that outlasts the litigation that gave rise to it.
The panel did not reach whether an FCA relator exercises "significant authority" of the sort officer status would otherwise require. The failure of the continuing-position prong made that analysis unnecessary.
Importantly, the panel also did not resolve the broader Article II theories that the defendants had raised below. The defendants had argued, in addition to the Appointments Clause point, that the qui tam mechanism violates the Vesting Clause of Article II (by placing executive power in a private relator rather than the President) and the Take Care Clause (by allowing a private relator to enforce federal law without meaningful executive supervision). The district court had not reached those arguments once it disposed of the case on Appointments Clause grounds. The Eleventh Circuit remanded so that the district court can now address them in the first instance.
That remand matters. The constitutional attack on FCA qui tam has not been extinguished. It has been narrowed to two theories the district court has not yet spoken to, either of which, if accepted on remand, could produce the same practical outcome the Appointments Clause theory would have produced. The path is longer and the terrain has shifted, but the challenge survives.
What Practitioners Should Take From It
- Declined qui tam actions remain viable in the Eleventh Circuit. The most immediate practical point: the Eleventh Circuit's disposition restores the status quo that predated the district court's 2024 ruling. Relators can bring and maintain declined qui tam actions in the Middle, Southern, and Northern Districts of Florida on the same footing as any other circuit. Cases that had been dismissed, stayed, or held in abeyance pending the appeal now have a settled answer on the Appointments Clause theory.
- The Vesting Clause and Take Care Clause theories are alive on remand. Defense counsel in declined qui tam actions should assume, for planning purposes, that these arguments will be revisited. Relators' counsel should be prepared to brief them if they are raised again in the trial court, and to distinguish the relator's role from the executive-branch prosecutorial function on which the Vesting and Take Care theories rely.
- The Eleventh Circuit has now spoken; other circuits have not changed direction. With the Eleventh Circuit's decision, every federal court of appeals to have addressed the Appointments Clause theory has rejected it. That does not preclude a future circuit split, but it does mean that a defendant hoping to reach the Supreme Court on the officer-status theory alone will need to develop a serious circuit conflict first.
- Continuing-position analysis is now the point of engagement. The Eleventh Circuit's reasoning turns on a specific feature of the Appointments Clause: the requirement that an officer occupy a continuing position established by law. Any future challenge that seeks to distinguish Zafirov will need to argue either that a specific relator's role is in fact continuing, or that the Supreme Court's Appointments Clause cases do not require a continuing position at all. Both arguments are difficult on current authority.
- Do not treat the Eleventh Circuit's ruling as immunity from constitutional exposure. On the remand posture, and given the district court's willingness to entertain aggressive Article II theories the first time around, healthcare-industry defendants and other frequent FCA targets in the Eleventh Circuit should assume that new constitutional arguments will surface in trial court motions. The current landscape is not an all-clear. It is an interim disposition on one theory while related theories continue to develop.
For any client facing a pending declined qui tam action, the practical result of Zafirov's reversal is simple: the case proceeds. For any client with a Middle District matter that had been paused pending the Eleventh Circuit's decision, the pause should end. And for counsel on either side of an FCA case that involves difficult constitutional issues, the remand should be watched. The district court's second look at the Vesting Clause and Take Care Clause theories will shape the next phase of this fight, and it is likely to shape it beyond the Eleventh Circuit as well.