On September 1, 2026, the Eleventh Circuit rejected a prominent constitutional challenge to the False Claims Act's qui tam provisions. The theory holds that a private relator who exercises executive power without being appointed under the Appointments Clause makes the entire mechanism unconstitutional. The ruling vacates a 2024 district court decision that had dismissed the underlying case on exactly that ground. For healthcare providers and the compliance officers who answer for them, the question of who may sue on the government's behalf in a False Claims Act case remains legally contested, just not on the theory the district court accepted.
The Appointments Clause Theory Behind the Challenge
Article II's Appointments Clause requires that anyone who occupies a continuing position established by law and exercises significant federal authority be appointed as an Officer of the United States. Defendants have pressed versions of this argument for decades, contending that a qui tam relator functions like an officer once a case is filed and controls the litigation without ever being appointed. That argument traces to Justice Thomas's dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), and to the concurrence by Justices Kavanaugh and Barrett calling the Article II arguments substantial and inviting the Court to take up the question in an appropriate case.
Zafirov's Path From Dismissal to Remand
United States ex rel. Zafirov v. Florida Medical Associates, LLC began in 2019 as a relator's allegation that her employer, doing business as VIPcare, and related entities knowingly submitted false diagnosis codes to inflate Medicare payments. In 2024, the U.S. District Court for the Middle District of Florida dismissed the case, holding that qui tam relators are officers of the United States who must be presidentially appointed and that, because Zafirov was not, the qui tam provisions violate the Appointments Clause. It was the first ruling of its kind. On September 1, 2026, a panel of the Eleventh Circuit unanimously disagreed.
We disagree and hold that relators are not officers of the United States because they do not occupy a continuing position established by law.
What the Eleventh Circuit Left Unresolved
The panel vacated the dismissal and remanded, directing the district court to evaluate the defendants' remaining constitutional arguments, whether the qui tam provisions also violate the Take Care Clause and the Vesting Clause of Article II, questions the district court did not reach the first time. The opinion also puts the Eleventh Circuit alongside the Fifth, Sixth, Ninth, and Tenth Circuits, each of which has already rejected an Appointments Clause challenge to the qui tam provisions, so there is currently no circuit split for the Supreme Court to resolve on that specific question. As of November 1, 2026, Zafirov remains on remand before the district court.
The Practical Effect on Qui Tam Defense Strategy
Losing the Appointments Clause argument in the Eleventh Circuit does not retire the broader constitutional attack on qui tam. Defendants in healthcare False Claims Act cases continue to raise Article II challenges, including the Take Care Clause and Vesting Clause theories still pending on remand in Zafirov, and the Kavanaugh and Barrett concurrence in Polansky remains an open invitation for the Supreme Court to take up the underlying question in a future case. For a compliance officer, the practical effect is that a relator-driven case can draw out longer on a constitutional track that runs separate from the underlying billing allegations, which affects litigation cost and timeline even where the merits defense is strong.
Why Early Legal Counsel Is Critical
It is critical that a healthcare provider or compliance officer promptly retain experienced healthcare defense counsel upon receiving a qui tam complaint, a civil investigative demand, or notice of a related False Claims Act investigation. Early legal intervention can protect the provider's rights, preserve available defenses, including constitutional arguments, avoid inadvertent admissions, and allow counsel to communicate with the government and the relator's counsel on the provider's behalf. Delaying representation can affect the outcome of a matter.
How Health Law Alliance Can Help
Health Law Alliance represents pharmacies, physicians, and healthcare companies in False Claims Act defense matters, from the first qui tam complaint through the government's intervention decision, discovery, and any constitutional or merits-based motion to dismiss.
Health Law Alliance's attorneys have overseen 2,000+ audits and handled 5,000+ matters, with 25+ years of experience.
If your organization has been named in a qui tam lawsuit or received notice of a related False Claims Act investigation, contact Health Law Alliance's False Claims Act defense team for a free, confidential consultation.
