O'Neill Institute | September 18, 2026
On September 1, 2026, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit upheld the constitutionality of the federal False Claims Act’s whistleblower (qui tam) provision. The appellate court’s opinion in United States ex rel. Zafirov v. Florida Medical Associates, LLC et al. reversed a first-of-its-kind district court opinion that held that the whistleblower provision violated the Appointments Clause, which requires officers of the U.S. to be appointed by the President. Joining the four other appellate courts that have now considered this issue, the Eleventh Circuit concluded that whistleblowers are not officers and thus the provision does not violate the Constitution.
The Eleventh Circuit’s decision preserves one of the federal government’s most important tools for combatting health care fraud, enabling whistleblowers to continue to file lawsuits to hold bad actors accountable and deter fraud. From here, the defendants could choose to resume litigation before the district court or appeal to the full panel of judges on the Eleventh Circuit or the Supreme Court, where at least some justices have questioned the constitutionality of the FCA’s whistleblower statute.
Brief Background On The False Claims Act
In response to a spate of defense contractor fraud during the Civil War, President Abraham Lincoln signed the False Claims Act (FCA) into law in 1863. The FCA authorizes the federal government to recover damages against anyone who knowingly submits a false claim for payment or approval. The law has proven remarkably effective at countering fraud, with more than $85 billion recovered since 1986. Although the law is not specific to health care, the FCA is the government’s primary tool to combat health care fraud. For instance, more than $5.7 billion of the total $6.8 billion recovered under the FCA in fiscal year 2025 involved the health care industry. And the FCA has been used to protect patients and deter fraud by, for instance, exposing practices that endanger patients, curbing unnecessary medical treatments, and reducing wasteful spending.
While the federal government is primarily responsible for investigating fraud under the FCA, the government’s resources are necessarily limited, and fraudulent actors have a strong incentive to avoid detection. This means that, as a practical matter, the government cannot detect every instance of fraud. Congress understood this challenge, and empowered whistleblowers to file lawsuits (referred to as “qui tam” lawsuits) on behalf of the government. Qui tam lawsuits account for a significant portion of FCA claims and recovery each year: for fiscal year 2025 alone, a record number of qui tam lawsuits helped federal officials recover more than $5.3 billion. With respect to health care fraud, whistleblowers typically include senior executives, pharmacy managers, doctors, sales representatives, or other industry insiders with knowledge of allegedly improper activity.
When a whistleblower (also referred to as a “relator”) pursues a qui tam lawsuit, they first file a complaint under seal with the court and notify the government. The Department of Justice then has 60 days to either intervene or allow the relator to proceed on their own. Notwithstanding that initial 60-day period, the government can intervene in the lawsuit later and assume full control of the case without the relator’s consent, including to dismiss the lawsuit.
Whistleblowers can face significant reputational and financial risks in pursuing qui tam actions, so the law incentivizes meritorious claims. A successful FCA relator is entitled to a portion of the judgment (between 15 and 30 percent), as well as compensation for attorneys’ fees and other legal costs. In fiscal year 2025 alone, relators received more than $300 million from judgments and settlements in FCA lawsuits.
The Zafirov Lawsuit
Perhaps unsurprisingly, those who face whistleblower lawsuits under the FCA have great incentive to undermine the law, including challenging the constitutionality of qui tam actions. Until recently, however, federal courts have unanimously upheld qui tam lawsuits against constitutional challenges. The lone exception to this 160-year consensus arrived in 2024 when a federal district court in Florida ruled for defendants in United States ex rel. Zafirov v. Florida Medical Associates, LLC et al.
The Zafirov case began in 2019 when Dr. Clarissa Zafirov brought a qui tam action against her employer, a health care practice, alleging that the practice was systemically misrepresenting patient medical conditions to increase compensation under the Medicare program. In her complaint, Dr. Zafirov described a system in which patients were brought in for medically unnecessary office visits and physicians were presented with a checklist of “suggested diagnoses” prepared by a team of medical coders. These suggestions, Dr. Zafirov alleged, were not based on medical indication or an examination of the patient but were instead intended to maximize Medicare reimbursement. For example, the checklists encouraged physicians to diagnose Major Depressive Disorder for any patient who had ever taken an antidepressant medication, even where the diagnostic criteria for that condition were not met. In another egregious example, Dr. Zafirov received a checklist that included a suggested code for a traumatic amputation of a foot, when the patient had both feet.
The Department of Justice initially declined to intervene in Dr. Zafirov’s lawsuit, stating that it was not able to complete its investigation into the allegations within the court’s timeframe. The case proceeded, and the defendants argued that Dr. Zafirov was not legally authorized to bring the lawsuit on behalf of the United States, and that the qui tam provision violated the Appointments, Take Care, and Vesting Clauses of the Constitution. The Department of Justice then intervened to defend the constitutionality of the qui tam provision.
On September 30, 2024, more than five years since the lawsuit began, the district court agreed with the defendants that the qui tam provision of the FCA violates the Appointments Clause. The court did not reach the defendants’ arguments regarding the Take Care or Vesting Clauses.
Under the Appointments Clause, federal officers can be principal officers (who must be appointed by the President and confirmed by the Senate) or inferior officers (who may be appointed by the President, department heads, or the courts and do not require Senate confirmation). As the Supreme Court has explained, this two-track appointment system for principal and inferior officers, as opposed to mere government employees, applies to all officials who “exercise significant authority” under law and “occupy a continuing position.”
The district court held that FCA relators like Dr. Zafirov meet this latter standard. Why? Because relators exercise significant civil enforcement authority on behalf of the United States (through their ability to file lawsuits) and occupy a continuing position established by law, which the court labeled the “office of relator.” Accordingly, FCA relators are officers and subject to the Appointments Clause. Because Dr. Zafirov was not appointed by the President or any other federal official, the court dismissed the case.
Dr. Zafirov and the Department of Justice appealed to the Eleventh Circuit. They argued that whistleblowers do not exercise significant authority and are private citizens who do not occupy any government position, let alone a continuing one. As such, the Appointments Clause should not apply and Dr. Zafirov’s lawsuit should have been allowed to proceed.
Eleventh Circuit Upholds Constitutionality Of Whistleblower Statute
In a unanimous decision, a three-judge panel of the Eleventh Circuit reversed the district court’s decision and upheld the constitutionality of the FCA’s qui tam provision. The panel was comprised of Judges Elizabeth Branch and Robert Luck (both appointed by President Donald J. Trump) and Judge Frederico Moreno (a district court judge who heard this appellate case by designation and was appointed by President George H.W. Bush). Judge Branch wrote the decision on behalf of the panel.
In contrast to the district court, the Eleventh Circuit concluded that relators are not officers of the United States because they do not occupy a continuing position established by law. First, relators’ positions are not permanent. Relators rather assume a role that is occasional and intermittent—lasting only for the duration of the particular case they bring. Second, the duties of a relator are personal in nature and cannot be assumed by others (other than the Attorney General) in a way that would establish a continuing duty. Finally, the fact that a relator can recover part of an FCA judgment does not qualify as compensation. The court reasoned that a relator only receives a one-time payout upon the conclusion of a successful lawsuit and faces no penalty for refusing to bring the action. This is distinct from the salary that an officer of the U.S. earns.
Because relators serve in a temporary and occasional capacity and perform personal duties without receiving continuing compensation, they are not the officers of the United States under the Appointments Clause and thus need not be appointed by the President. Because the court concluded that FCA relators do not occupy a continuing position, it found it unnecessary to decide whether whistleblowers exercise significant authority under the Appointments Clause. Since the district court did not consider the Vesting or Take Care Clause arguments, the panel did not rule on those issues either. The district court will consider those theories on remand, should the defendants pursue them.
Looking Ahead
From here, the defendants could ask for rehearing before the Eleventh Circuit, either by the same panel of judges or the entire panel of judges sitting en banc. Or they could resume the litigation over the Vesting and Take Care Clause arguments before the district court. Alternatively, the defendants could seek review by the Supreme Court, where at least three justices—Justices Thomas, Kavanaugh, and Barrett—have raised doubts about the constitutionality of the qui tam provision. A Supreme Court petition would be due on November 30, 2026 absent a request for an extension from the Court.
It would not be the first time even this year that the Court has been asked to rule on the FCA’s constitutionality. In May 2026, the Court rejected a petition from Eli Lilly & Company which squarely asked the Court to address the constitutionality of the whistleblower provision. The Court may have rejected this specific petition because the Seventh Circuit found that Eli Lilly had waived its constitutional arguments. But FCA defendants, including potentially the defendants in Zafirov, are expected to continue to bring this issue to the Supreme Court.
Meanwhile, other cases challenging the constitutionality of the FCA’s qui tam provision are pending before two appellate courts. The Third Circuit held oral argument in March 2026 in United States ex rel. Penelow et al. v. Janssen Products L.P., where the defendant drug manufacturer pointed to the district court’s decision in Zafirov to argue that qui tam provisions are unconstitutional. And briefing is complete in United States ex rel. Taylor v. Healthcare Associates of Texas L.L.C., which is pending before the Fifth Circuit. The Fifth Circuit, sitting en banc, previously upheld the constitutionality of the FCA’s qui tam provision (as have the Sixth, Ninth, and Tenth Circuits). But two Fifth Circuit judges—Judges Stuart Kyle Duncan and James C. Ho—have suggested that the court should revisit that decision. The defendant in this case, Healthcare Associates of Texas, has argued that this case is an appropriate vehicle to do so.