October 7, 2026
By: Edgar Bueno & Luckshume Ketheeswaran, as published by The National Law Review
Last month, the Eleventh Circuit held that the False Claims Act’s (FCA) qui tam provisions do not violate the Appointments Clause of the U.S. Constitution, allowing private citizens to continue to sue entities on behalf of the United States for allegedly defrauding the federal government. The case, United States v. Fla. Med. Assocs., LLC,1 vacated and reversed the underlying district court decision, United States ex rel. Zafirov v. Florida Medical Associates LLC.2
The FCA has been the Federal government’s key enforcement tool in its fight against fraud, waste, and abuse involving government programs. The FCA provides for significant recoveries to the government in the form of treble damages and monetary penalties for each false claim. Relators who bring actions on the government’s behalf can receive up to 30% of the proceeds that are received as a result of pursuing an FCA action.
The District Court Case – United States ex rel. Zafirov v. Florida Medical Associates LLC (Sept. 30, 2024)
In Zafirov, the relator, Dr. Clarissa Zafirov, sued the defendants under the FCA for misrepresenting patients’ medical conditions to Medicare. After investigating these allegations, the government declined to intervene. However, the relator proceeded to litigate the case for five more years. Apart from filing two statements of interest, the government chose not to participate, allowing the relator to drive the litigation.
Following the two-part test set in Lucia v. SEC, the district court found, in part, that relators were “officers of the United States” and were improperly appointed, despite the significant executive authority they wield in FCA actions.
This district court decision marked the first time FCA whistleblower provisions have been ruled unconstitutional. However, the case also followed an increasing trend of constitutional challenges against FCA qui tam provisions, which arose from Justice Clarence Thomas’s dissent in United States ex rel. Polansky, where he questioned the constitutionality of qui tam provisions and their inconsistencies with Article II.
The Eleventh Circuit Decision – United States v. Fla. Med. Assocs., LLC (Sept. 1, 2026)
The Eleventh Circuit reversed and did not find that relators were “officers of the United States.” Although the Court focused only on one prong of the Lucia test discussed by the district court, it deemed its analysis sufficient to find that relators did not hold a “continuing position,” and thus were not “officers” covered by Article II.
The Court looked to four factors: tenure, duration, emolument, and duties.
- Tenure & Duration: The Court reviewed these two factors together. A relator’s tenure is occasional and temporary. It lasts only the length of one case; a relator may bring multiple cases in a year or none; and relators are not required to keep a place of business.
A relator’s intermittent, nonpermanent tenure tends to show that she does not hold a continuing position.
- Emolument: A relator’s compensation (a) is a one-time award contingent on the success of her case; (b) is through a portion of the judgment, if any, not through any regular appropriation; (c) is based on work done on an intermittent basis (whenever she has a claim to pursue and the litigation is active); and (d) incurs no penalty for a refusal to perform except for the loss of her opportunity to receive a contingent fee for succeeding in a given case.
- Duties: A relator’s role is personal, and she cannot be replaced except for very limited circumstances. The Eleventh Circuit also rejected defendants’ argument that the FCA created an “office of relator” that is continuous, regardless of the status of any one case, since various private parties can become relators and occupy the office of relator at any time. The Court emphasized that neither the FCA statute nor legal precedent supported this interpretation.
Based on its analysis of these factors, the Eleventh Circuit determined that relators do not hold a continuing position and are not “officers of the United States.” As such, relators do not have to be presidentially appointed. Further, the Court vacated the underlying district court’s dismissal and remanded the case for further proceedings, including consideration of other important constitutional arguments made by the defendants. Those arguments will be addressed in future rulings.
Considerations in Light of Continued FCA Enforcement by Whistleblowers
Unfortunately for entities that may face FCA exposure, a relator still maintains her power to bring qui tam actions. Although the Eleventh Circuit’s ruling was limited to the applicability of the Appointments Clause, it is uncertain at this point what theories, outside of merit-based arguments, are available for defendants. Challenges will necessarily depend on the facts and circumstances and under what theories the case was filed.
Recently and seemingly in step with the Eleventh Circuit’s decision in Zafirov, the Department of Justice (DOJ) reaffirmed its commitment to aggressively enforce the FCA. On September 18, the DOJ announced revisions to its DOJ Manual, emphasizing its goal to shift DOJ resources in order to strengthen and prioritize FCA enforcement efforts.
The revised DOJ Manual also instructed its attorneys to assess on a case-by-case basis whether seeking dismissal of a filed qui tam action would serve the federal government’s interest. This could result in DOJ being more proactive in seeking to dismiss qui tam actions, particularly where the DOJ has declined to intervene.
In light of Zafirov and the government’s commitment to pursuing FCA claims, preventative measures are the most effective strategies when defending against FCA claims. Companies doing business with the federal government should not wait until qui tam suits are filed before testing the reliability of their compliance policies and procedures and whistleblower protocols. Entities should consider the following steps:
- Strengthen compliance policies and procedures;
- Institute appropriate protocols to respond to whistleblowers;
- Mandate FCA compliance training and education; and
- Ensure appropriate and prompt procedures are in place to respond to FCA enforcement actions and investigations.
Endnotes
1. United States v. Fla. Med. Assocs., LLC, No. 24-13581, 2026 WL 2581886 (11th Cir. Sept. 1, 2026).
2. United States ex rel. Zafirov v. Florida Medical Associates LLC, No. 19-1236 (M.D. Fla. Sept. 30, 2024).
