Key Takeaways
- 11th Circuit upholds FCA qui tam provision against constitutional challenge.
- Decision aligns with every federal appellate court to address the issue.
- Additional constitutional challenges remain.
On Tuesday, Sept. 1, in United States ex rel. Zafirov v. Florida Medical Associates, LLC et al., a panel of the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to the False Claims Act’s (FCA) qui tam provision. The court specifically held that the provision – which permits private parties (or relators) to pursue claims under the FCA on behalf of the government – does not violate Article II’s Appointments Clause. Namely, the court held that relators are not “Officers of the United States” because they do not occupy a continuing position established by law. In reaching this conclusion, the court emphasized that a relator’s role is temporary and limited to a particular case, a relator does not receive a “continuing emolument” and a relator’s duties are personal and cannot be assumed by another relator. On appeal was a first-of-its-kind decision by Judge Kathryn Mizelle of the U.S. District Court for the Middle District of Florida, which furthered decades of constitutional challenges to the FCA’s qui tam provision. However, since Mizelle’s decision, no other court had followed her lead, with many expressly rejecting it. By reversing, the Eleventh Circuit aligns itself with every other U.S. Court of Appeals to have addressed the issue, including the Fifth Circuit (en banc) as well as the Sixth, Ninth and Tenth circuits.
The Eleventh Circuit’s decision comes while the Third Circuit also considers the constitutionality of the FCA’s qui tam provision in U.S. ex rel. Penelow v. Janssen Products, LP. There, the defendants raised the constitutional issue in their posttrial briefing before Judge Zahid Quraishi of the U.S. District Court for the District of New Jersey. No. 12-cv-7758, 2025 WL 937504, at *12 (D.N.J. Mar. 28, 2025). In rejecting the defendants’ argument, the court gave the issue short shrift and, in reference to the Zafirov district court decision, declined to follow what it described as a “singular non-precedential and out-of-circuit decision, and instead follow[] every federal circuit court of appeals that has addressed this issue and hold[] that the FCA’s qui tam provisions are constitutional.” Id. On appeal before the Third Circuit, oral argument was held on March 18, and a decision is forthcoming.
What’s next?
Because the district court relied solely on the Appointments Clause to find the FCA’s qui tam provision unconstitutional, the Eleventh Circuit vacated and remanded for the district court to address the defendants’ constitutional challenges under the Take Care Clause and the Vesting Clause.
Broadly speaking, absent traction at the U.S. Court of Appeals level, future challenges to the constitutionality of the FCA’s qui tam provision will continue to face obstacles. And in the Eleventh Circuit specifically, which includes the Middle District of Florida and other top venues for FCA qui tam filings, it will be business as usual. Nonetheless, even absent a circuit split, comments by Justices Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett in the Polansky case from 2023 – that “the Court should consider the competing arguments on the Article II issue in an appropriate case” – indicate there may still be appetite on the Supreme Court to take up the issue. This is despite the Court’s recent denial of certiorari in U.S. ex rel. Streck v. Eli Lilly, where the constitutional challenge to the FCA’s qui tam provision was not raised until the defendant’s en banc request to the Seventh Circuit.
