The Eleventh Circuit Revives FCA Qui Tam Enforcement—but the Constitutional Fight Is Not Over

A constitutional challenge that threatened one of the Federal Government’s most important fraud-enforcement mechanisms has suffered a significant appellate setback.

On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit vacated the district court’s decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC. The lower court had concluded that the False Claims Act’s qui tam provisions violated the Constitution’s Appointments Clause because private whistleblowers who prosecute FCA actions on behalf of the United States function as “Officers of the United States” without constitutionally required appointment.

The Eleventh Circuit disagreed.

Under the False Claims Act, private individuals known as relators may bring fraud claims in the name of the United States. The Government may intervene and take control of the litigation or decline intervention and allow the relator to proceed. Successful FCA cases can result in treble damages and statutory penalties, while relators may receive a share of the recovery.

The constitutional question in Zafirov concerned whether a relator exercising this enforcement authority occupies a federal office that triggers the Appointments Clause.

The Eleventh Circuit concluded that relators do not. In its analysis, the court focused on a fundamental characteristic of a constitutional “officer”: the individual must occupy a continuing position established by law. A qui tam relator instead assumes responsibility for a particular lawsuit and does not occupy an ongoing governmental position. On that basis, the court held that FCA relators are not Officers of the United States and joined other federal appellate courts that have rejected Appointments Clause challenges to qui tam enforcement.

For government contractors, the immediate practical consequence is important. The district court’s 2024 ruling had opened the possibility that a constitutional challenge might substantially restrict privately prosecuted FCA cases. The Eleventh Circuit’s decision removes that theory—at least within the circuit—as a current basis for invalidating the FCA’s qui tam structure.

But the constitutional dispute is not finished.

The defendants also challenged qui tam enforcement under Article II’s Take Care Clause and Vesting Clause. The district court did not reach those arguments after deciding the case under the Appointments Clause. The Eleventh Circuit likewise declined to decide them and remanded the case for the district court to consider those remaining constitutional theories in the first instance.

That distinction matters. The appellate decision is significant, but it does not establish that every constitutional objection to private FCA enforcement has been resolved.

For contractors, however, compliance planning should proceed on a much more immediate assumption: qui tam enforcement remains very much alive.

The FCA’s operational risk arises long before constitutional litigation. Employees, former employees, subcontractors, competitors, and other knowledgeable individuals may identify suspected false claims, inaccurate certifications, defective pricing, cybersecurity failures, small-business misrepresentations, labor-charging issues, or noncompliance with material contract requirements.

The most effective defense remains preventive: credible internal reporting channels, prompt investigations, documented corrective action, reliable certifications, and management systems capable of identifying potentially material noncompliance before it becomes whistleblower litigation.

Zafirov remains an important constitutional case. But for contractors, its current message is decidedly practical: the qui tam mechanism has survived another major challenge, and FCA compliance remains an essential component of federal contract risk management.

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Disclaimer:
This article is provided for general informational and educational purposes only and does not constitute legal advice. False Claims Act liability and constitutional issues are highly fact-specific. Contractors facing potential FCA exposure, whistleblower allegations, government investigations, or disclosure questions should consult qualified legal counsel.