One Challenge Down, Others Remain: The Eleventh Circuit’s Zafirov Decision

After nearly two years of waiting, the Eleventh Circuit issued its ruling in United States ex rel. Zafirov v. Florida Medical Associates on September 1, 2026.  The case first became noteworthy in 2024, particularly for those in the health care and qui tam space, because it saw a federal district court declare the False Claims Act’s (FCA) qui tam device unconstitutional.

The False Claims Act (FCA) prohibits submitting fraudulent claims for payment to the United States. Although the government may prosecute such violations in its own right, it also authorizes a “relator” to prosecute these claims on the government’s behalf through a “qui tam” lawsuit.  In exchange for their service, the relator is given an “award,” i.e., a percentage of whatever is recovered.  Although qui tam suits can arise in any industry that does business with the government, health care fraud remains the leading source of FCA settlements and judgments: of the $6.8 billion recovered under the FCA in 2025, more than $5.7 billion related to matters involving the health care industry.   

Zafirov concerned a qui tam suit alleging that the defendant health care providers and related entities knowingly submitted false diagnosis codes to Medicare to receive greater reimbursements than they were owed. After years of litigation, the defendants moved for judgment on the pleadings or dismissal, arguing that the FCA’s qui tam provision violated Article II of the Constitution.

The district court agreed, holding that the FCA’s qui tam provision violates Article II’s Appointments Clause, which empowers the President, “by and with the Advice and Consent of the Senate,” to appoint “Officers of the United States.”  According to the District Court, qui tam relators are such “Officers of the United States,” but are not appointed by the President with the Senate’s advice and consent.

The Decision

The Eleventh Circuit reversed, finding that relators are not “officers of the United States,” and thus need not be “appointed” as set out in the Appointments Clause.  This is because relators do not occupy a “continuing position,” which, according to the Court, is required under the Supreme Court’s SEC v. Lucia decision.  Lucia laid out two “requirement[s]” to be an officer of the United States: first, one must “occupy a ‘continuing’ position established by law” and second, that person must “exercise significant authority pursuant to the laws of the United States.”

Read more about the decision and analysis from our Appellate Law Blog.