Tick Tock – The Wait Is Over: Eleventh Circuit Upholds FCA Qui Tam Constitutionality

As discussed in a previous Holland & Knight alert, the constitutionality of the FCA's qui tam provisions has come under increasing scrutiny in recent years. Three U.S. Supreme Court justices – Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett – had raised concerns about whether the provisions violate Article II of the U.S. Constitution and urged the Court to consider the issue. A single judge at the U.S. District Court for the Middle District of Florida has ruled (twice) that the qui tam provisions are unconstitutional, reasoning that relators are "officers" whose self-appointment through filing qui tam actions violates the Appointments Clause.

The appeal to the U.S. Court of Appeals for the Eleventh Circuit in U.S. ex rel. Zafirov v. Florida Medical Associates LLC was widely regarded as the most significant pending proceeding on the issue because it was the first and only appellate case on appeal squarely addressing the question of whether the qui tam provisions violate Article II.

On September 1, 2026, the Eleventh Circuit held that they do not.

The Eleventh Circuit's Decision

In a published opinion authored by Eleventh Circuit Judges Elizabeth Branch and Robert Luck, joined by Senior U.S. District Court Judge Federico Moreno, the Eleventh Circuit reversed the district court and held that the FCA's qui tam provisions do not violate the Appointments Clause.

The Core Holding: Relators Are Not "Officers of the United States"

The court's analysis centered on the two-part test for determining whether someone is an "officer of the United States," which requires that the person must both 1) "occupy a 'continuing' position established by law" and 2) "exercise significant authority pursuant to the laws of the United States." The Eleventh Circuit concluded that relators fail the first prong – they do not occupy a continuing position – and, therefore, are not officers subject to the Appointments Clause. Because this was dispositive, the court did not reach the question of whether relators exercise "significant authority."

Why Relators Do Not Occupy a "Continuing Position"

The court evaluated the characteristics that the Supreme Court has historically used to assess whether a position is "continuing" and found that relators fall short on every measure:

• Temporary Tenure. A relator's role lasts 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.
• No Continuing Duration. The court rejected the defendants' argument that lengthy FCA cases demonstrates relators hold continuing positions, noting that the Supreme Court has never focused on the overall length of time a person spends fulfilling duties. Rather, the inquiry is whether the role is "permanent" or "occasional and intermittent."
• No Continuing Emolument. A relator receives only a one-time contingent fee award based on the success of the case, not a regular government appropriation or salary.
• Personal Duties. A relator's role is personal and cannot be assumed by another individual.

Rejection of the "Office of Relator" Theory

The court also rejected the defendants' argument – and the district court's finding – that the FCA created a continuous "office of relator" that exists regardless of the status of any one case. The Eleventh Circuit noted that the term "office of relator" appears nowhere in the FCA or any other law and that the proper inquiry under Supreme Court precedent is whether an individual occupies a continuing position, not whether a theoretical office exists.

Remand on Remaining Constitutional Arguments

Having resolved the Appointments Clause issue, the court vacated the district court's dismissal order and remanded the case for the district court to evaluate the defendants' remaining constitutional arguments under the Take Care Clause and Vesting Clause. Those arguments – that qui tam actions improperly vest executive power in private individuals and circumvent the president's duty to "take care" that the laws be faithfully executed – remain live issues for the district court on remand. The defendants have 45 days from the entry of judgment (until October 16, 2026) to move for a panel or en banc rehearing, or 90 days (until November 30, 2026) to petition the U.S. Supreme Court for a writ of certiorari.

What This Means: The Immediate Landscape 

As anticipated in Holland & Knight's previous alert, reversal of the district court's ruling means that the immediate practical effect is limited – qui tam enforcement will continue as it has for decades. The Eleventh Circuit's decision reinforces the existing consensus among the Fifth, Sixth, Ninth and Tenth Circuit Courts of Appeals that the qui tam provisions are constitutional. Healthcare organizations, which remain the most frequent targets of FCA qui tam actions along with government contractors, should expect no disruption to the current enforcement regime.

The Debate Continues

This ruling does not close the book on constitutional challenges to the FCA's qui tam provisions:

• Take Care Clause and Vesting Clause Arguments Remain. The Eleventh Circuit addressed only the Appointments Clause and expressly remanded for the district court to consider the Take Care Clause and Vesting Clause arguments. These arguments – that qui tam relators improperly wield executive enforcement power without adequate presidential oversight – may provide a separate basis for challenging the provisions.
• Other Circuits Remain Active. As noted in the previous alert, the constitutionality question is actively being considered in the Third and Fifth Circuits. A divergent ruling from another circuit could still create the circuit split that would fast-track Supreme Court review.
• Supreme Court Interest Persists. Given the expressed interest from three Supreme Court justices and likelihood of additional petitions for certiorari as the law develops, the issue may ultimately be resolved by the Supreme Court.

Key Takeaways for Healthcare Entities and Government Contractors

1. FCA Qui Tam Exposure Remains Unchanged: Healthcare entities and government contractors should continue to maintain robust compliance programs, conduct regular audits and be prepared to defend against qui tam actions.
2. Monitor the Remand: The district court's consideration of the Take Care Clause and Vesting Clause arguments on remand could produce new legal developments.
3. Watch for Developments in Other Circuits: Additional appellate rulings on the constitutionality question could shift the landscape and increase the likelihood of Supreme Court review.
4. Evaluate Existing Litigation Strategy: Defendants in pending FCA qui tam cases who had been considering constitutional challenges based on the Appointments Clause should reassess their litigation strategy in light of this ruling, particularly in the Eleventh Circuit. That said, Take Care Clause and Vesting Clause arguments may still have viability depending on the jurisdiction and the specific facts of each case.

Holland & Knight will continue to monitor this evolving area of law and provide updates as significant developments occur. For guidance on how this ruling may affect your organization's compliance program or pending litigation, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.