The False Claims Act has survived wars, recessions, political mood swings, and more billing disputes than any sane person would volunteer to read. Now one of its most powerful featuresthe ability of private whistleblowers to sue in the name of the United Statesis facing a constitutional test in the Eleventh Circuit.

In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the court is considering whether a private relator may wield enough federal enforcement authority to qualify as an “Officer of the United States.” If the answer is yes, the next question is awkward: Who appointed that officer? Under the current qui tam system, the answer is essentially nobody. A private person files a complaint, and the statute supplies the authority.

The appeal does not merely concern one Medicare fraud lawsuit in Florida. It could reshape False Claims Act litigation throughout Alabama, Florida, and Georgia, create a major circuit split, and invite Supreme Court review. At stake are whistleblower incentives, corporate defense strategies, billions in recoveries, and a deceptively simple constitutional question: How much executive power may Congress place in private hands?

Why the Eleventh Circuit FCA Appeal Matters

The False Claims Act, commonly called the FCA, imposes civil liability on people and companies that knowingly submit false claims for federal money or improperly avoid obligations owed to the government. Potential exposure includes treble damages and statutory penalties, so this is not small-claims court with fancier stationery.

The law’s qui tam provision allows a private person, known as a relator, to bring an action for the relator and the United States. The complaint is initially filed under seal and provided to the Department of Justice. The government investigates and decides whether to intervene. If it intervenes, it assumes primary responsibility. If it declines, the relator may generally continue the case.

How the Public-Private Enforcement Model Works

A successful relator may receive between 15% and 30% of the recovery, depending largely on whether the government intervened and other statutory factors. The government retains important rights even after initially declining intervention. It may seek to intervene later for good cause, request limits on discovery, oppose a settlement, and, after intervention, seek dismissal over the relator’s objection.

That structure is the source of the constitutional fight. Supporters see a carefully supervised private action that helps the government discover fraud it might otherwise miss. Critics see a private prosecutor choosing defendants, claims, legal theories, discovery tactics, and appellate arguments in litigation brought in the sovereign’s name.

The Zafirov Case: From Medicare Allegations to Article II

Clarissa Zafirov, a Florida physician, filed her FCA case in 2019. She alleged that her former employer and related health care organizations submitted unsupported or inaccurate diagnosis codes for Medicare Advantage patients, causing the government to make inflated risk-adjustment payments. The defendants denied wrongdoing.

The Justice Department declined to take over the underlying fraud claims, leaving Zafirov to litigate the case. It later participated to defend the constitutionality of the FCA’s qui tam provisions. That distinction matters: declining intervention is not an endorsement of the defendant, a ruling on the merits, or a polite government euphemism for “nothing to see here.” It means the government chose not to assume primary control at that stage.

In September 2024, U.S. District Judge Kathryn Kimball Mizelle dismissed the action. She concluded that an FCA relator exercises significant federal authority in a continuing position and therefore functions as an officer under Article II. Because Zafirov had not been appointed by the President, a department head, or a court of law, the judge held that the arrangement violated the Appointments Clause.

The district court did not decide the defendants’ separate arguments under Article II’s Vesting Clause and Take Care Clause. Those theories contend that qui tam litigation improperly transfers executive enforcement power away from the President and leaves the Executive Branch without enough supervision or removal authority.

What the Eleventh Circuit Asked at Oral Argument

The Eleventh Circuit heard oral argument on December 12, 2025. The panel included Circuit Judges Elizabeth Branch and Robert Luck, along with U.S. District Judge Federico Moreno sitting by designation. The questioning focused less on catchy slogans and more on constitutional plumbing: authority, control, history, and remedies.

Is a Relator Really a Federal Officer?

The challengers argue that a relator exercises significant executive power by initiating litigation in the United States’ name, selecting targets, demanding discovery, negotiating resolutions, and potentially carrying the case through appeal. The position exists under federal law and can last for years. In their view, calling the relator a “private plaintiff” does not change the governmental character of the power being exercised.

Zafirov and the United States respond that a relator is not appointed to a federal office, does not hold a government title, receives no salary, lacks authority outside the individual case, and cannot bind the Executive Branch through policy commands. They describe the relator as a partial assignee of the government’s civil claima private litigant with statutory rights, not a freelance U.S. attorney who brought a badge from home.

Does the Government Retain Enough Control?

This may be the practical center of the case. The government can intervene, seek dismissal after intervention, object to settlements, obtain information, request stays of certain discovery, and ask courts to limit a relator’s participation. Defenders of the statute say those tools preserve executive control.

The opposing view is that control arriving after a private person has selected the defendant and filed a sovereign claim may be too little, too late. The government cannot always erase the costs, legal positions, or precedential consequences created before intervention. Critics also emphasize that a relator may continue despite the government’s initial choice not to proceed.

How Much Weight Should History Carry?

Qui tam litigation has deep roots. Comparable private-enforcement statutes existed in England, and early Congresses enacted laws allowing private informers to sue for portions of penalties. Supporters argue that this history is powerful evidence that the Founding generation did not understand Article II to prohibit such suits.

The district court rejected history as a trump card. It reasoned that historical practice cannot override clear constitutional requirements and questioned whether the early statutes were sufficiently comparable to the modern FCA. The Eleventh Circuit must therefore decide not only what happened historically, but how much constitutional meaning that history deserves.

The Supreme Court Has Already Sent Signals

The Supreme Court has not squarely resolved the Article II challenge to FCA relators. In its 2023 Polansky decision, the Court held that the government may move to dismiss a qui tam action after intervening and that ordinary voluntary-dismissal principles generally apply. The majority emphasized the government’s continuing interests and substantial authority within the statutory scheme.

Justice Clarence Thomas dissented and raised serious doubts about whether private relators may represent the United States consistently with Article II. Justices Brett Kavanaugh and Amy Coney Barrett separately indicated that the constitutional issue deserved future consideration. In a 2025 FCA decision, Justice Kavanaugh, joined by Justice Thomas, again noted that the qui tam provisions raise substantial Article II questions.

Those separate opinions are not holdings. They do, however, function like a courthouse weather alert: no storm has officially arrived, but experienced lawyers are bringing umbrellas.

Arguments for Preserving FCA Qui Tam Powers

The defense of the statute rests on several connected points. First, relators are private parties enforcing assigned civil claims, not officers administering federal programs. They have no general governmental portfolio and possess authority only within a judicial proceeding governed by statutes, procedural rules, and judicial supervision.

Second, the United States remains the real party in interest and retains meaningful control mechanisms. The government receives the complaint and evidence before service, may investigate under seal, can intervene at the outset or later for good cause, and can pursue dismissal after intervention. Courts may also restrict burdensome relator conduct.

Third, history strongly supports constitutionality. Private enforcement mechanisms existed before and near the Founding, and Congress has repeatedly chosen qui tam tools to supplement limited enforcement resources. The modern FCA may be more powerful than early statutes, but defenders argue that differences in scale do not transform a private claimant into a constitutional officer.

Finally, several federal appellate courts have rejected Article II attacks on FCA qui tam provisions. Reversing the Florida district court would restore the dominant judicial approach and avoid destabilizing an enforcement system that Congress has strengthened and relied upon for decades.

Arguments for Limiting or Invalidating Qui Tam Authority

The constitutional challenge begins with first principles. Article II vests executive power in the President, requires faithful execution of federal law, and regulates the appointment of federal officers. A lawsuit seeking treble damages and penalties in the name of the United States looks, to critics, like law enforcement rather than an ordinary private dispute.

Relators may initiate cases the Executive Branch did not choose to file. In non-intervened actions, they often control discovery, motion practice, trial strategy, and appeals. Even though the government has statutory tools, using them may require intervention, additional litigation, and judicial approval. The President also cannot simply remove a relator as if removing an executive official.

Critics further argue that modern FCA litigation differs dramatically from narrow historical informer statutes. Today’s cases can last for years, involve sprawling discovery, generate enormous potential liability, and shape nationally important interpretations of health care and procurement rules. In their view, historical cousins do not automatically provide a constitutional adoption certificate for the modern statute.

Four Possible Outcomes in Zafirov

1. A Broad Reversal

The Eleventh Circuit could hold that relators are private claimants rather than federal officers and reject the Article II challenge. That would revive Zafirov’s case and align the circuit with courts that have upheld the qui tam model.

2. A Narrow Ruling Focused on Non-Intervened Cases

The court could distinguish between cases controlled by the government and cases prosecuted primarily by relators. Such a decision might preserve government-led FCA actions while placing non-intervened cases on uncertain constitutional ground.

3. An Affirmance With Sweeping Consequences

If the court agrees that relators are improperly appointed officers, defendants throughout the Eleventh Circuit would gain a powerful dismissal argument. A broad opinion could create a direct conflict with other circuits and make Supreme Court review substantially more likely.

4. A Middle Path Based on Control or Remedy

The panel could avoid invalidating the entire system by identifying a narrower defect or a limiting construction. It might emphasize government intervention, dismissal authority, severability, or procedural safeguards. The difficulty is designing a judicial fix without rewriting a statute Congress carefully assembled.

What the Case Means for Health Care and Government Contractors

The immediate business impact extends well beyond Florida medical coding. FCA exposure touches hospitals, Medicare Advantage plans, pharmaceutical companies, defense contractors, grant recipients, cybersecurity vendors, customs importers, and businesses receiving federal loans or emergency funds.

The Justice Department reported more than $6.8 billion in FCA settlements and judgments for fiscal year 2025, the highest annual total it had announced. It also reported 1,297 new qui tam filings and more than $85 billion in recoveries since the 1986 amendments. Health care matters accounted for most of the fiscal 2025 recovery. In other words, this constitutional debate is not a law-school hypothetical wearing elbow patches.

Companies should not assume that a constitutional challenge replaces ordinary compliance work. Even if qui tam authority is narrowed, the Justice Department can bring FCA cases directly, state false claims laws may apply, agencies can impose administrative remedies, and criminal statutes remain available where appropriate.

Relators and their counsel should expect defendants to preserve Article II objections, especially in non-intervened cases. They should also be prepared to explain why government supervision, historical practice, and private-assignment principles answer the officer-status argument.

Practical Experience: What FCA Teams Learn the Hard Way

Experience across False Claims Act matters produces a recurring lesson: the constitutional headline may be dramatic, but cases are usually won or lost through disciplined facts. Coding records, internal emails, audit trails, reimbursement guidance, contracts, and evidence of who knew whatand whenremain central. A company that treats documentation as an annoying chore may later discover that memory is a terrible exhibit.

Government Non-Intervention Is Not a Victory Parade

Defendants sometimes interpret a decision not to intervene as proof that the allegations are weak. That can be a costly assumption. The government may decline for resource, priority, timing, or evidentiary reasons while allowing the relator to proceed. It may later intervene for good cause, file statements of interest, defend the statute, or participate in settlement discussions. Sound strategy treats non-intervention as a procedural event, not a merits verdict.

Preserve Constitutional Defenses Without Neglecting the Complaint

After Zafirov, defense lawyers have an obvious reason to preserve Appointments Clause, Vesting Clause, and Take Care Clause arguments. Preservation matters because appellate law can change while a case is pending. Yet a constitutional motion should not distract from familiar defenses involving falsity, scienter, materiality, causation, pleading particularity, public disclosure, first-to-file rules, and limitations periods.

Betting everything on one appellate thunderbolt is exciting, but so is juggling chainsaws; neither is a substitute for a complete defense plan.

Compliance Teams Should Investigate the System, Not Only the Bad Invoice

In health care cases, an isolated coding error is different from a process designed to generate unsupported diagnoses. Experienced investigators examine incentives, training, audit responses, data analytics, physician queries, vendor arrangements, and whether identified overpayments were corrected. For government contractors, the equivalent questions may involve testing records, cybersecurity certifications, pricing disclosures, domestic-content rules, or performance reports.

The practical goal is to determine whether the problem is accidental, negligent, reckless, or knowing. The FCA is not supposed to punish every mistake. However, repeated warnings, ignored audit findings, or carefully engineered ambiguity can transform a manageable compliance issue into a much larger dispute.

Whistleblower Cases Demand Patience and Information Discipline

Qui tam complaints can remain sealed for extended periods while the government investigates. Relators may face years of uncertainty, and defendants may not initially know a case exists. Once a matter surfaces, careless communications can make everything worse. Internal messages joking about billing shortcuts rarely improve with age, context, or enlargement on a courtroom screen.

Organizations benefit from clear reporting channels, anti-retaliation safeguards, prompt investigations, and documented remediation. Employees are more likely to report concerns internally when they believe the process is credible. Retaliation can create separate legal exposure and turn a technical billing dispute into a story about institutional culture.

Intervention Changes the Center of Gravity

When the government intervenes, litigation strategy, settlement dynamics, and resource demands often change immediately. The case gains investigative depth and institutional weight, while the relator moves into a secondary role. In a declined case, the relator’s counsel must finance and manage more of the litigation. The constitutional questions in Zafirov matter precisely because that difference in control is not cosmetic; it determines who is actually driving the case.

The best practical response is therefore two-track planning. Teams should monitor appellate developments while preparing the underlying FCA case as though no constitutional rescue is coming. Courts appreciate preserved legal arguments. They appreciate organized facts even more.

Conclusion: A Constitutional Question With Operational Consequences

The Eleventh Circuit’s review of FCA qui tam powers forces courts to examine an enforcement partnership that has long seemed unusual but workable. The government calls the system an essential fraud-fighting tool. Challengers call it an unconstitutional delegation of executive authority. Both descriptions capture part of the tension.

As of June 18, 2026, the public sources reviewed for this article did not show a published Eleventh Circuit merits decision in Zafirov. Until the court rules, companies, whistleblowers, and counsel should avoid treating either the district court’s decision or the traditional consensus as the final word. The eventual opinion could preserve the current system, narrow non-intervened cases, or send the issue toward the Supreme Court.

Whatever happens, the FCA itself will not vanish. Direct government enforcement will remain, compliance failures will still carry risk, and federal money will continue attracting both fraud and investigators. The real question is who may knock on the courthouse door in the name of the United Statesand whether Article II permits a private citizen to bring the keys.

Note: This article is for general informational purposes, reflects public information available through June 18, 2026, and does not constitute legal advice.