Arguments Heard on the Constitutionality of Qui Tam Lawsuits Under the False Claims Act
On December 12, 2025, the Eleventh Circuit Court of Appeals recently heard oral arguments in U.S. ex rel. Zafirov v. Florida Medical Associates, a case challenging the constitutionality of the qui tam provisions of the False Claims Act (FCA) under Article II of the U.S. Constitution. As we have discussed before, the qui tam provisions of the FCA allow private individuals to sue on behalf of the United States to recover damages and penalties associated with fraud on the government. If the FCA’s qui tam provision is deemed unconstitutional, it would have a devastating impact on fraud enforcement, and the U.S. will miss out on billions of dollars in recoveries of stolen taxpayer funds per year.
The core issue debated before the judges: Do whistleblowers who file qui tam lawsuits on behalf of the U.S. government under the FCA exercise executive power in a way that violates the Appointments Clause, the Vesting Clause, or the Take Care Clause of Article II of the U.S. Constitution?
How Did We Get Here?
We have written several times about the background of the case, and I won’t belabor it here (check out our previous blogs here, here, here, and here), but briefly, in a U.S. Supreme Court opinion in a case about the government’s authority to dismiss qui tam actions, Justice Thomas issued a dissenting opinion (joined by Justice Barrett and Justice Kavanaugh) in which he expressed his concern that the FCA ceded too much Executive power to relators and may violate Article II. Following Justice Thomas’ lead, defendants across the country began filing motions to dismiss on constitutional grounds, all of which were summarily denied until Judge Mizelle in the Middle District of Florida granted the defendant’s motion, finding that the qui tam provision of the FCA violated Article II’s Appointments Clause. The relator in that case and the U.S. government appealed Judge Mizelle’s order to the Eleventh Circuit Court of Appeals.
At oral argument in the appeal, Tejinder Singh of Sparacino PLLC argued for the relator, Daniel Winik argued for the United States government, Kannon Shanmugam of Paul Weiss Rifkind Wharton & Garrison LLP argued for the defendant, and Steven Engel of Dechert LLP argued for the Chamber of Commerce. Below is a brief analysis and dissection of the various arguments made by the attorneys:
The Appointments Clause Debate: Are Relators “Officers of the United States”?
The Appointments Clause in Article II of the U.S. Constitution dictates how “Officers of the United States” must be appointed (by the President with Senate advice/consent, or by the President, courts, or department heads for “inferior Officers”). The central conflict in the Zafirov appeal revolves around two prongs of the test for an “officer” – if both prongs are met it may be unconstitutional for private relators to sue on behalf of the United States without being duly appointed as officers:
1. Do Relators Occupy a “Continuing Position Established by Law”? (The Government’s Focus)
– The Government’s and Relator’s Argument: No. They argued that the role of a relator is personal and ad hoc, not a continuing office. Once a person files a qui tam action, no other private person can intervene, making the role specific to that individual. They compared relators to other positions such as civil surgeons or merchant appraisers, which the Supreme Court previously found were not “offices.”
— Key Takeaway: The government and the relator urged the court to affirm the constitutionality of the FCA’s qui tam provision on this basis, arguing the relator does not occupy a continuous, transferable office.
– The Defendant’s Argument: Yes. The defendant and Chamber of Commerce countered that the statute itself “effectively creates an office of the relator,” and while the individual relators may change, there are always many relators fulfilling the statutory function at any given time, making it a continuing function.
2. Do Relators Exercise “Significant Authority Under the Laws of the United States”?
– The Government’s and Relator’s Argument: No, because the government has significant control in qui tam actions. They stressed that the relator’s unilateral power is limited. The government is notified, can intervene and take over, or intervene and dismiss the case almost without limitation. If the government allows the relator to proceed, it is making an “affirmative choice” consistent with its enforcement priorities. The government stressed that the only way a private person could be considered to be exercising significant authority for Appointments Clause purposes is if relators are “performing a function that only the government can constitutionally perform,” which is not the case in FCA qui tam actions.
— Relator’s Argument: Relators cannot exercise significant authority because they cannot influence what the government does or how it investigates, do not get access to government resources, and the government can step in and take over or dismiss the qui tam case pretty much at will.
– The Defendant’s Argument: Yes. They asserted that relators collectively, under the qui tam provision, exercise significant executive authority by:
Initiating enforcement actions in the government’s name.
Conducting those actions as they wish.
Seeking massive treble damages and statutory penalties.
The act of filing the complaint under seal compels the government to investigate, thereby directing the use of executive branch investigatory resources, even if the government ultimately declines to intervene.
The Vesting and Take Care Clauses, and the Weight of History
The Vesting Clause of the U.S. Constitution gives the President all executive power, and the Take Care Clause requires the President to “take Care that the Laws be faithfully executed.” The defense argued that private initiation and control of public interest litigation breaches the President’s unitary control over law enforcement.
– The History Conflict: The government and the relator heavily relied on the long, pre- and post-ratification history of qui tam actions, which are permitted under a variety of historical laws, arguing that the founders accepted them as a “constitutionally permissible means of enforce law” and a “bedrock feature of American law.”
– The Defendant’s Counter: They argued this history is “indeterminate” and insufficient to overcome the application of clear constitutional principles. They argued (incorrectly) that:
– The early qui tam statutes quickly fell into disuse.
– Article II represented a “radical departure” from the English system, making prior history less relevant.
– The modern FCA, post-1986 amendments, is a “more virulent form” that leads to hundreds of cases per year, far exceeding historical precedent and fragmenting executive power.
– Relator’s Response: There is evidence that early qui tam actions were used frequently, especially laws such as the Slave Trade Act, which allowed private citizens to sue to enforce laws against the slave trade, sharing penalties with the government.
The Court’s Dilemma
The judges struggled with the Appointments Clause issue, specifically noting that the Supreme Court has never applied it to a true private person who is neither an employee nor a contractor. They were also focused on translating what the exact concerns of Justice Thomas were and seemed to be navigating how to consider those concerns in light of the fact that a relator is unlikely to be considered a continuing position for Appointments Clause purposes, as they are a private person bringing a case on behalf of themselves, which, if successful, will benefit the government.
Possible Outcomes and Implications
The court was a little inscrutable and it is extremely hard to predict what the outcome will be. A full-scale win for constitutionality on the Appointments, Take Care, and Vesting Clauses, without reservation seems highly unlikely. The court could reverse on the Appointments Clause issue only, as the court appeared skeptical of the defendant’s “continuous position” arguments, and remand. In that case defendants would likely raise Take Care and Vesting Clause challenges with the possibility of Judge Mizelle finding that the FCA violates those clauses and the case would then head back to the Eleventh Circuit on appeal. And of course, the court could find that the FCA violated Article II, and then the case would almost certainly be taken up by the Supreme Court. No matter how it shakes out here, there is still a long road ahead.
This case will have massive implications for the future of the FCA and the government’s ability to recover billions of dollars annually from fraud. When pharmaceutical companies have free reign to sell contaminated drugs and doctors are allowed to prescribe dangerous off-label drugs to get a kickback, patients safety is threatened. When defense contractors are allowed to skimp on materials for bullet proof vests and manufacture tanks using shoddy equipment, American troops’ lives are at risk. Often whistleblowers are the only individuals aware of the fraud besides the perpetrators and are necessary to alert the government, and the FCA exists in large part to deter bad actors from engaging in these fraud schemes in the first place. Aside from the theft from our pockets that would proliferate wildly in a post-FCA world, the real-world damage would be catastrophic. Hopefully that will not become the reality, and here at The Anti-Fraud Coalition, we will continue to fight hard to make sure that it is not.
