Health Law Daily Wrap Up, EXPERT INSIGHTS: Eleventh Circuit rejects one constitutional challenge but leaves open questions on FCA qui tam provisions, (Sep 15, 2026)

By Douglas W. Baruch ; Kayla Stachniak Kaplan; Ryan P. McCarthy; Jaclyn Unis Whittaker; Jennifer M. Wollenberg; Nicole Shammo; Jonathan Wilt

The Eleventh Circuit rejected the argument that the qui tam provisions are unconstitutional under the Appointments Clause.

On September 1, 2026, in a much-anticipated ruling, the Eleventh Circuit vacated a 2024 Middle District of Florida decision ruling that the qui tam provisions of the False Claims Act were unconstitutional under Article II’s Appointments Clause. The case—United States ex rel. Zafirov v. Florida Medical Associates, LLC—has now been remanded to the district court for further consideration of whether the provisions violate Article II’s Vesting and Take Care clauses.

In its unanimous panel decision, the Eleventh Circuit joined several circuits, who last took up the issue more than 20 years ago, in holding that qui tam relators are not “officers” subject to the Appointments Clause, and eliminating the most immediate prospect for a circuit split on the FCA’s constitutionality.

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