On Friday, the Eleventh Circuit heard oral arguments in United States ex rel. Zafirov v. Florida Medical Associates, LLC regarding the constitutionality of the qui tam provisions in the False Claims Act, which allow private persons, known as relators, to file civil enforcement actions for violations of the FCA. The panel consisted of Trump-appointed Judges Elizabeth Branch and Robert Luck and a George H.W. Bush-appointed Judge Federico Moreno sitting by designation from the Southern District of Florida. While the parties briefed issues surrounding the Vesting Clause and Take Care Clause of the Constitution, the court zeroed in on whether the qui tam mechanism violates the Appointments Clause, which governs the appointment of “Officers of the United States,” by allowing a private person to exercise core executive power without executive appointment, oversight, or control.

The appeal followed from an opinion penned by Judge Kathryn Mizelle of the United States District Court for the Middle District of Florida holding that a relator’s authority “directly defies the Appointments Clause by permitting unaccountable, unsworn, private actors to exercise core executive power with substantial consequences to members of the public.” More on that opinion can be found in Bradley’s prior Eye on Enforcement post here.

Background

Three Supreme Court justices have recently voiced their concerns about the constitutionality of the statute. In United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), Justice Clarence Thomas wrote a dissent in which he referred to the provisions as the “constitutional Twilight Zone,” and Justices Brett Kavanaugh and Amy Coney Barrett, concurring with the majority’s opinion, likewise agreed that there were constitutional concerns with the qui tam provisions. In Wisconsin Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498 (2025), Justices Kavanaugh and Thomas filed a concurrence inviting challenges to the constitutionality of the qui tam provisions.

Since that time, two Fifth Circuit Court of Appeals judges have likewise voiced their concern in concurrences. In United States ex rel. Montcrief v. Peripheral Vascular Associates, P.A., 133 F.4th 395 (5th Cir. 2025), Judge Kyle Duncan argued that the qui tam provisions violate the Appointments Clause because relators exercise core executive authority without being properly appointed as an “Officer of the United States.” In Unites States ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, L.L.C., No. 25-20093 (5th Cir. Nov. 3, 2025), Judge James Ho expressed similar concerns.

Oral Argument

Out of the gate, Judge Branch peppered the government regarding a change in its position from its initial brief to its reply brief. The government initially argued that the Appointments Clause was not implicated because relators are private persons outside the government. Later, the government seemed to concede that relators exercise significant authority under the Appointments Clause analysis but argued that there is no violation of the clause because relators do not occupy a continuing position, the authority that relators exercise is not unilateral, and the Department of Justice retains sufficient control to alleviate any concerns.

The panel focused its questions on the history of qui tam provisions since the founding. Judge Luck pressed counsel for all parties on this point, questioning whether they may rely on the existence of those early qui tam statutes to support the constitutionality of the modern FCA. He emphasized concerns that some early provisions may have allowed private parties to bring criminal enforcement actions, when such power would almost certainly be considered unconstitutional today. He likewise seemed to question whether a private person could be subject to the Appointments Clause at all, asking all counsel to explain whether any court had ever analyzed Appointments Clause issues regarding a private person wholly unconnected to the federal government, as opposed to a government employee or contractor. All parties seemed to agree that relators presented a unique case in this regard.

The government’s ability to control relator-led litigation is likely to be another important factor in the panel’s ultimate decision. Judge Moreno — a district court judge who sat with the panel by designation — seemed to express doubt as to the government’s control mechanisms. He remarked that, in his own experience as a district court judge, he saw many qui tam actions, but in only a small number did the government intervene to take control of the case. As the government is bound by the outcomes of each relator-led suit, he appeared to agree that there may be insufficient evidence of control that the executive branch can exercise over these private relators, or at least that such control is not exercised in practice.

Conclusion

While the panel did not seem to clearly favor one side over the other during oral arguments, the judges did seem to take interest in how the Supreme Court may assess the parties’ positions in light of its recent decisions on both FCA and Article II power. Judge Luck noted the uniqueness of Article II’s constitutional contours in the context of the founding era and questioned the parties as to whether the panel should remand to the district court to determine whether the provision violates the Vesting and Take Care clauses. Regardless, we can expect that any decision may ultimately make its way to the Supreme Court to decide. With the Court’s recent emphasis on the protection of the Executive’s Article II power, the current qui tam provision may be on its last leg. In the face of heightened constitutional scrutiny, it remains to be seen whether the Court will leave the current iteration of the FCA’s qui tam provisions in place.