The Whistles Will Continue to Blow: The Eleventh Circuit Confirms the Constitutionality of the False Claims Act’s Qui Tam Provisions

Until September 2024, it was well established that the qui tam provisions of the False Claims Act (FCA) were constitutional. The FCA’s emergence from obscurity following Congress’ 1986 amendments to the statute resulted in over $85 billion in fraud recoveries. Of that $85 billion, nearly $61 billion was recovered under the FCA’s qui tam provisions and until September 2024, every challenge to the constitutionality of the FCA’s qui tam provisions met defeat.

What Is a Qui Tam Complaint?

The qui tam provisions of the FCA permit a whistleblower (i.e., someone with unique or insider information) to bring a claim of fraud in the name of the government. Filing a qui tam complaint triggers an obligation for the United States to investigate the allegations. The government may choose to intervene and take over the case, or decline but permit the whistleblower, also known as a “relator,” to continue with the claim and stand in the shoes of the government. If the qui tam action results in a recovery for the government, the relator is eligible to receive up to a 30% cut of the recovery.

The Zafirov Case History

In 2024, a federal district court judge in the Middle District of Florida dismissed Clarissa Zafirov’s Medicare fraud allegations in her qui tam complaint, finding that the qui tam provisions violated the Appointments Clause of Article II of the U.S. Constitution.

To refresh, the Appointments Clause states the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Officers of the United States.”

The defendants in Zafirov argued that relators qualify as officers of the United States and must be presidentially appointed. According to defendants and the district court, relators exercise significant federal authority in a continuing position without appointment by the President or consent by the Senate, thus making them officers of the United States. Without presidential appointment and consent of the Senate, these whistleblowers were acting outside the bounds of the constitution.

The New 11th Circuit Decision

The Eleventh Circuit issued its opinion on the matter September 1, 2026 (pdf). In a relatively short and direct manner, the court deconstructed the district court’s reasoning and reversed the dismissal and sent the case back for the court to take up two other constitutional challenges the district court did not address.

In reversing the district court, the Eleventh Circuit confined its analysis to one of several points raised by Zafirov and the United States (which intervened to defend the constitutionality of the qui tam provisions).

The court noted relators do not occupy a continuing position, meaning they cannot be officers of the United States as outlined in the Appointments Clause. The concept of a “continuing position” under Supreme Court caselaw evaluates three factors:

1. Whether the position is temporary
2. Whether they receive continuing emoluments (i.e., compensation/pecuniary benefit derived from employment or from holding an office)
3. Whether their duties are personal or tied to a particular office

Analysis of Relator’s Role

The court’s analysis was simple and direct. First, a relator has no remaining duties once a case is completed, meaning the relator’s role is intermittent and nonpermanent.

While FCA investigations/cases can last for several years, duration under Supreme Court precedent is not measured purely in months or years. Rather, duration is evaluated by asking whether the duties are permanent or occasional and intermittent. The Court stated that a relator’s duties “do not extend over any case further than as he is selected to act when the government declines to intervene.”

Second, even assuming a relator’s potential compensation (awarded only if there is a settlement or judgment in favor of the United States) constitutes an emolument, it is not continuing.

A relator’s duties related to an FCA case are intermittent and compensation is a contingent, one-time award of a percentage of a judgment. It is not compensation paid through any appropriation of funds consistent with all other officers of the United States.

Finally, there simply is no “office of the relator” that presents continuing duties that are not personal to the individual whistleblower. Every qui tam case centers on a personal role of the relator, and the duties of the relator in a particular case do not continue after the case is resolved.

Put another way, the relator’s duties in each case cannot be taken over by others and are personal only to a specific case. This fact confirms there is no generalized “office of the relator” triggering application of the Appointments Clause.

What Happens Next?

As it stands, the qui tam provisions of the FCA remain constitutional and barring contrary decision by the Supreme Court, which would certainly take considerable time to brief, argue, and decide. For the foreseeable future, then, relators will continue to file complaints and the FCA will undoubtedly be the central tool employed by DOJ’s National Fraud Enforcement Division to combat waste, fraud, and abuse.

If you are in a highly regulated industry, or your business involves any government funds, rest assured that whistleblowers will continue to pursue qui tam cases.  Should you have any questions about how this ruling might affect you or your business, please reach out to the Woods Rogers Government & Special Investigations team.