Bracker & Marcus LLC is based in Georgia, which is part of the Eleventh Circuit, along with Alabama and Florida. We have cases filed all over the country, but many are filed in our home district in Atlanta. For the last couple of years, however, some of those cases that we were litigating were stayed (paused) by the court because a judge in Florida declared the False Claims Act’s qui tam provisions unconstitutional under the Appointments Clause.
On September 1, 2026, however, the U.S. Court of Appeals for the Eleventh Circuit reversed the district court decision. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit unanimously held that False Claims Act Relators are not “Officers of the United States” who must be appointed under Article II of the Constitution. The court vacated the dismissal of the Relator’s case and sent it back to the district court for further proceedings.
The decision resolves a constitutional question for False Claims Act cases in the Eleventh Circuit, although it does so on relatively narrow grounds.
What does this mean for our clients? Other Circuits around the country are grappling with this same question or else they too have found the False Claims Act to be a constitutional statute. For now and for the foreseeable future, we return to business as usual here in Georgia, confident that we will be able to file cases in this Circuit without the courts dismissing them for being unconstitutional or otherwise delaying their resolution.
How Zafirov Became a Constitutional Case
Dr. Clarissa Zafirov, a Florida physician, filed a qui tam lawsuit in 2019, alleging that healthcare entities submitted false diagnosis codes that resulted in inflated Medicare payments. The United States investigated the allegations but did not intervene, and Zafirov continued prosecuting the case as the False Claims Act permits.
For several years, the case proceeded much like other non-intervened FCA matters.
That changed following the Supreme Court’s 2023 decision in United States ex rel. Polansky v. Executive Health Resources. In a dissenting opinion, Justice Clarence Thomas questioned whether allowing private Relators to prosecute claims belonging to the United States is consistent with Article II. He specifically identified potential questions under the Appointments Clause and the President’s executive authority.
Why the Appointments Clause Was Challenged
In Zafirov, the defendants argued that qui tam litigation violated the Appointments Clause, Take Care Clause, and Vesting Clause. Judge Kathryn Kimball Mizelle of the Middle District of Florida, a former Supreme Court Clerk to Justice Thomas, agreed with the defendants on the Appointments Clause issue. She concluded that Relators exercise significant federal authority and occupy a continuing position established by law. Because Relators are not appointed pursuant to Article II, the court dismissed the case.
The stakes increased considerably once the district court accepted that argument. A single district court ruling does not bind other courts, but several courts around the country stayed FCA cases while the Eleventh Circuit considered the appeal. Had the Eleventh Circuit affirmed and held the qui tam provisions unconstitutional, the ruling would have prevented enforcement of those provisions throughout the Circuit and almost certainly invited immediate Supreme Court review.
Why a Relator Is Not a Federal Officer
For a person to qualify as an Officer of the United States, the person must, among other requirements, occupy a continuing position established by law. That means the position is always filled, regardless of which party is in power or who occupied the office previously.
A Relator’s authority exists only in connection with their particular lawsuit. Some would also argue that authority is actually a myth because the government always maintains the ability to intervene, settle, or dismiss the action at its discretion.
The Relator’s role is temporary and personal to that Relator. A Relator receives no continuing government salary, holds no general governmental responsibilities, and possesses no continuing rights of office after the litigation ends.
There is also no succession. Another private citizen cannot simply replace the Relator and continue prosecuting the same claim. The FCA generally prohibits another person from intervening in the Relator’s action or bringing a related action based on the same facts.
The History of Qui Tam Enforcement
That distinction also fits with the long history of qui tam statutes. Private enforcement actions existed before the Founding and were repeatedly authorized by the early Congresses.
That history became particularly relevant because structural constitutional questions are often evaluated against the practices understood to be permissible when the Constitution was adopted. The Eleventh Circuit ultimately did not need to resolve the case on historical grounds because the absence of a continuing federal office was enough to dispose of the Appointments Clause challenge.
What the Eleventh Circuit Decided—and What It Did Not
However, the narrowness of the decision is noteworthy. The Eleventh Circuit did not decide whether the defendants’ separate arguments under the Take Care Clause and Vesting Clause had merit. The district court had not reached those questions, so the Eleventh Circuit remanded the case for the district court to consider them in the first instance, which could mean further appellate proceedings.
The Eleventh Circuit also resolved only one component of the Appointments Clause argument. The fact that the court rejected the Appointments Clause challenge does not mean that every constitutional question surrounding qui tam actions has been definitively resolved.
What Zafirov Means for False Claims Act Cases in Georgia
For FCA cases in the Eleventh Circuit, the immediate practical impact is significant.
The district court’s ruling in Zafirov had created uncertainty for cases being litigated in Georgia, Alabama, and Florida. Some cases were stayed while the constitutional question worked its way through the appellate courts.
With the Eleventh Circuit’s decision, that particular constitutional obstacle has been removed. False Claims Act Relators in the Eleventh Circuit do not violate the Appointments Clause merely by bringing qui tam actions.
For Bracker & Marcus LLC and our clients, that means we can return to business as usual in Georgia. We remain able to pursue False Claims Act cases in this Circuit without the Appointments Clause challenge serving as a basis for dismissal or continued stays.
The broader constitutional debate, however, is not necessarily finished.
What Happens Next in Zafirov?
The defendants may seek rehearing en banc or ask the Supreme Court to review the Eleventh Circuit’s decision.
The narrow ruling may make immediate further review less attractive. The district court has not yet addressed two of the three constitutional theories raised by the defendants, and the Eleventh Circuit resolved only one component of the Appointments Clause argument.
An appellate court considering a major constitutional challenge may prefer a case in which the competing theories have been fully developed and decided below.
For now, however, the Eleventh Circuit’s decision provides a clear rule for Relators in this Circuit.
What This Means for FCA Relators
For now, the rule in the Eleventh Circuit is straightforward: False Claims Act Relators do not occupy continuing federal offices and therefore do not violate the Appointments Clause merely by bringing qui tam actions.
That is an important development for FCA litigation in Georgia, Alabama, and Florida, particularly for cases that were delayed while the constitutional challenge was pending.
As to the Take Care Clause and Vesting Clause, we’ll just have to stay tuned and see what the defense bar does next.