Today, the Eleventh Circuit heard oral argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, a case addressing the constitutionality of qui tam relators that has drawn national attention. At stake is the future of qui tam whistleblower actions under the FCA—a statutory scheme that has, for decades, empowered private individuals to bring fraud claims on behalf of the federal government.
The Zafirov appeal arrives at a pivotal moment. Following comments from justices in dissenting and concurring opinions relating to the constitutionality of the qui tam provision, last year a district court in Florida became the first court in the country to hold that the FCA’s whistleblower provisions run afoul of the Constitution. The district court found that qui tam relators are “officers” under Article II—and that their self-appointment and control over litigation, without executive oversight, violates the Appointments Clause. This rationale cuts to the core of the FCA’s public-private enforcement partnership and has attracted significant attention from stakeholders across the legal and healthcare communities, as well as a broad array of amici.
The stakes are substantial. The government and relator-appellant Zafirov argue that the FCA’s structure is deeply rooted in American legal tradition and essential to fraud enforcement efforts, particularly in healthcare and federal program administration. Defendants counter that the statute creates an unconstitutional shortcut, handing executive branch power to non-appointed private citizens, in tension with separation of powers principles.
The Circuit Court heard today from the defendant, the relator, the United States and the Chamber of Commerce. Predicting a result based on oral argument is always tricky. We can say that the bench was hot, peppering all counsel with a bevy of questions. In addition to upholding the decision or reversing it, the judges and counsel also appeared to give the Court opportunities to remand the case before ruling on the merits. Whether via this case or another, this issue will almost certainly land up before the Supreme Court.
The Judges Probe the Boundaries of Article II and Qui Tam Structure
The Eleventh Circuit’s Friday morning oral argument in Zafirov was marked by engaged questioning from all corners of the panel, each testing the parties’ theories against both the text of the Constitution and the practical realities of FCA enforcement.
The government opened by reminding the Court that, until now, every circuit and nearly every district court to consider the question had found the FCA’s whistleblower provisions fully compatible with Article II. Judge Branch immediately highlighted the seismic change signaled by recent comments from the Supreme Court. “It’s been about 25 years,” she noted, “and we have some recent statements from the US Supreme Court...that [SCOTUS] might, on the appropriate case, take up the issue of the constitutionality of the qui tam provisions under Article II, correct?” It was a direct acknowledgment that this case may well be the vehicle the high court is looking for, given the strong signals sent by Justices Thomas and Kavanaugh.
What followed was a meticulous dissection of what it means to be an “officer” under the Appointments Clause. The government was pressed to clarify its position, especially in light of its own shifting stance in recent briefing regarding when private persons exercising continuing governmental power must be subject to Article II appointment. Judge Branch wanted to know directly: even if the test for “officer” that the district court used was right in theory, did the government think the district court misapplied it to relators?
Judge Luck and Judge Branch then led a colloquy on whether any court had found the Appointments Clause applied to someone not employed by, or under contract with, the government. Here, the government conceded that it was not aware of such a case. The panel returned to this “outsider” question repeatedly, signaling that unless and until a relator truly wields ongoing federal authority, the traditional officer analysis may not fit.
The Court pressed further, turning discussion to whether simply allowing a private party to trigger a government investigation or influence the exercise of prosecutorial discretion is itself enough to implicate “significant authority” under Article II. The Court repeatedly referenced Justice Thomas’s recent dissent in Polansky, highlighting concerns that relators force the government to investigate and potentially pursue claims it might otherwise decline. The DOJ countered that, under the FCA, the government retains full control to intervene or dismiss at any time even if and after the government declines to intervene, ensuring relators never exercise unilateral executive power.
Counsel for relator seized the opportunity to underscore the practical limitations placed on relators—and, critically, the omnipresent ability of the DOJ to intervene, dismiss, or override the relator’s case at nearly every stage. When pressed, counsel argued that relators cannot marshal government resources, cannot bind the United States to legal positions, and, in many practical ways, initiate and litigate just like any other private fraud plaintiff. So then, Judge Luck asked “is Justice Thomas wrong in his dissenting opinion in Polansky as to the significant authority of the test?”
The response was twofold. First, relator’s counsel emphasized the breadth of government control, arguing that the government’s decision to allow the case to continue is an “affirmative” endorsement—and that, after declination, the action becomes truly private, “where the government will benefit as a byproduct.” Second, he aimed to blunt the “significant authority” critique with parallels to other regulatory schemes, like Title VII, where a private filing nonetheless triggers a government investigation.
When the defense took the podium their core position was that the FCA’s qui tam framework violates the constitutional separation of powers by placing significant enforcement authority in the hands of private, unsupervised individuals. They argued this “outsourcing” of executive power has expanded since the 1986 amendments, making relators quasi-prosecutors without presidential appointment or removal, and that this arrangement severs the executive branch’s control over federal law enforcement.
The panel focused on the doctrinal gaps in the defense’s theory. As the Court did with the government, it pressed for a limiting principle: “Has the Supreme Court ever found that a purely private actor, not employed or contracted by the government, is subject to the Appointments Clause?” The defense admitted, “No,” but insisted this was a matter of first impression and the relator’s powers under the FCA are functionally equivalent to those of the independent counsel or special prosecutor—positions clearly governed by Article II.
The judges repeatedly questioned how much significance should be given to early American qui tam statutes, both before and after ratification. Judge Branch noted there was “a lot of pre-ratification history,” and pointed out that while both sides relied on history, much of it involved short-lived or rarely enforced statutes. She and Judge Luck pressed defense counsel as to whether such practice should guide the constitutional analysis. The panel stressed that the real question was whether historical practice reflected actual constitutional settlement or was simply inertia. Defense counsel responded that, in their view, neither pre- nor post-ratification examples provide the established unbroken line of history necessary to override Article II’s text and structure, especially where, as here, statutes permitted broad private enforcement without executive oversight.
The panel’s questions made clear that the Court was seeking a bright-line rule or meaningful boundary for Article II delegation—one the defense attempted to supply beyond their position that any private enforcement of core governmental authority, untethered to executive control, risks exceeding constitutional bounds.
Steven Engel, representing the U.S. Chamber of Commerce as amicus, drove these points home with a warning that if the logic of the FCA prevails, there may be no real obstacle to “outsourcing” executive branch enforcement to a mass of private parties, fundamentally changing the nature of accountability. He underscored that dramatic surge in qui tam filings in recent decades, attributing it to structural defects that, in his view, would not have survived scrutiny by the Framers.
The takeaway for FCA stakeholders is that Zafirov may well mark a constitutional crossroads for whistleblower enforcement. The Eleventh Circuit’s decision, whatever it may hold, will likely be petitioned to the Supreme Court, especially with the stakes now more pronounced by the opinions of Justices Thomas and Kavanaugh in recent cases. Until then, both government enforcement teams and compliance officers operating under FCA scrutiny should be prepared for continued uncertainty—and for the possibility that the rules of the game may soon shift in ways not seen in decades of whistleblower litigation.