��������

On December 12, the U.S. Court of Appeals for the Eleventh Circuit heard oral argument in U.S. ex rel. Zafirov v. Florida Medical Associates,¹ a closely watched appeal arising from Foley’s precedent-setting victory for its clients in a constitutional challenge to the False Claims Act’s (FCA) qui tam provisions. The FCA’s qui tam provisions permit private individuals, known as “relators,” to file lawsuits on behalf of the United States, alleging fraudulent claims submitted for payment from the government. In a landmark win for Foley’s clients, the district court dismissed a relator-initiated suit on ground that the FCA’s qui tam provisions violate Article II of the U.S. Constitution. 

The case originated from a lawsuit filed by physician Clarissa Zafirov, who alleged that her former employer, Florida Medical Associates, and other defendants engaged in fraudulent practices to inflate Medicare reimbursements. The government declined to intervene in the suit, and so Zafirov litigated the case on her own. In response, Foley filed in the district court a motion for judgment on the pleadings, arguing that the qui tam provisions empower relators to wield significant executive authority without being duly appointed as officers of the United States, violating the Take Care Clause, the Vesting Clause, and the Appointments Clause of Article II of the U.S. Constitution.

On September 30, 2024, U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida granted the motion, holding that the FCA’s qui tam provisions violate Article II of the Constitution. In her decision, Judge Mizelle emphasized that these provisions grant private individuals the power to exercise executive authority without accountability to the President, thereby contravening the Appointments Clause.²

The district court’s opinion drew national attention as the first decision to hold that the qui tam provisions are unconstitutional. Zafirov and the United States appealed the district court’s dismissal, and numerous amicus briefs were filed in support of both sides. 

On December 12, 2025, the Eleventh Circuit heard oral argument on the case. Judge Lisa Branch presided over a three-judge panel that included Eleventh Circuit Judge Robert Luck and, sitting by designation, Judge Federico A. Moreno of the United States District Court for the Southern District of Florida.

The impetus of the Zafirov constitutional challenge was Justice Thomas’s dissenting opinion highlighting the FCA’s constitutional infirmities in United States ex rel. Polansky v. Executive Health Res., Inc., 599 U.S. 419, 442 (2023) (J., Thomas, dissenting). Justices Kavanaugh and Barrett also joined a separate concurring opinion saying the Supreme Court should “consider the competing arguments on the Article II issue in an appropriate case.” Subsequently, in separate writings, two judges in the Fifth Circuit (Judge Duncan and Judge Ho) have called on their court to revisit prior precedent upholding the constitutionality of the FCA’s qui tam provisions. And a judge in the Southern District of Ohio stayed an FCA lawsuit and certified an interlocutory appeal to the Sixth Circuit on the constitutional question.

At oral argument at the Eleventh Circuit, the parties faced an active bench that probed all aspects of the parties’ arguments. As to the Appointments Clause, the panel explored whether the test for being an officer requires both (1) the exercise of substantial authority and (2) having a continuing office, in light of Justice Thomas’s dissent in Polansky, which only addressed the substantial authority requirement. Judge Luck also asked whether the panel should address the Vesting Clause and Take Care Clause arguments or instead remand those issues to the district court to decide in the first instance. In response, the government responded that the panel could reach those arguments because they are purely legal, not requiring factual development, and have been briefed by the parties. This raises the potential for an Eleventh Circuit decision that addresses the Vesting and Take Care Clauses as well as the Appointments Clause.

Judge Luck and Judge Branch also trained attention on the relevance of historical qui tam provisions and how those inform the constitutionality of the FCA’s qui tam provisions. Questions explored the significance of post-ratification qui tam history versus pre-ratification history. As to pre-ratification history, Judge Luck remarked that he agreed that Article II represented a departure from Parliamentary practice, as Justice Thomas noted in his Polansky dissent. As to post-ratification history, Defendants-Appellees argued that qui tam statutes enacted by the early Congresses prove too much (i.e., they cannot dictate the proper bounds of Article II), as some permitted even private enforcement of criminal penalties. Judge Luck probed that point with relators, commenting that it would be hard to defend private enforcement of criminal laws as consistent with Article II.

Judge Moreno asked fewer questions but brought his practical experience with qui tam suits in his role as a district court judge. He observed that, in his experience, relatively few qui tam suits are taken over by the government and instead, most are declined leaving relators to litigate them like any other civil case, even as those suits continue to proceed on behalf of the government. 

Following oral argument, the parties will await the Court’s opinion in the coming months. But regardless of the outcome, we anticipate that the Supreme Court will address the issues before long given Justice Thomas’s dissent in Polansky.

The Foley team representing the defendants in the district court and as co-counsel on appeal include partners Jason Mehta, Matthew Krueger, Michael Matthews, Joseph Swanson, Lauren Valiente, and associates Samantha Gerencir, Jerry Kerska, and David Wenthold.

Foley is here to help you address the short- and long-term impacts in the wake of change. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Government Enforcement Defense and Investigations Group or Health Care Practice Group with any questions.