On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit issued its opinion in United States ex rel. Zafirov v. Florida Medical Associates, LLC, one of several closely watched False Claims Act (FCA) cases involving challenges to the constitutionality of the FCA’s whistleblower (or qui tam) provisions. The FCA prohibits, among other things, submitting false or fraudulent claims for federal funds. The FCA’s qui tam provisions allow private whistleblowers to file civil lawsuits on behalf of the United States — and collect a portion of any financial recoveries — for violations of the statute.
Renewed challenges to the constitutionality of the qui tam provisions gained traction in recent years after the Supreme Court and federal appellate courts raised questions about whether the provisions violate Article II of the Constitution. For example, in a 2025 case, Wisconsin Bell, Inc. v. United States ex rel. Health, Justice Kavanaugh wrote a concurring opinion, joined by Justice Thomas, in which he opined that the FCA’s “qui tam provisions raise substantial constitutional questions under Article II” and that “in an appropriate case, the Court should consider the competing arguments on the Article II issue.” The Article II challenges include:
- The Appointments Clause. Critics argue that under the FCA’s qui tam provisions, private whistleblowers act as “Officers of the United States” in violation of Article II’s appointment requirements.
- The Vesting Clause. Critics argue that the FCA’s qui tam provisions allow private whistleblowers to wield core executive authority vested in the President under Article II.
- The Take Care Clause. Critics argue that the FCA’s qui tam provisions allow private whistleblowers to exercise enforcement discretion in violation of the constitutional mandate, vested in the President under Article II, to “take care that the laws be faithfully executed.”
In late 2024, the federal trial court in Zafirov dismissed a whistleblower case by holding that the FCA’s qui tam provisions were unconstitutional under Article II’s Appointments Clause. The U.S. Court of Appeals for the Eleventh Circuit vacated that ruling in an opinion issued on September 1, 2026. The Eleventh Circuit held that, among other things, private FCA whistleblowers do not “occupy a ‘continuing’ position established by law” to qualify as “Officers of the United States” that require appointment under Article II. The court reasoned that whistleblowers occupy temporary positions that conclude based on the government’s decision-making and the outcomes of specific litigation.
Notably, the Eleventh Circuit ruled only on the narrow question of whether the FCA’s qui tam provisions violate Article II’s Appointments Clause; the court did not reach constitutional challenges under the Vesting and Take Care Clauses. Challenges under those Article II clauses remain subject to potential appellate review in a case pending in the U.S. Court of Appeals for the Third Circuit, United States ex rel. Penelow, et al. v. Janssen Products, LP. Warner attorneys have decades of deep experience in FCA investigations and litigation. We will monitor these cases for a potential circuit split and Supreme Court review. Please contact Adam Townshend, Madelaine Lane, or your Warner attorney with questions.
