Is the Qui Tam Provision of the False Claims Act Constitutional?

This article will provide an overview of the False Claims Act (“FCA”) and its qui tam provision and provide a general overview of United States ex rel. Zafirov v. Florida Medical Associates, LLC,[1] where the court found that the qui tam provision is unconstitutional under the U.S. Constitution.  GovSpring is available to help contractors and companies understand Zafirov’s potential implications. Click here to schedule a consultation or fill out our online contact form if you are in need of legal services.

What Is the Qui Tam Provision?

Qui tam pro domino rege quam pro se ipso in hac parte sequitur (“Who sues in this matter for the King as well as for himself.”)

The Department of Justice (“DOJ”) was formally created in 1870. In the years just prior to its creation, individual citizens played a key role in anti-fraud enforcement following the Civil War. This is due to the qui tam provisions of the False Claims Act of 1863. The FCA imposes liability for knowingly presenting a false or fraudulent request for payment. [2] If found liable, damages include a civil penalty adjusted for inflation and treble (triple) damages to the Government.[3]  Many of the DOJ’s investigations into fraud under the FCA and lawsuits arise from qui tam actions brought by relators, enabling the DOJ to obtain over $2.9 billion in settlements and judgments in FY2024.[4]

The FCA authorizes the DOJ to independently pursue perpetrators of fraud.[5] However, under its qui tam provision, a private individual (“relator”) may also bring a civil action. After assessing the merits of the lawsuit, the government may “elect” to “intervene” in the suit.[6] If the relator wins, they receive a portion of the proceeds of the action or settlement of the claim. If they win after the government decides not intervene, they receive a greater proportion of the award or settlement.[7]

False Claims Act’s Qui Tam Provision Unconstitutional: the Zafirov Decision & Appeal to Eleventh Circuit

On September 30, 2024, in United States ex rel. Zafirov v. Florida Medical Associates, LLC,[8] the Middle District of Florida found the qui tam provision of the False Claims Act unconstitutional. The court found that the suit was unconstitutional, since the relator was not appointed under the Appointments Clause of the Constitution.[9] The case is currently on appeal at the Eleventh Circuit, though it has been cited in at least one subsequent decision in the Middle District of Florida.[10]

In 2019, relator Clarissa Zafirov (“Zafirov”) sued her employer, Florida Medical Associates, LLC, and other defendants for FCA violations related to misrepresenting patient medical conditions to Medicare that she alleges harmed her.[11] Despite the government’s decision to not intervene in the action, Zafirov continued to litigate this action on behalf of the U.S. for the next five years.[12] Intervention only occurred to oppose the defendant’s argument that the FCA’s qui tam provision is unconstitutional under several clauses under the Constitution.[13]

Analysis of the Court

The court’s holding was focused on one portion of the defendants’ argument—that the FCA’s qui tam provision was unconstitutional based on the U.S. Constitution’s Appointments Clause. This clause created a two-tiered level of officers subject to the appointments clause: the first are officials directly nominated by the President and confirmed by the Senate (e.g., executive agency heads); the second are officials appointed by the President, executive agency heads, or the courts.[14] Given that a FCA relator possesses significant authority through civil enforcement on the U.S.’s behalf, all relators, including Zafirov, would be subject to the Appointments Clause.[15] Based on this theory, Zafirov’s lack of formal appointment prior to bringing this FCA action against the defendants would make her act unconstitutional.[16]

The court found that there is no qui tam exception under Article II of the U.S. Constitution that allows relators like Zafirov to qualify as an officer and properly bring suit; nor is there Supreme Court or Eleventh Circuit precedent that permits a relator-initiated FCA action.[17] Though various statutes in the early days of the U.S. contained similar elements as the FCA’s qui tam provision, the court found many of these statutes were later rescinded or sparsely utilized.[18] The FCA itself, when it was first enacted, saw few relators bring suits against perpetrators, and was largely dormant prior to the 1980’s.[19] Without any historical precedent or supporting case law, the court found no reason to diverge from the existing jurisprudence on Article II of the U.S. Constitution and the Appointments Clause.[20] Ruling in favor of the defendants, the judge dismissed the case with prejudice for Zafirov and called for the case to be closed.[21]

The court’s holding that the FCA’s qui tam provision is unconstitutional is not shared broadly across federal courts nationwide. Several cases in recent times have upheld the constitutionality of the qui tam provision.[22] This line of cases dates back to the Fifth Circuit’s decision in Riley v. St. Luke’s Episcopal Hosp.[23] There, the court held in-part that the FCA’s qui tam provision did not violate the Appointments Clause because a FCA relator could not be considered an officer of the U.S.[24] Relators, unlike proper officers, do not draw a government salary, are not required to establish their fitness for public office, and lack a specific tenure or duration.[25]

But the controversial decision here is not without any support from other case law. In United States, ex rel. Polansky v. Executive Health Resources Inc., Justice Clarence Thomas’s dissent contemplated if the qui tam provision in the FCA violated Article II of the U.S. Constitution.[26] Justices Brett Kavanaugh and Amy Comey Barrett agreed with this concept, articulating in a concurrence that “[t]he FCA’s qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.”[27]

It is unclear whether the holding in Zafirov will remain as the case awaits judgment on appeal before the Eleventh Circuit. One possibility is that the Eleventh Circuit will uphold the lower court’s ruling, creating a circuit split between the Fifth and Eleventh Circuits that may provide foundation for the Supreme Court to decide this matter if it reached them on the merits.

Upholding the lower court’s decision may also prove harmful for the Trump Administration’s intended use of the FCA. Attorney General Pam Bondi announced last month that the DOJ “strongly encourages” individuals to consider filing a qui tam action under the FCA against those utilizing federal funds to forward diversity policies and initiatives.[28] In her confirmation hearing before the Senate, Bondi also promised to defend the constitutionality of the FCA and the qui tam provision, citing the importance of the monies it returns to the U.S.[29] The potential ruling in favor of the lower court’s decision in Zafirov at the appellate level and above could deprive the Trump Administration of a critical tool to root out fraud, waste, and abuse.

Zafirov’s full impact will likely not be felt for some time, but it does indicate that the FCA may be redefined in a manner that favors federal contractors, who would no longer have to worry about resentful employees, former employees, or competitors initiating a qi tam suit.

This article was written in collaboration with Aaron Silva. Aaron is a 3L graduating from George Washington University Law School with a focus on Public Procurement.

[1] 751 F. Supp. 3d 1293 (M.D. Fla. 2024).

[2] The Dep’t of Just., The False Claims Act, (Jan. 15, 2025), https://www.justice.gov/civil/false-claims-act; See also 31 U.S.C. § 3729(a)(1)(A)-(B) (2009).

[3] 31 U.S.C. § 3729(a)(1) (2009).

[4] The Dep’t of Just., supra note 4.

[5] The Dep’t of Just., supra note 4.

[6] 31 U.S.C. § 3730(b)(1) and (5) (2022).

[7] 31 U.S.C. § 3730(d)(1)-(2) (2022).

[8] 751 F. Supp. 3d 1293 (M.D. Fla. 2024).

[9] Id. at 1300.

[10] United States of America  ex rel. Sean Gose  v. Native American Services Corporation & Great American Insurance Group, Inc., No. 8:16-CV-03411-KKM-AEP, 2025 WL 1531137 (M.D. Fla. May 29, 2025)

[11] See United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293, 1303 (M.D. Fla. 2024)

[12] Id.

[13] Id.

[14] U.S. Const. art. II, § 2, cl. 2; See also 751 F. Supp. 3d at 1306.

[15] 751 F. Supp. 3d at 1307.

[16] Id. at 1324.

[17] Id. at 1318.

[18] Id. at 1321.

[19] Id.

[20] Id. at 1322.

[21] Id. at 1324.

[22] See United States ex rel. Lagatta v. Reditus Laboratories, LLC, No. 1:22-CV-01203-SLD-JEH, 2024 WL 4351862 (C.D. Ill. Sept. 30, 2024). See also United States ex rel. Wallace v. Exactech, Inc., 703 F. Supp. 3d 1356 (N.D. Ala. 2023); United States ex rel. Miller v. ManPow, LLC, No. 2:21-cv-05418-VAP-ADSx, 2023 WL 8290402, at 1 (C.D. Cal. Aug. 30, 2023); United States ex rel. Thomas v. Care, No. CV-22-00512-PHX-JAT, 2023 WL 7413669, at 4 (D. Ariz. Nov. 9, 2023); United States ex rel. CLJ, LLC v. Halickman, No. 20-cv-80645, 2024 WL 3332055, at 21 n. 5 (S.D. Fla. June 14, 2024); United States ex rel. Butler v. Shikara, 2024 WL 4354807, at 10-13 (S.D. Fla. Sept. 6, 2024).

[23] 252 F.3d 749 (5th Cir. 2001).

[24] Id. at 758.

[25] Id.

[26] United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 451 (2023).

[27] Id. at 442.

[28] The Dep’t of Just., Justice Department Establishes Civil Rights Fraud Initiative, (May 19, 2025), https://www.justice.gov/opa/pr/justice-department-establishes-civil-rights-fraud-initiative.

[29] The Anti-Fraud Coalition, STATEMENT: Bondi Vows to Uphold the False Claims Act During Senate Confirmation, (Jan. 16, 2025), https://www.taf.org/statement-bondi-vows-to-uphold-the-false-claims-act-during-senate-confirmation/.