Eleventh Circuit Oral Argument Recap: Constitutionality of FCA Qui Tam Provisions in United States ex rel. Zafirov v. Florida Medical Associates, LLC

The Eleventh Circuit heard oral argument in United States ex rel. Clarissa Zafirov v. Florida Medical Associates, LLC, a closely watched case that places the False Claims Act’s qui tam framework—and the role of private relators—under constitutional scrutiny. The panel engaged extensively on the scope of authority Congress has vested in relators, the degree of Executive Branch control required by Article II, and how historical practice bears on the analysis. 

Core Issue: How Much “Executive” Authority Do Relators Exercise?

A central line of questioning examined whether relators wield “significant authority” on behalf of the United States or, as relator’s counsel argued, comparatively little. Relator’s counsel emphasized that relators cannot direct investigations, marshal government resources, or dictate post-investigation outcomes, underscoring that they do not function as government officers. The amici supporting the defense pressed the opposing view, characterizing relators as unaccountable private bounty hunters litigating in the government’s name. 

One judge pushed on the practical consequences: relators have the statutory power to initiate suit on behalf of the United States, and those filings require government investigation. That combination, the judge observed, seems to amount to significant authority.

The Polansky Cue and Appointments/Take Care Questions

The panel also probed Justice Thomas’s dissenting opinion in United States ex rel. Polansky v. Executive Health Resources, Inc., in which he initially questioned the constitutionality of the FCA’s qui tam provisions. The Eleventh Circuit panel asked how Thomas’s comments should be read, including whether his focus left open separate and additional Appointments Clause considerations. Not surprisingly, no advocate was willing to definitively assert how exactly to interpret Justice Thomas’s observations. 

Practical Takeaways for FCA Defendants and Relators

The argument reflected a court keenly focused on first principles—who may exercise federal law-enforcement power and on what terms. For any party with potential FCA exposure, a decision that narrows or conditions qui tam authority could reshape litigation dynamics, including intervention strategy, dismissal authority, and the leverage relators wield pre-intervention. Conversely, a decision affirming the constitutionality of the FCA’s qui tam framework—especially if anchored in historical practice—may reinforce the status quo but could also invite closer scrutiny of government oversight mechanisms in future cases.

We will continue to monitor the Eleventh Circuit’s decision and any subsequent developments, including petitions for en banc or Supreme Court review, given the case’s potential to reframe qui tam enforcement in FCA matters.