ZAFIrov: QUI TAm SUrvIveS, ArTICle II DebATe remAInS
Health Care Law Section Co-Chairs: Blayne Miley – Moffitt Cancer Center & Jessica Andrews – Johnson Pope Bokor Ruppel Burns
The court reaffirmed the FCA’ s structure, including liability for knowingly making or using materially false records... It permits private relators to sue“ for the person and for the United States Government.”
The Eleventh Circuit’ s Reprieve
The Eleventh Circuit’ s September 1, 2026, decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC gives the False Claims Act’ s qui tam bar a reprieve. The court held that qui tam relators are not“ officers of the United States” because they do not occupy a continuing position established by law. 1 The decision vacated Judge Kathryn Kimball Mizelle’ s dismissal and keeps qui tam alive in the Eleventh Circuit, for now.
In my earlier article,“ A New Rx for Qui Tam,” I considered what might happen if Judge Mizelle’ s Appointments Clause ruling stood. The district court had reasoned that relators exercise significant federal authority and occupy a continuing“ office of relator.” 2 The Eleventh Circuit rejected that premise, emphasizing that there is no“ office of relator” in the FCA or any other law, and holding that relators do not occupy a continuing position subject to the Appointments Clause.
Why Healthcare Lawyers Should Care
For fraud enforcement, the effect is immediate. The court reaffirmed the FCA’ s structure, including liability for knowingly making or using materially false records. 31 U. S. C. § 3729( a)( 1)( A)-( B).
It permits private relators to sue“ for the person and for the United States Government.” Relators therefore remain important sources of Medicare and Medicaid fraud enforcement.
What Happens Next
Zafirov did not end the Article II debate. The Eleventh Circuit addressed only the Appointments Clause and remanded the Take Care Clause and Vesting Clause arguments to the district court.
The Take Care Clause question is whether the Executive Branch retains sufficient supervision and control over qui tam litigation when DOJ declines to intervene. The Eleventh Circuit noted DOJ’ s statutory tools: it receives the complaint under seal, may intervene, may later intervene for good cause, and may seek dismissal over the relator’ s objection. The government receives substantial deference in all but the most exceptional cases. 3
The Vesting Clause presents a different question: whether private relators may exercise executive enforcement authority on behalf of the United States when the Constitution vests executive power in the President. 4
The Takeaway The decision lessens the urgency of replacing qui tam with an
SEC-style reward model, but the debate remains. An HHC OIG-administered program could preserve whistleblower incentives by rewarding information rather than granting prosecutorial authority.
The remaining questions: The Take Care Clause asks whether the DOJ has enough control; the Vesting Clause asks whether private relators may exercise this enforcement authority at all.
For now, the prescription has changed. Qui tam is not constitutionally terminal in the Eleventh Circuit. However, the FCA’ s private-enforcement model remains under scrutiny. Healthcare lawyers should treat the ruling as a reprieve, not the final word. n
1
United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, No. 24-13581, slip op. at 2 – 3( 11th Cir. Sept. 1, 2026).
2
United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293, 1306 – 07( M. D. Fla. 2024).
3
Id. at 6-7; see 31 U. S. C. 3730( b)-( c). 4
Zafirov, slip op. at 4-7.
Author: Jo Ann Palchak – Sass Everhart & Silva
4 6 N O V- D E C 2 0 2 6 | H C B A L A W Y E R