Zafirov: The Decision That Declared The FCA’s Qui Tam Provision Unconstitutional

For decades, constitutional attacks on the False Claims Act’s qui tam mechanism have been the legal equivalent of a Hail Mary, as our Hillsboro, OR False Claims Act lawyer well knows. Defendants would raise Article II arguments; courts would reject them; litigation would return to Rule 9(b), materiality, and damages.

United States ex rel. Zafirov v. Florida Medical Associates, LLC changed the tone—because a federal judge in the Middle District of Florida did what most courts have refused to do: she held the FCA’s qui tam provision unconstitutional and dismissed the case.

Whether Zafirov becomes the beginning of the end for relator-driven FCA enforcement or remains an outlier depends on what happens on appeal. But even as a district court decision, it is already reshaping how litigants brief and posture constitutional issues in FCA cases.

The Big Move: Treating The Relator As An “Officer” Exercising Executive Power

Zafirov’s core constitutional move is to recharacterize what a relator is doing.

Instead of viewing a relator as a private plaintiff litigating a statutorily assigned claim (with the government having options to intervene, settle, or dismiss), the Zafirov court treated the relator as someone who “wields” executive power—because the relator litigates in the name of the United States to vindicate what the court described as public rights.

That framing matters because it sets up the Article II problems.

The Appointments Clause Problem (As Zafirov Sees It)

Under Zafirov, once you accept that a relator is exercising executive authority, you run into the Appointments Clause: principal and inferior “Officers of the United States” must be appointed in the constitutionally prescribed way.

The Zafirov decision reasoned that the relator’s role has features that look officer-like, including the ability to direct litigation on behalf of the United States (at least when DOJ declines to intervene), and treated the relator as occupying a position established by statute for the duration of the case.

From there, the conclusion is straightforward: relators aren’t appointed as Article II officers, so the qui tam device is unconstitutional.

The Take Care Clause And Vesting Clause: Not Enough Presidential Control

Zafirov also leans on the broader Article II idea that executive power is vested in the President, who must “take Care” that the laws be faithfully executed.

The FCA gives DOJ several levers even in a declined case—intervention, settlement authority, and dismissal authority. But Zafirov treated those levers as insufficient “control” to cure the structural problem once you characterize the relator as an executive actor rather than a private litigant.

In practical terms: if the relator is running litigation for the United States, and the Executive cannot supervise that relator like it supervises actual executive officers, Zafirov says the structure breaks Article II.

Why This Is A Big Deal (Even If It’s “Just” A District Court Case)

Zafirov is a big deal for two reasons.

First, it is a dispositive holding of unconstitutionality. Many earlier opinions discussed Article II concerns but stopped short of invalidating the mechanism outright. Zafirov did not hedge.

Second, it came from a court defendants already cite aggressively, and other courts now have to grapple with it. Even judges who disagree with the outcome can no longer ignore the argument. Zafirov has become the centerpiece of the modern constitutional challenge playbook.

The Counterpoint: Zafirov Is Still An Outlier

For all its force, Zafirov is not the consensus view.

Most courts to consider Article II challenges to qui tam actions have rejected them. Those courts tend to emphasize historical practice, the civil nature of FCA claims, and the significant degree of control the Executive Branch retains under the statute.

Zafirov departs from that approach by elevating the relator’s autonomy and minimizing the significance of DOJ’s statutory oversight tools. Whether that reframing is persuasive remains the central dispute.

The Appeal And What Comes Next

The appeal of Zafirov has already attracted outsized attention because the stakes are structural, not case-specific. A decision affirming Zafirov would not merely alter pleading standards or damages exposure. It would call into question the basic architecture of modern FCA enforcement.

For now, the decision’s legal force is limited to its own case. But its influence is broader. Litigants are citing it. Courts are addressing it. And the argument that once seemed fringe is now squarely in play.

Practical Takeaways For FCA Lawyers

For relator-side counsel:
Assume you will face an Article II challenge in any significant FCA case, particularly in healthcare matters. Be prepared to develop a record showing meaningful government oversight and to explain why relators are properly understood as private litigants, not executive officers.

For defense counsel:
Zafirov is your strongest authority for a structural constitutional challenge, but it remains an uphill argument outside its home court. If you raise it, do so early, preserve it carefully, and expect resistance.

For everyone else:
This is no longer a throwaway motion. Courts are taking the question seriously, even when they ultimately reject it.

Bottom Line

Zafirov matters because it attacks qui tam at the root. It holds that a relator exercises executive power without constitutional appointment and without sufficient presidential control, and therefore that the FCA’s qui tam provision cannot stand.

Whether Zafirov becomes a turning point or a historical footnote will depend on appellate review. But one thing is already clear: the constitutional debate over qui tam is no longer hypothetical. It is live, serious, and headed for higher courts. If you require assistance with a case, contact Whistleblower Law Partners today.