False Claims Act (FCA) Recent Developments: Constitutional Scrutiny Mounts For Relator-Based Actions

• Published date: 26 November 2025
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Compliance, Corporate and Company Law, Trials & Appeals & Compensation
• Law Firm: Benesch Friedlander Coplan & Aronoff LLP
• Author: Matthew David Ridings, Emily Wilbur and Ryan J. Levitt

Key Takeaways

• Federal courts are now split on whether FCA qui tam relators violate the Constitution's Appointments Clause, following Judge Mizelle's Zafirov decision, increasing the likelihood of Supreme Court review.
• If the qui tam provision is struck down, the volume and nature of FCA enforcement could shift substantially, reducing relator-driven cases and placing greater responsibility on the federal government.
• Companies should reassess FCA exposure, strengthen compliance controls and monitor pending appellate cases, as upcoming decisions could reshape how FCA matters are initiated and litigated.

I. Introduction

In a remarkable opinion, United States ex rel Zafirov v. Florida Medical Association LLC, 751 F. Supp. 3d 1293 (S.D. Fla. Sep. 30, 2024) (Mizzele, J.), a Southern District of Florida Court found the qui tam component of the False Claims Act unconstitutional. With the passage of over a year since that opinion issued, more district courts have had the opportunity to weigh in on this important question—one that could have seismic consequences for False Claims Act litigation. This client bulletin provides an overview of relevant cases, opinions and related analysis for companies and industries subject to potential allegations and litigation under this Act.

II. False Claims Act ("FCA") (31 U.S.C. §§ 3729 – 3733) Overview

Liability arises under the FCA when one knowingly submits or causes to submit false claims to the government.¹ The FCA not only allows the United States to pursue potential violators, but it also permits private citizens to file suits on behalf of the government.² Those claims are called "qui tam" suits and the private citizen is known as the relator.³

When our clients become aware that FCA allegations are being investigated against them, it raises concerns about civil liability and the prospect of significant damages inherent in claims of this nature. It often comes with the knowledge that a colleague or employee began this investigation and is in the role of the relator.

A qui tam case requires the relator to file the civil complaint under seal with the court and serve a copy of the complaint and a disclosure of material evidence to the Attorney General and the United States Attorney under Federal Rule of Civil Procedure 4.⁴ The government can then decide if it wants to intervene in the case, meaning the government will take ownership of the case from the relator.⁵ If the government does not intervene, the relator is responsible for the litigation.⁶

The Constitutional question presented is whether the qui tam provision of the FCA, which permits a private citizen to bring and litigate an FCA claim, violates the Appointments Clause of the Constitution. For purposes of the FCA, relators are "private Attorneys General" bringing claims on behalf of the government.⁷ Typically, the President of the United States nominates an individual to be the Attorney General and then the nominee must be confirmed by a majority vote of the Senate. As such, the appointment of the Attorney General falls under the Appointments Clause of the U.S. Constitution. The Appointment Clause is Article 2, Section 2, Clause 2, reading: "... [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." The Supreme Court has interpreted this clause as distinguishing between "principal officers," whom must be appointed by the President, and "inferior officers," who can be appointed by the President, the judiciary or department heads. Buckley v. Valeo, 424 U.S. 1, 132 (1976).

Given that FCA relators step into the shoes of the Attorney General when litigating alleged FCA violations, courts have begun to consider whether the qui tam provision of the FCA violates the Appointments Clause of the United States Constitution.

III. United States ex rel Zafirov v. Florida Medical Association LLC, 751 F. Supp. 3d 1293 (S.D. Fla. Sep. 30, 2024) (Mizzele, J.)

On September 30, 2024, United States District Judge Kathryn Kimball Mizelle, sitting in the Middle District of Florida, issued an opinion declaring the qui tam provision of the FCA an unconstitutional violation of the Appointments Clause.

In this case, the relator litigated an action on behalf of the United States for five years. Judge Mizelle issues three concluding opinions: "First, an FCA relator is an officer of the United States. Second, historical examples of qui tam provisions do not exempt an FCA relator from the Appointments Clause. Third, because [relator] is not constitutionally appointed, dismissal is the only permissible remedy."

Judge Mizelle concludes that a relator is an officer, not an employee, as the relator has civil enforcement authority on behalf of the United States. Initiating and litigating a lawsuit that often binds the federal government is a "significant authority pursuant to the laws of the United States" and is responsible for "vindicating public...