Zafirov v. Florida Medical Associates: What the FCA Constitutional Challenge Means for Healthcare Fraud Litigation

The Eleventh Circuit recently heard oral argument in a case that has the healthcare fraud litigation world paying close attention. In Zafirov v. Florida Medical Associates, the court is considering whether the False Claims Act’s qui tam provisions—the mechanism that allows private whistleblowers to sue on behalf of the federal government—pass constitutional muster under Article II.

The Constitutional Question

The FCA has long permitted private individuals, known as relators, to file fraud claims against entities accused of defrauding federal programs. When the government declines to take over a case, relators can continue prosecuting it themselves. A Florida district court found this arrangement problematic, ruling that relators effectively exercise executive branch authority without the appointment process the Constitution requires.

That decision marked a departure from every prior appellate ruling on the issue. The Eleventh Circuit is now deciding whether it stands.

Where the Argument Landed

The panel spent considerable time on a threshold question: do relators wield enough governmental power to trigger constitutional concerns in the first place? One side argues that relators operate with significant constraints—they cannot direct federal resources, compel agency action, or establish binding legal precedent for the United States. The other side points out that filing a qui tam complaint sets mandatory government processes in motion, which itself represents a meaningful exercise of authority.

The judges also questioned whether founding-era qui tam statutes provide useful guidance. Those early laws allowed private parties to pursue criminal penalties—something no one argues is permissible today. If that line exists, it raises the question of where exactly it should be drawn for civil enforcement.

The Road Ahead

Whatever the Eleventh Circuit decides, this issue appears headed for further review. Other circuits have similar challenges pending, and several Supreme Court justices have indicated openness to reconsidering the constitutionality of qui tam enforcement. A circuit split—or a ruling that breaks from decades of precedent—could accelerate that timeline.

In the meantime, FCA cases continue to move forward. But the underlying framework may be less settled than it appeared a year ago.

Why This Matters

Law firms need consultants who follow the developments, understand the implications, and are ready to support the work.

We’re litigation consultants, not attorneys. We don’t interpret constitutional law or predict how courts will rule. But the work we do—statistical sampling review, methodology challenges, damages quantification, and identifying the patterns that support or undermine a legal theory—sits at the center of FCA matters.

We don’t deliver data dumps. We understand the landscape and stay ready to move.