In 2019, Dr. Clarissa Zafirov brought a qui tam action under the False Claims Sct (“FCA”) on behalf of the United States against her employer and related entities, Florida Medical Associates (d/b/a VipCare); Physician Partners, LLC; Anion Technologies, LLC; Freedom Health, Inc.; and Optimum Healthcare, Inc. Zafirov alleged that the defendants knowingly submitted false diagnosis codes to receive more money than they were entitled to from Medicare, a federal health insurance program. The parties litigated the case for several years until February 2024, when the defendants moved for judgment on the pleadings or dismissal of the case.
The defendants argued that the qui tam provisions violated Article II’s (1) Appointments Clause because relators exercise significant federal authority in a continuing position without appointment by the President; (2) Take Care Clause because the President lacks sufficient supervision and control over relators who wield executive power; and (3) Vesting Clause because relators have the executive power to bring civil enforcement actions on behalf of the United States while the Constitution vests that power in the President alone. Although the United States declined to intervene in the case when it was first filed, it intervened after the defendants raised these constitutional challenges “for the limited purpose of defending the constitutionality of the qui tam provisions of the [FCA].”
The district court determined that the qui tam provisions violated the Appointments Clause, so it did not address the defendants’ Take Care Clause or Vesting Clause arguments.
False Claims Act (FCA)
The FCA imposes civil liability for certain deceptive practices involving government property, including “knowingly present[ing] . . . a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1)(A). Also liable are those who “knowingly make[] [or] use[] . . . a false record or statement material to a false or fraudulent claim.” § 3729(a)(1)(B). Each individual FCA violation carries a statutory penalty and treble damages. § 3729(a). The Attorney General can bring a civil action under the FCA. § 3730(a). But private parties called relators can also bring an action “for the person and for the United States Government” that is brought “in the name of the Government” through the qui tam provisions of the FCA. § 3730(b)(1). Various statutory mechanisms govern the respective roles of the relator and the government in qui tam actions. For example, when a relator first files a complaint, it remains under seal for at least sixty days while the government determines how it wants to proceed. § 3730(b)(2). Those sixty days are referred to as “the seal period.” During the seal period, the government has two options: it can intervene and proceed with the action itself, or it can
decline to intervene and allow the relator to proceed. 31 U.S.C. § 3730(b)(4)(A)–(B). If the government intervenes—then, or later upon a showing of good cause—it may also dismiss the action over the relator’s objection. § 3730(c)(2)(A), (c)(3). While dismissal must be approved by the court, the court applies the typical voluntary dismissal rule (Federal Rule of Civil Procedure 41) and must provide the government “substantial deference” and grant dismissal in “all but the most exceptional cases.”
Relators are entitled to compensation when they are involved in a successful FCA qui tam suit. 31 U.S.C. § 3730(d). The relator can receive a contingent fee of up to 30% of the proceeds of the case or settlement of the action, with the exact award based on whether the government intervened and on the extent of the relator’s contributions to prosecuting the action.
The United States Court of Appeals for the Eleventh Circuit stated in its September 1, 2026 Opinion: “Zafirov and the United States are correct that relators do not hold a continuing position, which is sufficient to determine that relators are not officers who must be presidentially appointed … Zafirov and the United States argue that relators do not occupy a continuing position because (1) any position they have is temporary; (2) they do not receive a continuing emolument; and (3) their duties are personal because if the relator drops out of a case, nobody can replace him … a relator’s intermittent, nonpermanent tenure tends to show that he does not hold a continuing position … a relator does not have a permanent tenure, and he therefore does not have a position with duration that makes him an officer; a relator’s duties do not “extend[] over any case further than as he is selected to act” when the government declines to intervene … Zafirov and the United States are correct: relators do not hold a continuing position.”
“Like a relator’s intermittent tenure, his lack of a continuing emolument counsels finding that he is not an officer of the United States.”
“A relator assumes a duty to litigate each case that he files, and his role in the case cannot be assumed by anybody else (except for the Attorney General when the government intervenes). See 31 U.S.C. § 3730(b)(5); id. § 3730(b)(4)(A), (c)(1) … The fact that a relator’s duties are personal and cannot be assumed by others points to the position of relator not being a continuing one … In sum, we find that, while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position.”
“Because we conclude that relators do not occupy a continuing position, we hold that relators are not officers of the United States subject to the Appointments Clause.”
“The qui tam provisions of the FCA do not violate the Appointments Clause. Accordingly, we vacate the district court’s order dismissing this case and remand for the district court to evaluate the defendants’ Take Care Clause and Vesting Clause arguments.”
Source United States of America v. Zafirov, 24-13581.
If you have information regarding false claims having been submitted to Medicare and the information is not publicly known and no actions have been taken by the government with regard to recovering the false claims, you should promptly consult with a False Claims Act attorney (also known as qui tam attorneys) in your U.S. state who may investigate the basis of your False Claims Act allegations and who may also assist you in bringing a qui tam lawsuit on behalf of the United States, if appropriate, for which you may be entitled to receive a portion of the recovery received by the U.S. government.
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