You may have heard the phrase qui tam and wondered what it means. Or you may already know exactly what it means — because you’ve witnessed your employer defrauding Medicare, falsifying government contracts, or mislabeling imported goods — and you’ve been quietly researching whether to blow the whistle.

Either way, there is a legal earthquake quietly forming in the federal court system that every potential whistleblower needs to know about. It’s called the Zafirov case, and it has put the very foundation of the False Claims Act’s whistleblower mechanism under constitutional challenge for the first time in the modern era.

This article explains what qui tam is, what the Zafirov ruling says, where the case stands today, and — most importantly — what it means for you if you are considering filing a case.

First Things First: What Is a Qui Tam Lawsuit?

The term qui tam comes from a Latin phrase meaning ‘who as well’ — as in, a private citizen suing ‘as well as’ the government. Under the False Claims Act (FCA), any person who has inside knowledge of fraud against the United States government can file a lawsuit on the government’s behalf. That person is called a relator.

If the lawsuit succeeds, the relator receives between 15% and 30% of whatever the government recovers. In big cases, that can be tens of millions of dollars. The False Claims Act is the government’s single most powerful anti-fraud tool, and private whistleblowers drive the vast majority of its recoveries.

The qui tam system is not new. Congress enacted the original False Claims Act during the Civil War — 1863 — specifically to enlist private citizens in catching fraudsters who were selling the Union Army rotten food, shoddy equipment, and lame horses. It has recovered over $75 billion from fraudsters since its 1986 modernization alone.

Until September 2024, no federal court had ever held this system unconstitutional. Then Dr. Clarissa Zafirov came along.

Who Is Clarissa Zafirov — and What Did She Do?

Dr. Clarissa Zafirov is a physician. In May 2019, she filed a qui tam lawsuit under the FCA against her employer, Florida Medical Associates, LLC, and related managed care organizations. Her claim: that the defendants were systematically misrepresenting patients’ medical diagnoses to Medicare in order to inflate the risk adjustment scores that drive capitated payments from the Centers for Medicare and Medicaid Services. In plain English — they were lying about how sick patients were, so Medicare would pay them more.

The U.S. Department of Justice reviewed the case and declined to intervene. That happens in many qui tam cases — the government doesn’t have the resources to take every case, and it doesn’t have to. Under the FCA, a relator can proceed on their own even when the government declines. Zafirov did exactly that.

Then, years into the litigation — after Zafirov had chosen which defendants to sue, which legal theories to raise, which motions to file, and which evidence to seek — the defendants made a dramatic move. They filed a motion for judgment on the pleadings, arguing that the entire qui tam system is unconstitutional.

They pointed to a 2023 Supreme Court dissent by Justice Clarence Thomas in a case called United States ex rel. Polansky v. Executive Health Resources, Inc. Thomas had written — and Justices Kavanaugh and Barrett had separately noted agreement — that the FCA’s qui tam provisions raise serious constitutional questions that deserved examination in an appropriate case.

Zafirov’s case became that case.

What Did Judge Mizelle Actually Rule?

 Judge Mizelle — a former law clerk to Justice Thomas — did something no federal judge had done before in the modern era: she threw out the entire qui tam case on constitutional grounds.

Her reasoning centered on Article II of the Constitution, specifically the Appointments Clause, which governs who may exercise executive power on behalf of the United States.

The Core Argument: Relators as Unappointed Officers

Under the Appointments Clause, anyone who exercises ‘significant authority’ pursuant to federal law and occupies a ‘continuing position established by law’ is an ‘Officer of the United States.’ Officers must be properly appointed — either by the President (with Senate confirmation for principal officers) or by a department head or court (for inferior officers). You cannot simply anoint yourself an officer by filing a lawsuit.

Judge Mizelle concluded that FCA relators do exactly that. When Zafirov filed her qui tam case, she unilaterally took on the role of litigating on behalf of the United States — choosing defendants, legal theories, evidence, and arguments — despite the fact that ‘no one — not the President, not a department head, and not a court of law — appointed Zafirov to the office of relator.’ The court found that this self-appointment violated the Constitution.

What About the Government’s Control?

Supporters of qui tam argued that the government retains meaningful control over relators through the FCA’s built-in mechanisms: the DOJ must investigate all filed cases, the government can intervene at any time, and it can move to dismiss a case even over the relator’s objection. The 2023 Polansky majority ruling had actually reinforced this last point.

Judge Mizelle acknowledged these controls but found them insufficient. The government’s ability to dismiss a case after the fact does not cure the problem, she reasoned — the relator still wields significant executive authority in the meantime, conducting discovery, filing motions, and controlling the litigation in the name of the United States.

Every Other Court Has Disagreed — Here’s the Scorecard

The Zafirov ruling is a genuine outlier. Every appellate court that has examined the constitutionality of the FCA’s qui tam provisions — the Fifth, Sixth, Ninth, and Tenth Circuits — has upheld them. And since Zafirov was decided in September 2024, every other district court to consider the constitutional question on the merits has rejected the Article II challenge. That includes courts within the same Middle District of Florida where Zafirov was decided.

Green = upheld constitutionality  |  Yellow = pending  |  Red = found unconstitutional

 The key question is whether the Eleventh Circuit — whose decision will directly bind all federal courts in Florida, Georgia, and Alabama — will join the national consensus or break with it.

What Happened at the Eleventh Circuit — and Why It Sounded Serious

On December 12, 2025, a three-judge panel of the Eleventh Circuit heard oral argument in Zafirov (Case No. 24-13581). The panel consisted of Circuit Judge Robert J. Luck, Circuit Judge Elizabeth L. Branch, and Senior District Judge Federico A. Moreno sitting by designation.

Observers who attended described the argument as closely contested — and notably different from what many expected. Rather than treating the district court’s ruling as an obvious overreach that deserved a quick reversal, the Eleventh Circuit panel pressed all four sets of advocates hard.

What the Panel Focused On

Judge Branch specifically observed that the circuit decisions upholding qui tam were not recent, and that several Supreme Court Justices — already aware of those decisions — believe the Article II questions should be revisited. That observation is significant: it suggests the panel was not simply deferring to precedent.

Judge Moreno, notably, observed that upholding the Constitution sometimes creates ‘chaos’ — an acknowledgment of the enormous disruption an unconstitutionality ruling would cause for the thousands of pending qui tam cases nationwide.

As of July 2026, the Eleventh Circuit has not issued its decision. The ruling is expected at any time.

Complete Case Timeline

Three Possible Outcomes — and What Each Means for Whistleblowers

Scenario 1: Eleventh Circuit Reverses — Qui Tam Is Constitutional (Most Likely)

Scenario 2: Eleventh Circuit Affirms — Qui Tam Is Unconstitutional (Less Likely, Seismic)

Scenario 3: A Narrow Middle Ground — Partial Restrictions on Relator Authority

What Should You Do Right Now If You’re Considering a Qui Tam Case?

Here is the honest answer: the uncertainty in Zafirov is real, but it is not a reason to wait. In fact, the opposite may be true. Here is why.

1. The FCA Has Not Been Struck Down — Anywhere

The only court that has held qui tam unconstitutional is one district court in Florida — and even within that district, another judge has rejected the same argument. The law remains fully in force in 49 states. Qui tam cases are being filed, litigated, and settled every single week. DOJ reported 1,297 new qui tam filings in FY2025 — a record.

2. Timing Matters More Than You Think

The False Claims Act has a statute of limitations — generally six years from the date of the violation, or up to ten years in some circumstances. Every day you wait is a day that limitations clock ticks. Evidence gets destroyed. Witnesses leave. Co-relators file first and claim priority under the FCA’s first-to-file rule.

3. Even If Qui Tam Is Restricted, Your Information Still Has Value

If the Supreme Court ultimately restricts the qui tam mechanism, the DOJ would almost certainly increase its own direct enforcement activity. Whistleblowers who have already provided information to an attorney — and potentially to the government through other channels — would be in a far better position to benefit from that enforcement than those who waited.

4. Cases Filed Under the Current Rules May Be Grandfathered

Courts generally do not apply new constitutional rulings retroactively in ways that extinguish already-filed cases. If you file now and the law changes later, your case stands on stronger ground than a case filed after any adverse ruling.

5. You Need Legal Counsel Before You Do Anything Else

Qui tam cases are complex. They are filed under seal, meaning no one — not your employer, not the press, not the public — sees the complaint until the government investigates and decides whether to intervene. The seal process itself requires the assistance of a qualified attorney. And the constitutional questions raised by Zafirov make it even more critical that you understand exactly how to structure your disclosure.

Frequently Asked Questions

Q: Is the FCA unconstitutional right now?

No. The False Claims Act itself remains fully valid law. The Zafirov ruling held that the qui tam provisions of the FCA — the mechanism allowing private citizens to file on the government’s behalf — may violate Article II in declined cases. Even that ruling only binds the parties in that specific case. Qui tam cases are being filed and litigated everywhere in the country.

Q: Does this affect SEC and CFTC whistleblower programs?

No. The Zafirov challenge is specific to the FCA’s qui tam provisions. The SEC Whistleblower Program under Dodd-Frank, the CFTC Whistleblower Program, the IRS Whistleblower Program, and the various state-level whistleblower programs are entirely separate legal frameworks and are not affected by Zafirov.

Q: What happens to qui tam cases already filed in Florida?

Cases already filed in the Middle District of Florida are navigating this in real time. Some defendants are raising the Zafirov argument to challenge relator participation even in cases where the government has intervened. The Eleventh Circuit’s upcoming ruling will directly govern how those cases proceed.

Q: Should I wait for the Eleventh Circuit to rule before I file?

Generally, no. Waiting creates statute of limitations risk, first-to-file risk, and evidence preservation risk. An experienced whistleblower attorney can help you file under seal now while the constitutional question is still being litigated. If the law changes adversely after your case is already filed, you are in a much better legal position than someone who waited.

Q: What if the Supreme Court ultimately strikes down qui tam?

Congress would almost certainly act. The FCA has bipartisan support — Senator Chuck Grassley, who modernized the law in 1986, personally filed an amicus brief in Zafirov urging the Eleventh Circuit to uphold constitutionality. Congress could restructure the qui tam process to require pre-suit DOJ approval or other mechanisms that pass constitutional muster while preserving whistleblower incentives.

Q: Who are the Supreme Court justices who have expressed concern about qui tam?

In the 2023 Polansky case, Justice Thomas wrote a dissent questioning the constitutionality of qui tam under Article II. Justices Kavanaugh and Barrett wrote separately to note that the arguments against qui tam are ‘substantial’ and should be considered in an appropriate case. That’s three of nine justices — enough to grant certiorari. The remaining six justices have not stated a position on the constitutional question.

The Bigger Picture: Why This Case Matters Beyond One Lawsuit

The FCA qui tam mechanism has recovered more than $75 billion for American taxpayers since 1986. Healthcare fraud — Medicare and Medicaid billing fraud — accounts for the single largest share of those recoveries, and the vast majority of healthcare fraud cases are brought by private whistleblowers, not by the government on its own.

If qui tam were eliminated or severely restricted, the most direct consequence would be felt by patients. Medicare and Medicaid fraud drives up costs for everyone. Private whistleblowers — nurses, billing staff, physicians, compliance officers — are often the only people who see the fraud happening from the inside. The government, without whistleblowers, would catch a fraction of what currently gets caught.

This is precisely why DOJ filed its own brief urging the Eleventh Circuit to reverse Zafirov. The Trump administration — despite its stated interest in reducing government — recognized that the FCA is a revenue generator for the federal treasury. In the first half of FY2025 alone, the FCA returned approximately $3.8 billion to the government. DOJ has no interest in killing that engine.

Zafirov may ultimately be remembered as a case that stress-tested the FCA and came out the other side. Or it may be the first step toward a Supreme Court case that reshapes one of America’s most important anti-fraud laws. Either way, whistleblowers who come forward now — with solid evidence and experienced legal counsel — are positioned to benefit regardless of how the constitutional dust settles.