These questions come from compliance officers, GRC directors, and legal teams who've been closely monitoring constitutional challenges to the False Claims Act's qui tam provisions in federal courts. The 11th Circuit's September ruling in United States ex rel. Zafirov v. Florida Medical Associates, LLC upheld qui tam's constitutionality on narrow grounds, but it didn't settle the broader Article II debate. Meanwhile, relators filed 1,297 qui tam suits last year, a 32% increase over the prior record, and the DOJ recovered $6.8 billion through the FCA in FY 2025, with more than $5.7 billion from healthcare alone.
Here's what compliance teams are asking right now and what the current state of qui tam litigation means for your program.
Should We Change Our Compliance Program Based on This Ruling?
No. Don't adjust your compliance framework based on constitutional uncertainty.
The 11th Circuit ruled that qui tam relators aren't "officers of the United States" because they don't occupy a continuing position established by law. This is a narrow holding on the Appointments Clause. The panel explicitly declined to address the Take Care Clause and Vesting Clause arguments, which went back to the district court. Even if the Supreme Court eventually limits qui tam provisions, the government can still bring direct FCA claims and seek treble damages and civil penalties.
Your compliance program exists to prevent, detect, and remediate potential violations before they become enforcement actions. That doesn't change based on who's allowed to prosecute the claim. If you're designing internal reporting, investigation protocols, or retaliation protection policies around the hope that qui tam might be struck down, you're building on sand.
We're Not in Healthcare. Should We Still Care About Qui Tam Exposure?
Yes, and your exposure is growing.
The DOJ has encouraged whistleblower filings in cybersecurity, customs and tariffs, and DEI. If you're a defense contractor self-certifying under CMMC, an importer navigating tariff classifications, or a federal contractor making representations about workforce practices, you're in scope.
The Zafirov ruling doesn't shift the risk calculus differently across sectors. The constitutional questions apply to the qui tam mechanism itself, not to sector-specific FCA theories. What matters is whether you're making material representations to the government that could form the basis of an FCA claim. If you're certifying compliance with contract terms, cybersecurity standards, or trade regulations, you have qui tam exposure regardless of what the 11th Circuit said about the Appointments Clause.
If We're Already Defending a Qui Tam Suit, What Changed?
Not much for your defense strategy, but preserve your constitutional arguments anyway.
The 11th Circuit's holding aligns with the 5th, 6th, 9th, and 10th Circuits in rejecting Appointments Clause challenges. But companies defending qui tam cases should continue to assert Article II objections in pleadings and motions practice. The goal is to build a record concerning the government's actual role in the matter.
Your day-to-day defense still relies on traditional challenges: Rule 9(b) particularity, public disclosure and original source bars, materiality, scienter, causation, and damages. The constitutional theories are about preserving arguments for eventual Supreme Court review, not about winning dismissal at the district court level today.
The 11th Circuit remanded the Take Care Clause and Vesting Clause arguments for the district court to consider. Those structural Article II theories may be more viable paths than the Appointments Clause challenge, particularly given signals from Justices Thomas, Kavanaugh, and Barrett that they view the FCA's qui tam structure as raising substantial constitutional questions.
What Should We Be Watching Over the Next Year?
Monitor three things: the 3rd Circuit's resolution of Janssen Products LP, developments in the 5th Circuit, and any new petitions for certiorari.
The Janssen case involves a $1.6 billion qui tam judgment being challenged in part on constitutional grounds. It's currently referred to a special mediator, but the 3rd Circuit's eventual resolution will matter. The 5th Circuit has seen several judges write separately to express skepticism of qui tam provisions' constitutionality, making it a potential source of a circuit split.
The Supreme Court denied certiorari in Eli Lilly in May 2026, but that won't be the last effort. The denial may have been procedural, Eli Lilly didn't raise the Article II question until late in the appellate process. Given the judicial attention across the Supreme Court and circuit level, eventual Supreme Court resolution seems possible, particularly if a circuit split emerges.
Don't adjust your compliance program based on speculation about what the Supreme Court might do. Adjust it based on the current enforcement environment, which shows record qui tam filings and expanding FCA theories.
Does This Ruling Mean We Can Relax Our Whistleblower Protections?
Absolutely not. Retaliation protection remains a core compliance function regardless of qui tam's constitutional status.
Observers often note that relators go external only after internal reporting fails, gets ignored, or produces retaliation. The constitutional debate is about who may prosecute FCA claims on the government's behalf, not whether companies must maintain effective controls in the first instance.
Retaliation is unlawful under the FCA. Your program should provide avenues for employees to report possible misconduct that are anonymous and that trigger investigations independent of those making employment decisions. Even if the qui tam provisions were struck down, federal and state governments have significant resources to investigate FCA violations. The DOJ increasingly rewards self-reporting and remediation. Good compliance programs mitigate risks and create opportunities in that environment.
How Do We Build a Qui Tam-Resistant Compliance Program Right Now?
Focus on three areas: internal reporting mechanisms, investigation protocols, and documentation of government interactions.
First, your Whistleblower Hotline should be genuinely anonymous and should route to investigators who don't report to the business units under review. Train employees on what constitutes a potential FCA violation, particularly if you're in sectors where the DOJ is expanding qui tam theories.
Second, document your investigation protocols and follow them consistently. If an internal report surfaces a potential billing error, certification inaccuracy, or misrepresentation to the government, investigate promptly and document your findings. Self-reporting to the government may be appropriate depending on the severity and scope.
Third, if you're making certifications to the government, whether about cybersecurity controls, tariff classifications, or contract compliance, document the basis for those certifications. If a relator later claims you knowingly submitted false claims, your contemporaneous documentation of the certification process becomes your defense on scienter.
The FCA, as currently construed and litigated, remains intact. It would be a mistake to relax compliance, disclosure, investigation, or remediation programs based on constitutional uncertainty. The risk that internal reporting failures will turn an employment issue into an enforcement problem is real, and it won't disappear even if the Supreme Court eventually limits qui tam.
Where to Go for More
If you're defending an active qui tam suit, work with counsel to preserve Article II arguments in your pleadings while pursuing traditional defenses. If you're building or updating your compliance program, focus on the fundamentals: effective internal reporting, prompt investigation, retaliation protection, and documentation of government-facing certifications. The constitutional debate will continue, but your compliance obligations won't wait for the Supreme Court to resolve it.
