Key Takeaways

• The Eleventh Circuit held that qui tam relators under the False Claims Act are not “officers of the United States” subject to the Appointments Clause, joining the Fifth, Sixth, Ninth, and Tenth Circuits in upholding the constitutionality of the FCA’s whistleblower provisions.
• The Eleventh Circuit concluded that that qui tam relators do not occupy a “continuing position established by law” because their role is temporary, case-specific, personal to the individual relator, and compensated only through a contingent statutory fee rather than a regular government appropriation.
• Constitutional challenges to the FCA’s qui tam provisions are not over. The case has been remanded for the district court to consider whether qui tam relators violate Article II’s Take Care Clause and Vesting Clause by exercising executive power without sufficient presidential control.

In a much-anticipated False Claims Act (FCA) ruling, the Eleventh Circuit has joined every other circuit in considering the issue and holding that qui tam relators under the FCA are not “officers of the United States” subject to the Constitution’s Appointments Clause, thereby rejecting the constitutional challenge to the FCA’s qui tam provisions on that narrow ground. 

In reversing the decision of Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida, the Eleventh Circuit’s opinion represents a significant win for FCA whistleblowers, which the federal government considers to be key to its fraud-fighting efforts, and a considerable setback for FCA defendants, who had growing optimism stemming from perceived cracks in what has previously been a consistent rejection of constitutional challenges to the FCA’s qui tam provisions.

United States ex rel. Zafirov v. Florida Medical Associates

In 2019, Dr. Clarissa Zafirov brought a qui tam action against her employer, Florida Medical Associates and related entities, alleging they violated the FCA by knowingly submitting false diagnosis codes to Medicare to fraudulently increase reimbursement.  Following declination by the Department of Justice (DOJ) and a period of litigation, the defendants moved for judgment on the pleadings, arguing that the FCA’s qui tam provisions violated Article II of the Constitution on three grounds: the Appointments Clause, the Take Care Clause, and the Vesting Clause.  The defendants raised these arguments following Justice Thomas’ dissent in U.S. ex rel. Polansky v. Executive Health Resources, in which he called into question the constitutionality of the FCA’s qui tam provisions, explaining his view that “the FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,” and that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” 

In a first-of-its-kind ruling, the district court agreed with the defendants’ challenge to the FCA’s qui tam provisions under Article II’s Appointments Clause. In reaching that conclusion, the district court relied heavily on Justice Thomas’ dissent and found that relators exercise “significant authority,” akin to Federal Election Commission commissioners and special prosecutors, and occupy a continuing position—an “office of relator.”  Because relators are not presidentially appointed, the district court held that the FCA’s qui tam provisions violated the Appointments Clause and dismissed the case.  The district court did not address the defendants’ constitutional challenges under Article II’s Take Care Clause or Vesting Clause. 

Why Did the Eleventh Circuit Reverse the District Court’s Appointments Clause Ruling?

On appeal, the Eleventh Circuit reversed the district court’s decision, holding that relators do not occupy a “continuing position established by law,” which would be a threshold requirement for “officer” status under Article II’s Appointments Clause.  The Eleventh Circuit applied factors historically used by the Supreme Court to evaluate whether a position is “continuing,” including the position’s tenure, duration, emolument, and duties.

Eleventh Circuit Analyzed Whether Qui Tam Relators Hold a “Continuing Position”

Tenure and Duration: The Eleventh Circuit concluded that a qui tam relator’s tenure is “occasional and temporary” because it lasts only the length of a single FCA case, a relator may bring multiple cases in a year or none, and relators are not required to maintain a place of business.

No Continuing Emolument: The Eleventh Circuit emphasized that qui tam relators do not receive a “continuing emolument.”  Unlike government officers who receive regular appropriations, relators are paid only by means of the FCA’s statutory fee, which is a one-time award contingent on success stemming from either judgment or settlement associated with the underlying FCA claims.

Duties: Perhaps most importantly, the Eleventh Circuit determined that the qui tam relator’s role is personal and not continuing. Unlike officers whose duties “continue, though the person be changed,” a relator’s position cannot be assumed by anyone else (except the Attorney General if the United States were to intervene).

The Eleventh Circuit rejected the defendants’ argument that a qui tam relator was akin to an independent counsel and therefore an officer subject to the Appointments Clause, explaining that an independent counsel’s duties were not personal because when one resigned or was removed, a replacement “picked up the work right where his predecessor left off.”  In contrast, the FCA provides no mechanism for a relator to be replaced if FCA claims were abandoned.

Second, independent counsel are “on the public payroll,” as part of a permanent appropriation within DOJ.  Relators, by contrast, simply take a portion of any judgment or settlement they help obtain—which is not an appropriation at all, much less a regular one from the Eleventh Circuit’s perspective.The Eleventh Circuit rejected the district court’s theory of a continuous “office of relator” that exists whether any individual occupies it, relying on two key observations.  First, there is no “office of relator” in the FCA or any other law—rather, the term was invented for litigation purposes.  Second, the defendants’ analysis improperly asked whether an abstract “office” is continuing, when the correct inquiry under Supreme Court precedent should be whether a specific individual occupies a continuing position.

Remaining Constitutional Challenges to the FCA Qui Tam Provisions

The Eleventh Circuit vacated the district court’s opinion and remanded the case to the district court to address the defendants’ remaining constitutional arguments under Article II’s Take Care Clause and Vesting Clause.  These arguments assert that qui tam relators exercise executive power without sufficient presidential supervision and control.  It may very well be that the district court considers those issues in short order, with the possibility that those issues end up back before the Eleventh Circuit in the future. 

Notably, the Eleventh Circuit resolved the case without ruling on the district court’s conclusion that relators exercise “significant authority pursuant to the laws of the United States”—the second prong of the officer analysis under Lucia v. SEC. Instead, the Eleventh Circuit “assume[d] without deciding” that the Lucia framework applies to relators. By deciding the case solely on the “continuing position” prong, the Eleventh Circuit avoided the question of whether qui tam relators wield executive enforcement power—a question that will be central to the Take Care Clause and Vesting Clause challenges on remand.  The narrowness of the panel’s ruling also could make this case a poor candidate for further appellate review. 

What Does the Eleventh Circuit’s Zafirov Decision Mean for FCA Whistleblowers and Defendants?

With its decision, the Eleventh Circuit joins the Fifth, Sixth, Ninth, and Tenth Circuits in upholding the constitutionality of the FCA’s qui tam provisions against Appointments Clause challenges.  What once seemed like an issue that might very well result in a circuit split and eventual consideration by the Supreme Court now seems far less likely to gain such traction unless the defendants find success back at the district court level on the remaining constitutional challenges or another circuit directly takes up the issue and reaches a different conclusion.  With nearly 1,300 qui tam lawsuits filed by relators in FY 2025 and more than 3,000 filed during the prior three fiscal years, the Eleventh Circuit’s decision paves the way for DOJ’s continued reliance on qui tam lawsuits as a primary civil enforcement tool and for qui tam relators to continue to drive FCA litigation for years to come.       

For more information about our False Claims Act practice or the Eleventh Circuit’s holding, please contact the authors.