FCA Alert: The Eleventh Circuit Rejects the Appointments Clause Challenge to Qui Tam — and Remands Two Constitutional Questions

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United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581, slip op. (11th Cir. Sept. 1, 2026) (published) | vacating and remanding United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024)

Healthcare / False Claims Act — qui tam constitutionality (Appointments Clause)

Introduction

The Eleventh Circuit has finally spoken in a closely watched case challenging the constitutionality of the qui tam provisions of the False Claims Act. In September 2024, a district court in Tampa held that relators are officers of the United States who were never appointed by anyone and dismissed a Medicare fraud case outright. Defendants around the country promptly added the argument to their motions, the government intervened in the case, one it had already declined, in order to defend the statute, and everyone waited on the Eleventh Circuit. On September 1, the answer came, but it was narrow: relators aren’t officers, because they don’t occupy a continuing position. Two other constitutional theories go back to the same district court that ruled for the defendants the first time around.

Executive Summary

A unanimous Eleventh Circuit held that FCA relators are not “officers of the United States” within the meaning of the Appointments Clause, because they do not occupy a continuing position established by law. The court vacated the district court’s dismissal and remanded for consideration of the other constitutional issues neither court has yet addressed.

Three features of the opinion merit attention. First, the circuit court resolved only one of the two requirements the Supreme Court set out in Lucia v. SEC, 585 U.S. 237 (2018) to determine an Appointments Clause violation: it only decided that relators do not occupy a “continuing” position established by law and expressly declined to decide whether they are officers exercising “significant authority pursuant to the laws of the United States.” Second, the circuit court assumed without deciding that the Lucia framework even governs relators, who are not government employees. Third, the Take Care Clause and Vesting Clause challenges — which the district court did not consider given the Appointments Clause ruling — return below for decision in the first instance.

Background

The statute

The FCA authorizes private parties — relators — to sue “for the person and for the United States Government” in the government’s name. 31 U.S.C. § 3730(a), (b)(1). A relator’s complaint stays under seal for at least sixty days while the government decides whether to intervene. § 3730(b)(2). If it intervenes, then or later on good cause, it can dismiss over the relator’s objection. The court, applying ordinary Federal Rule of Civil Procedure 41 standards, owes the government “substantial deference,” and grants dismissal in “all but the most exceptional cases.” United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 425–27, 437 (2023). A successful relator takes a contingent share of up to 30% of the proceeds. § 3730(d).

The district court decision

Dr. Clarissa Zafirov sued her employer and related entities in 2019, alleging they knowingly submitted false diagnosis codes to Medicare. The government declined to intervene. After several years of litigation, the defendants moved for judgment on the pleadings, arguing the qui tam provisions violate the Appointments Clause, the Take Care Clause, and the Vesting Clause. The government then intervened solely to defend the statute’s constitutionality.

The district court ruled for the defendants on the Appointments Clause issue and did not reach the others. Applying Lucia v. SEC, 585 U.S. 237 (2018), the court held that relators exercise “significant authority” because their civil enforcement power resembles that of FEC commissioners and special prosecutors, and that they occupy a continuing position — an “office of relator” that “exists whether a person is appointed to that office or not,” and is therefore “continuous even if it is not continually filled.” 751 F. Supp. 3d at 1307–17. The district court dismissed the case, reasoning that the only litigant on the plaintiff’s side of the enforcement action lacked authority to prosecute it.

Legal Analysis

The Eleventh Circuit vacated the district court’s Appointments Clause ruling, and left the door open for the two other constitutional challenges.

The court resolved one requirement and stopped. Lucia sets two: the person must occupy a “continuing” position established by law and must exercise significant authority pursuant to the laws of the United States. Lucia, 585 U.S. at 245. Zafirov and the government offered three arguments; the circuit court decided on the continuing-position point, found it dispositive, and wrote that it “need not reach any of their remaining arguments.” Whether relators wield executive power — the premise of the Take Care and Vesting Clause theories — remains open.
It assumed the framework rather than settling it. A footnote records that the court “assume[s] without deciding that Lucia’s framework governs relators, who are not government employees.” That is a real reservation. Lucia distinguishes officers from employees; relators are neither, nor did the circuit court resolve whether the officer/employee taxonomy is the right lens at all.
Tenure and duration are measured by regularity, not by length. The court cited United States v. Germaine, 99 U.S. 508 (1879), and Auffmordt v. Hedden, 137 U.S. 310 (1890) — a pension-examining surgeon who might conduct “fifty of these examinations in a year, or none,” and a merchant appraiser called in occasionally for his special knowledge. Under those cases, neither was an officer of the United States. A relator likewise may bring several cases in a year or none, and need not keep a place of business. The defendants’ point that some qui tam actions run for years drew a direct answer: the Supreme Court has not focused on the overall length of a person’s time fulfilling his duties when evaluating the duration of the position.
A contingent share of a recovery is not a continuing emolument. The circuit court tracked Germaine point for point. A relator is paid a one-time award contingent on success, not through any regular appropriation; works intermittently; and faces no penalty for declining to perform beyond losing the fee in that case. The recovery share may or may not be an “emolument” at all — the court did not need to decide — but it plainly is not a continuing one.
The personal nature of a relator’s duties is what distinguishes the leading case on independent counsels. The defendants’ best authority was Morrison v. Olson, 487 U.S. 654 (1988), where an independent counsel appointed “essentially to accomplish a single task” was still an officer — proof that a temporary role can be a continuing position. The circuit court accepted the premise and distinguished on two grounds: an independent counsel’s duties were not personal, and an independent counsel was on the public payroll under a permanent indefinite appropriation. Morrison herself had replaced McKay “with the same jurisdiction,” picking the work up mid-investigation. The FCA provides no mechanism for replacing a relator who abandons the claim. The defendants’ death-and-bankruptcy counterexample was turned around: in those cases, a personal representative or bankruptcy trustee carries the claim forward on the relator’s behalf — the relator cannot be replaced with an unrelated person.
There is no “office of relator.” The circuit court rejected the district court’s finding that the qui tam provisions create an “office of relator.” This term does not appear in the FCA. More fundamentally, Lucia asks whether an individual occupies a continuing position, not whether an abstract office is continuing; no precedent has held that the mere existence of an unfilled position makes its occupant an officer. A footnote puts it bluntly: evaluating a “fictional ‘office of relator’” departs from the Supreme Court’s own method in Auffmordt and Germaine, which examined the duration of the actual customs appraiser and the actual surgeon in front of them.
The circuit court declined the Second Circuit’s test. The district court had used the three-factor continuing-position framework from United States v. Donziger, 38 F.4th 290 (2d Cir. 2022). The Eleventh Circuit noted that the test is that circuit’s own distillation of Supreme Court caselaw, is not binding, and declined to adopt it, working from the Supreme Court’s guidance directly.

Holding

Relators do not occupy a continuing position established by law and therefore 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. The district court’s order dismissing the case is vacated, and the case is remanded for that court to evaluate the defendants’ Take Care Clause and Vesting Clause arguments in the first instance. Published opinion; no concurrence or dissent.

What to Watch

Rehearing en banc and certiorari. Defense counsel has said publicly that the defendants are assessing their options. Watch for a petition for rehearing en banc in the Eleventh Circuit, and for a cert petition after that.
Whether the Supreme Court wants it. In Polansky, Justice Thomas dissented, partially based on the view that the qui tam provisions raise serious constitutional questions, writing that “there 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.” Justices Kavanaugh and Barrett, concurring, agreed with that statement and added that the Court should consider the competing arguments on the Article II issue in an appropriate case. Three Justices have effectively asked for the vehicle. Zafirov’s narrowness makes it an unlikely candidate, but at some point a more appropriate case may reach the Court, and may interest four Justices enough to grant cert.
The remand, first and most immediately. If further appellate activity does not generate additional opinions, the Take Care and Vesting Clause theories go back to the district court, which has already held once that relators wield core executive power — a finding the Eleventh Circuit did not disturb because it did not reach it. The district court is free to decide these remaining issues.
The Third Circuit. A parallel appeal is fully briefed and argued and is awaiting decision: United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818 (3d Cir.), argued March 18, 2026. It arises from a declined qui tam that produced a jury verdict of more than $1.5 billion against a Johnson & Johnson subsidiary over off-label promotion, and the Department of Justice has again appeared to defend the statute’s constitutionality. What makes it the more consequential vehicle is its scope: the defendants raised the Appointments Clause, the Vesting Clause, and the Take Care Clause together, so the Third Circuit has before it — on a full trial record, with damages of a size that concentrates attention — the two questions Zafirov declined to reach and sent back down. A circuit court that answered all three, in either direction, would do more to shape the landscape than a remand to the Middle District of Florida. The U.S. Chamber of Commerce filed a coalition amicus brief in July 2025 urging the court to hold the qui tam provisions unconstitutional and arguing that the Article II defect contributed to a constitutionally excessive fine.

John Libby is an arbitrator, mediator, and settlement counsel with LibbyADR LLC. This alert discusses published and slip-copy decisions for general informational purposes and is not legal advice.