On September 1, 2026, the Eleventh Circuit issued its decision in United States ex rel. Zafirov v. Florida Medical Associates, vacating a lower court ruling against the False Claims Act’s qui tam provisions.
The district court had previously held that FCA qui tam provisions violate the Appointments Clause because relators exercise significant executive authority without proper Article II appointment.
The Eleventh Circuit disagreed, finding that FCA relators are not “Officers of the United States” because they do not occupy a “continuing position established by law.”
Applying the Supreme Court’s framework from Lucia v. SEC, the court explained that an officer must exercise significant authority under federal law and occupy a continuing position established by law.
The court assumed, without deciding, that the Lucia framework governs relators, ultimately concluding the case turned entirely on the continuing-position requirement rather than the authority question.
The Eleventh Circuit identified several characteristics traditionally associated with constitutional officers, including permanent tenure, a continuing emolument, and ongoing duties, finding all three absent in the relator context.
The court found a relator’s tenure to be temporary and case-specific, reasoning that the relevant inquiry is not the length of a particular lawsuit but whether the position itself is permanent rather than intermittent.
On compensation, the court analogised the relator’s contingent share of any recovery to the fee-based arrangement in United States v. Germaine, which likewise did not resemble continuing compensation associated with public office.
The court also determined that a relator’s duties are personal rather than institutional, noting that if a relator abandons a case, a different relator cannot simply assume that same role.
With this ruling, the Eleventh Circuit has joined the Fifth, Sixth, Ninth, and Tenth Circuits in rejecting Appointments Clause challenges to the FCA’s qui tam provisions, eliminating any circuit split on the question.
The absence of a circuit split materially decreases the likelihood that the Supreme Court would grant certiorari, meaning the case will likely return to district court rather than travel to Washington.
Despite the clear win for relators on the Appointments Clause, the court remanded for consideration of the defendants’ remaining Vesting and Take Care Clause arguments, leaving significant constitutional questions unresolved.
Judge Luck had signalled this outcome at oral argument, asking parties whether the constitutional issue would be more appropriately considered under the Vesting and Take Care Clauses, with Judge Luck’s view ultimately prevailing.
The government faces a difficult position on remand, having previously stated that “[i]f Congress’s use of the qui tam mechanism were a new development, these features of qui tam actions under the False Claims Act would give rise to substantial questions about whether such actions are consistent with the Vesting and Take Care Clauses of Article II.”
That position sits in tension with the current administration’s successful argument in Trump v. Slaughter that the independent structure of the Federal Trade Commission under the FTC Act violated those same Article II provisions.
The FCA, like the FTC Act, long post-dates the enactment of Article II, foreclosing arguments that the qui tam provisions somehow reflect the framers’ original understanding of executive power’s scope.
Notable for its narrowness, the Eleventh Circuit’s opinion contains no discussion of whether relators exercise “significant authority” or wield executive power, leaving concerns raised by Justice Thomas in Polansky largely untouched.
Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources had cast fresh doubt over the constitutional standing of qui tam provisions, making this the first circuit ruling to address those concerns directly.
The constitutional challenge has shifted rather than disappeared, and Article II arguments will continue to feature prominently in declined FCA cases where viable under existing circuit precedent.