Eleventh Circuit holds False Claims Act qui tam provisions do not violate the constitution

In recent years, multiple challenges have been made to the constitutionality of a key provision of the False Claims Act (FCA) that, in addition to enabling the US Attorney General (AG) to bring civil suits against alleged perpetrators of fraud, allows individual “whistleblowers” (called “relators”) who may have knowledge of an alleged fraud to pursue a case against the perpetrators on behalf of the government. These so-called qui tam provisions have been challenged as being unconstitutional on the basis that relators are essentially exercising executive power in violation of the Appointments Clause of Article II of the US Constitution (Appointments Clause). Qui tam provisions, it is argued, allow relators to act as officers of the US without receiving presidential appointment, which is required under the Appointments Clause.

On September 1, 2026, in vacating a district court’s dismissal of United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 24-13581 (11th Cir. Sept. 1, 2026), the US Court of Appeals for the Eleventh Circuit rejected this argument, holding that the FCA’s qui tam provisions do not violate the Appointments Clause. According to the court, relators are not officers of the US because they do not occupy a continuing position established by law. 

Thus, the Eleventh Circuit has joined every federal court of appeals to have squarely addressed the question (the Fifth Circuit sitting en banc, together with the Sixth, Ninth, and Tenth Circuits, each of which last took up the issue more than two decades ago), with each holding that relators are not officers subject to the Appointments Clause. As such, the decision eliminates, at least for now, a primary pathway for a circuit split on the FCA’s constitutionality. The constitutional battle in Zafirov may continue, however, because the Eleventh Circuit’s remand instructed the lower court to evaluate two other Article II arguments that it previously left untouched. Furthermore, at least one Supreme Court Justice (Clarence Thomas) questioned the qui tam provision’s constitutionality, opining in a dissent that it occupied “something of a constitutional twilight zone.” United States ex rel. Polansky v. Executive Health Resources, 599 U.S. 419, 449 (2023).

For a discussion on the now-vacated district court decision and the broader wave of constitutional challenges, please see our previous client alerts here and here.

Below, we offer background on the FCA and a summary of the Eleventh Circuit’s decision. 

Background

The FCA imposes civil liability for knowingly presenting a false or fraudulent claim for payment, with each violation carrying a statutory penalty and treble damages. The AG may sue directly. Under qui tam provisions, relators may also sue for themselves and on behalf of the US government. 

A relator’s complaint remains under seal for at least 60 days while the government decides whether to intervene and proceed itself or decline and let the relator proceed. If the government intervenes, it may dismiss over the relator’s objection, subject to court approval under the deferential standard of Polansky. A successful relator receives a contingent award of up to 30 percent of the proceeds, with the exact share turning on whether the government intervened and the extent of the relator’s contribution to the litigation. 

In recent years, nearly 90 percent of FCA cases have been initiated as qui tam cases, and many cases proceed to judgment without the government intervening. The Department of Justice (DOJ) reported that, in fiscal year 2025, recoveries amounting to approximately $2.29 billion were obtained from qui tam lawsuits in which the government had not intervened.

Dr. Clarissa Zafirov filed this action in 2019, alleging that her employer and related entities knowingly submitted false diagnosis codes to obtain excess Medicare payments. In February 2024, after several years of litigation, the defendants moved for judgment on the pleadings or dismissal, arguing that the qui tam provisions violate the Appointments Clause (and other provisions of the US Constitution). The government, having declined to intervene at filing, intervened for the limited purpose of defending the provisions’ constitutionality. The district court held that the provisions violate the Appointments Clause and did not reach the other Article II arguments.

The court’s analysis

In Lucia v. SEC, the Supreme Court determined that an individual is an “officer of the United States” only if they occupy a “continuing position” established by law and exercise “significant authority” pursuant to federal law. The Eleventh Circuit concluded that the “continuing position” issue was dispositive. Summarizing the Supreme Court’s decision in Lucia and other cases, the eleventh Circuit noted that the term “officer,” who must be appointed and supervised by the President, “embraces the ideas of tenure, duration, emolument, and duties.” 

The Supreme Court has focused on whether the person at issue holds a “permanent” tenure (as opposed to “occasional or temporary”), with a “duration as to time,” and whether they receive a “continuing emolument.” Regarding duties, the issue is whether they continue even if “the person be changed.” The Eleventh Circuit reasoned that relators’ roles are temporary – not continuing – even though a particular case might last several years, and it noted that any “emolument” (payment or consideration) is tied to a single judgment in a particular case, not an ongoing entitlement. As to a relator’s duties, the Eleventh Circuit concluded that a relator “occupies a personal role, not one where his ‘duties continue, though the person be changed’” because a relator “assumes a duty to litigate each case that he files, and his role in the case cannot be assumed by anybody else (except for the Attorney General when the government intervenes).” 

The panel distilled its ruling as follows: “In sum, we find that, while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position.” As such, the Eleventh Circuit resolved the appeal on the continuing-position requirement alone and expressly declined to reach alternative grounds, including the arguments that relators pursue a private interest without exercising executive power, or that relators do not exercise significant authority. It also assumed without deciding that the Lucia framework governs relators at all, since relators are not government employees (which were at issue in Lucia). 

Key takeaways

The Eleventh Circuit now aligns with every circuit to reach the issue. The court joined the Fifth (en banc), Sixth, Ninth, and Tenth Circuits in upholding the FCA’s qui tam provisions, so the decision closes – rather than creates – a split. 

The constitutional challenge is narrowed, not concluded. The court decided only the continuing-position question, leaving open whether relators exercise executive power or significant authority. This is the premise on which the Take Care Clause and Vesting Clause challenges rest. Those clauses were never addressed by the Eleventh Circuit and will return for first-instance consideration by the same judge who has twice held the qui tam mechanism unconstitutional. 

Supreme Court interest is undisturbed. Justice Thomas has questioned the provisions’ constitutionality in his Polansky dissent and Wisconsin Bell concurrence, and Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, has invited the Court to take up the Article II question in an appropriate case. 

Practical guidance for FCA defendants. Within the Eleventh Circuit, the day-to-day posture is unchanged. DOJ typically permits relators to proceed even where it declines to intervene, but the government retains its authority to seek dismissal over a relator’s objection under Polansky. Because the holding rests on temporary tenure, a contingent one-time award, and personal duties, Appointments Clause arguments premised on relator continuity, relator substitution, or the multi-year length of individual cases may now be considered foreclosed at the panel level. Take Care Clause and Vesting Clause objections remain available, and it is encouraged that they be raised and preserved at the pleading stage (as should the “continuing position” point, to preserve the record), in this circuit and elsewhere.

For more information, please contact the authors.