On September 1, 2026, the Eleventh Circuit upheld the constitutionality of the False Claims Act’s qui tam provision, reversing the lower court’s decision, in United States ex rel. Zafirov v. Florida Medical Associates, LLC.[i] The district court had ruled that the qui tam provision violated the Appointments Clause which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.”[ii] The Eleventh Circuit reversed, “hold[ing] that relators are not officers of the United States subject to the Appointments Clause.”[iii] The constitutionality of the qui tam provision is likely to face continued litigation for two reasons. First, both courts explicitly declined to rule on defendants’ arguments that the qui tam provision also violated the Take Care Clause and the Vesting Clause. Second, for the reasons discussed below, this decision will very likely be petitioned to the Supreme Court.
The Case Everyone Has Been Watching
As we wrote following oral argument, this appeal has been closely watched because of what was at stake: the future of qui tam whistleblower actions under the False Claims Act (“FCA”), a statutory scheme that has for decades empowered private individuals, called relators, to bring fraud claims on behalf of the federal government. Twice in the last three years, Supreme Court justices have questioned, albeit in concurring and dissenting opinions, the constitutionality of the qui tam provision.[iv] Following on the heels of, and perhaps taking inspiration from, these opinions, the district court held that the FCA’s qui tam provisions run afoul of the Constitution’s Appointments Clause.
Whether a government employee is an officer of the United States subject to the Appointments Clause depends on whether they satisfy two criteria. First, they must “occupy a ‘continuing position established by law.’”[v] Second, they must “exercise significant authority pursuant to the laws of the United States.”[vi] Applying this two-part test, the district court found that relators are officers of the United States because they exercise “significant authority” comparable to that of FEC commissioners and special prosecutors, and because they occupy a continuing “office of relator.” The district court did not address the defendants’ Take Care Clause or Vesting Clause arguments. To no one’s surprise, the relator appealed to the Eleventh Circuit.
The Eleventh Circuit Reverses And Remands
Writing for the panel, Judge Branch (joined by Judge Luck and, by designation, District Judge Moreno) decided the issue on a single ground. The panel held relators do not occupy a “continuing” position established by law, thus failing to satisfy one of the two requirements under Lucia. Because the panel concluded that relators fail the “continuing” requirement, it did not need to, and did not, decide whether relators exercise “significant authority,” the other half of the Lucia test.
The panel held that determining whether a person holds a continuing position requires a court to examine “whether that person holds a ‘permanent’ tenure, whether his employment has ‘duration as to time,’ and whether he receives a ‘continuing emolument.’”[vii] A court must also consider whether the duties of the position continue even if the position’s occupant changes.[viii] In so holding, the panel found that the district court had improperly relied on an alternative, out-of-circuit test from the Second Circuit’s three-part opinion in United States v. Donziger, 38 F.4th 290, 297 (2d Cir. 2022), which considers whether “(1) the position is not personal to a particular individual; (2) the position is not transient or fleeting; and (3) the duties of the position are more than incidental.”
On tenure, the court found a relator’s role “occasional and temporary” because it lasts only the length of a single case, a relator may bring several cases or none in a given year, and relators are not required to maintain a place of business—much like the contract surgeon in Germaine who examined pension applicants only when one presented himself. On duration, the court found that even multi-year FCA litigation does not establish a continuing position, because the relevant inquiry is whether the role is permanent rather than merely long-lived in a given instance. On emolument, the court held that a relator’s contingent fee, paid only upon success and not through any regular appropriation, is not a “continuing emolument.” On duties, the court found a relator’s role personal: no one can step into an existing relator’s shoes if he abandons his claim, apart from a personal representative or trustee continuing the same person’s estate interest following death or bankruptcy.
The court rejected the defendants’ reliance on Morrison v. Olson, 487 U.S. 654 (1988), distinguishing the independent counsel at issue there—who could be replaced mid-case by a successor picking up exactly where the predecessor left off and who was paid from a permanent appropriation—from a relator’s non-transferable, non-appropriated role. The court likewise rejected the argument that the FCA creates a standalone, continuous “office of relator” existing independent of any individual relator, observing that no such office appears anywhere in the statute and that the proper inquiry looks to the individual’s role, not to a hypothetical office that could be filled.
Having concluded that relators do not hold a continuing position, the panel held that relators are not officers of the United States subject to the Appointments Clause, joining the Fifth, Sixth, Ninth, and Tenth Circuits in upholding the qui tam provisions against this challenge. The court vacated the district court’s dismissal and remanded for the district court to consider, in the first instance, the defendants’ Take Care Clause and Vesting Clause arguments, which neither the district nor circuit court has yet addressed on the merits.
What This Means Going Forward
The Eleventh Circuit’s decision restores the FCA’s qui tam mechanism in this case, but it is unlikely to be the last word. Two open threads keep this litigation, and the broader constitutional question, very much alive.
First, neither the district court nor the Eleventh Circuit has resolved the defendants’ Take Care Clause or Vesting Clause arguments, both of which the panel expressly instructed the district court to address on remand. A future ruling on either theory could reopen the constitutional question even though the Appointments Clause challenge has now failed.
Second, eight months ago, on the day of oral argument, we wrote that this decision “will likely be petitioned to the Supreme Court,” and that remains as true today as it was then. Although the Eleventh Circuit has not created a circuit split on the constitutional question, the underlying tension flagged by Justices Thomas and Kavanaugh in recent opinions remains unresolved, and defendants facing FCA exposure should expect continued developments on this front. This decision is certainly an important, but not necessarily final, milestone.
FOOTNOTES
[i] United States ex rel. Zafirov v. Florida Medical Associates, LLC, ___ F.4d ___ (11th Cir. Sept. 1, 2026).
[ii] U.S. Const. art. II, § 2, cl. 2.
[iii] Slip Op. p. 17.
[iv] United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 442 (2023) (Kavanaugh, J., joined by Barrett, J., concurring); id. at 449 (Thomas, J., dissenting); see also Wisconsin Bell, Inc. v. United States ex rel. Heath, 145 S.Ct. 498, 515 (2025) (Kavanaugh, J., joined by Thomas, J., concurring).
[v] Lucia v. SEC, 585 U.S. 237, 245 (2018).
[vi] Id.
[vii] Slip Op. pp. 8-9 (quoting Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890) and United States v. Germaine, 99 U.S. 508, 511-12 (1879)).
[viii] Id. (citing United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15, 747) (Marshall, C.J.)).