The Eleventh Circuit recently rejected a challenge to the constitutionality of the False Claims Act’s (“FCA”) qui tam provisions, holding that whistleblowers who bring FCA actions are not “Officers of the United States” subject to the Constitution’s Appointments Clause. United States ex rel. Zafirov v. Florida Medical Associates, No. 24-13581, 2026 WL 2581886 (11th Cir. Sept. 1, 2026).

Background

The relator brought an FCA action alleging Medicare fraud. The defendants moved to dismiss, arguing that the FCA’s qui tam provisions violate the Appointments Clause, Take Care Clause and Vesting Clause. According to the defendants, relators exercise significant governmental authority and therefore qualify as “Officers of the United States.” If so, relators would be required to receive an appointment consistent with the Constitution. The district court agreed, holding that the FCA’s qui tam provisions were unconstitutional. The relator appealed, and the Eleventh Circuit reversed.

The Court’s Reasoning

The Eleventh Circuit began with the Supreme Court’s two-part test for determining whether an individual is an “Officer of the United States.” Under that test, an officer must: (1) occupy a continuing position established by law; and (2) exercise significant governmental authority. The court’s analysis focused on the first requirement.

The court concluded that FCA relators do not occupy a continuing governmental position. Unlike federal officers, relators do not hold a permanent office, receive a government salary or perform ongoing governmental duties. Instead, a relator’s role is tied to a particular FCA action and ends when the litigation concludes.

The court also distinguished a relator’s statutory recovery from the compensation typically associated with government employment. A relator receives a contingent award only if the FCA action succeeds. In the court’s view, that award more closely resembles a bounty than a salary. The relator’s role is likewise personal and case-specific, rather than institutional or continuing.

Because relators do not occupy a continuing position established by law, the court held that they are not “Officers of the United States.” Having reached that conclusion, the court did not need to decide whether relators exercise significant governmental authority.

The Eleventh Circuit therefore reversed the district court and remanded to the district court to consider constitutional challenges based upon the Take Care and Vesting Clauses.

Why It Matters

The decision preserves the FCA’s existing qui tam enforcement framework within the Eleventh Circuit. Whistleblowers may continue to pursue FCA claims on the government’s behalf, and health care providers should expect relator-initiated litigation to remain an important source of FCA exposure.

The decision is also significant in light of other recent constitutional challenges to the FCA’s qui tam provisions. Zafirov provides appellate authority rejecting an Appointments Clause challenge based on the argument that relators are federal officers. However, challenges based upon the Take Care Clause and the Vesting Clause might remain viable, depending upon what occurs on remand.

Practical Takeaway

  • FCA Qui Tam Provisions Remain Constitutional: The Eleventh Circuit held that FCA relators are not “Officers of the United States” under the Appointments Clause because they do not occupy a continuing position established by law. The FCA’s qui tam provisions in the Eleventh Circuit therefore remain in effect.

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