By Scott P. Fitzsimmons, Senior Partner (McLean, VA)
In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit held on September 1, 2026, that the qui tam provisions of the False Claims Act (“FCA”) do not violate Article II’s Appointments Clause, reversing a district court that had reached the opposite conclusion. The panel reasoned that FCA relators are not “Officers of the United States” because they do not occupy a “continuing position established by law” under the test articulated in Lucia v. SEC, 585 U.S. 237 (2018). The district court had held the opposite, applying Lucia to find that relators exercise “significant authority” akin to FEC commissioners and special prosecutors and occupy a continuous “office of relator.” The Eleventh Circuit rejected that framing, resolving the case on the continuing-position prong alone and declining to reach whether relators exercise significant authority.
A Consistent Body of Circuit Precedent
The Eleventh Circuit’s decision is consistent with opinions from other circuits, and the court expressly “join[ed] [its] sister circuits” that had rejected Appointments Clause challenges to the qui tam mechanism, citing Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001) (en banc); United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032 (6th Cir. 1994); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993); and United States ex rel. Stone v. Rockwell International Corp., 282 F.3d 787 (10th Cir. 2002).
To reach its holding, the court analogized relators to a non-officer surgeon in United States v. Germaine, 99 U.S. 508 (1879), and a customs appraiser in Auffmordt v. Hedden, 137 U.S. 310 (1890), both of whom served occasional, temporary roles without continuing emoluments. Tracking the Supreme Court’s guidance in Germaine and Auffmordt, the panel evaluated a relator’s tenure, duration, emolument, and duties, concluding that each factor pointed away from officer status.
A relator’s role is intermittent and lasts only the length of a single case; any contingent recovery of up to 30% of the proceeds is a one-time award rather than a “continuing emolument”; and a relator’s duties are personal, since no one may step into an abandoned case except the Attorney General upon intervention. The court distinguished Morrison v. Olson, 487 U.S. 654 (1988), noting that unlike an independent counsel whose successor “picked up the work right where his predecessor left off,” a relator’s duties are personal and cannot be assumed by a replacement.
Justice Thomas’s Dicta
The catalyst for these challenges was Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), which the panel cites for the FCA’s procedural framework. In Polansky, Justice Thomas questioned whether qui tam suits are consistent with Article II, given that relators wield core executive enforcement power while appearing to be neither appointed officers nor supervised employees. Justices Kavanaugh and Barrett, concurring, agreed the constitutional question warranted consideration “in an appropriate case.” That invitation prompted the district court’s ruling in Zafirov and similar defense arguments nationwide.
The Zafirov defendants pressed all three of Justice Thomas’s concerns, arguing that the qui tam provisions violate the Appointments Clause, the Take Care Clause, and the Vesting Clause. Because the panel resolved the appeal on the Appointments Clause, it remanded the Take Care and Vesting Clause arguments for the district court to consider in the first instance, leaving those Article II theories open for future litigation.
Circuit Split Analysis
Despite the district court’s outlier ruling, no genuine circuit split currently exists. Thus, it is unclear whether any appeal to the Supreme Court in Zafirov would be granted. Every federal court of appeals to squarely address the issue—now the Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits—has upheld the qui tam provisions against Appointments Clause attack. A split would require a sister circuit to adopt the reasoning of Judge Mizelle’s now-vacated district court opinion, which relied on an “office of relator” theory that the Eleventh Circuit rejected as having no basis in the FCA’s text.
Unless and until another circuit embraces that theory, Supreme Court review is unlikely in the near term, notwithstanding the interest signaled in Polansky.