Eleventh Circuit Reverses Zafirov, Holding That FCA’s Qui Tam Provisions Are Constitutional Under Appointments Clause

Writing for the three-judge panel, Judge Elizabeth L. Branch held that the FCA does not violate the Appointments Clause of the US Constitution because FCA relators are not officers of the United States. With this decision, the Eleventh Circuit joins every other federal circuit court to have addressed the issue, all of which came to the same conclusion.

As we have previously discussed, US District Court Judge Kathryn Kimball Mizelle’s September 2024 decision in Zafirov broke new ground as the first federal court to dismiss an FCA action on the basis that the qui tam provisions were unconstitutional under the Appointments Clause. The ruling energized defendants across the country to mount similar challenges and drew significant attention from the legal community, particularly against the backdrop of Justice Clarence Thomas’ 2023 dissent in US ex rel. Polansky v. Executive Health Resources Inc., where he questioned whether the qui tam mechanism could survive scrutiny under Article II.

Overview of the Opinion

The Eleventh Circuit panel only addressed whether the qui tam provisions violate the Appointments Clause. Specifically, the court resolved whether FCA relators qualify as “Officers of the United States” who must be presidentially appointed under the Appointments Clause. Under the US Supreme Court’s framework in Lucia v. SEC, 585 U.S. 237 (2018), an individual is an officer if she (1) “exercise[s] significant authority pursuant to the laws of the United States” and (2) “occup[ies] a continuing position established by law.” The Eleventh Circuit specifically declined to address whether the qui tam provisions are consistent with Article II’s Take Care Clause and Vesting Clause, remanding those questions to Judge Mizelle. 

The court found it sufficient to resolve the case on the second prong of the Lucia test, holding that a relator does not occupy a continuing position established by law. In doing so, the court relied directly on guidance from the Supreme Court, which provides four factors to determine whether an individual “occupies a continuing position established by law.”

• Tenure: The court found that a relator’s tenure is “occasional and temporary,” lasting the length of one case. The court reasoned that “[a] relator’s intermittent, nonpermanent tenure tends to show that he does not hold a continuing position.”
• Duration: The court next rejected the defendants’ argument that some relators’ years-long participation in FCA litigation demonstrates a continuing position. The court explained that the Supreme Court’s inquiry for duration looks to whether the duties are “permanent” or “occasional and intermittent,” and a relator’s duties do not fit this definition.
• Emolument: The court held that a relator’s contingent fee does not constitute a “continuing emolument.” The court observed that a relator only receives a one-time award “contingent on the success of his case,” receives no regular appropriation, “works on an intermittent basis,” and “faces no penalty” for not performing, except potentially losing out on the contingent fee.
• Duties: Finally, the court found that a relator occupies a “personal role” rather than a continuing office. It rejected the defendants’ argument that a relator can be “replaced” when a relator dies or goes into bankruptcy, explaining that in those circumstances “another relator does not replace the deceased or bankrupt,” but is instead represented by a personal representative or trustee. 

The court also squarely rejected the defendants’ argument that the FCA created a continuous “office of relator” that exists independently of any individual case because no law has actually created that office. 

Looking Ahead

The Eleventh Circuit’s decision is significant but it rests on narrow grounds and is not the final word on the constitutionality of the FCA’s qui tam provisions.

The Remand: The panel expressly left open the defendants’ challenges under the Take Care Clause and the Vesting Clause, sending those arguments back to Judge Mizelle for consideration in the first instance. Those provisions raise distinct questions about whether the delegation of enforcement authority to private relators is consistent with the president’s constitutional responsibility to “take Care that the Laws be faithfully executed” and with the vesting of executive power in the president alone. As we noted after oral argument, the panel appeared to recognize that these arguments may present harder questions than the Appointments Clause analysis. How the district court — and, eventually, the Eleventh Circuit again — address these issues could reshape the constitutional landscape.

Other Courts Are Watching: The Third Circuit heard oral argument in United States ex rel. Penelow v. Janssen Products, LP, the appeal of a record $1.64 billion FCA jury verdict, in March and has not yet issued its decision. That case squarely presents the same Article II challenges, and the Third Circuit’s ruling could either reinforce or diverge from the Eleventh Circuit’s approach. 

Supreme Court Review: We will have to wait and see whether the Supreme Court will review the Eleventh Circuit’s decision. The defendants in Zafirov would have to appeal the case to the Supreme Court by filing a petition for writ of certiorari, and four justices would have to grant review of that petition. Three justices have previously signaled an interest in the Supreme Court taking up the issue. Time will tell if there is a fourth. If the defendants do not appeal the Eleventh Circuit’s decision, or if the Supreme Court denies review, then the case will return to Judge Mizelle who will have to address the constitutionality of the qui tam provisions under the Take Care and Vesting Clauses, leaving the door open to other avenues to challenge the constitutionality of the FCA’s qui tam provisions. 

We will continue to monitor these developments and provide updates as additional rulings are issued.