Last week, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, the Eleventh Circuit rejected a constitutional challenge to the False Claims Act’s (“FCA”) qui tam provisions, reversing a Middle District of Florida decision that had held the statute’s qui tam mechanism unconstitutional under the Appointments Clause of Article II.
The Eleventh Circuit held that FCA relators are not “Officers of the United States” because they do not occupy a “continuing position established by law.” Because the court concluded that relators do not satisfy that requirement, it did not need to decide whether they exercise “significant authority” under Supreme Court precedent. Nor did it need to determine the significance of the historical pedigree of qui tam litigation, which existed before and at the time the Constitution was adopted.
The decision vacates the district court’s dismissal and remands the case for consideration of the defendants’ remaining challenges under the Take Care and Vesting Clauses of Article II. For FCA practitioners, Zafirov is significant because the Eleventh Circuit joins four other appellate courts and the near unanimous district court decisions rejecting a direct constitutional attack on the ability of private relators to pursue FCA claims on behalf of the United States.
The Zafirov Litigation
Dr. Clarissa Zafirov filed a qui tam action in 2019 alleging that her former employer and related entities knowingly submitted inaccurate diagnosis codes to Medicare to obtain inflated reimbursements. The United States initially declined to intervene, allowing Zafirov to continue prosecuting the action. After the defendants challenged the constitutionality of the FCA’s qui tam provisions, the government intervened for the limited purpose of defending the statute’s constitutionality.
The defendants advanced three related constitutional arguments: that relators must be appointed as federal officers under the Appointments Clause; that private relators exercise executive power without sufficient presidential supervision in violation of the Take Care Clause; and that relators exercise executive power that the Constitution vests in the President, in violation of the Vesting Clause. The district court reached only the Appointments Clause issue and dismissed the action.
The district court applied the Supreme Court’s framework in Lucia v. SEC, to address whether an individual exercises “significant authority pursuant to the laws of the United States” and occupies a “continuing position established by law.” The court concluded that an FCA relator satisfies both requirements. A relator can initiate litigation in the United States’ name, prosecute the action in federal court, make litigation decisions, and seek recovery for the public fisc. The district court viewed those powers as significant governmental authority.
The court also concluded that the FCA creates a continuing statutory role—the “office of relator”—even though any particular relator may prosecute only one case. The district court considered the role analogous to other governmental positions that may be temporary in practice but nevertheless constitute offices. The court also concluded that historical examples of qui tam provisions do not exempt the FCA from the Appointments Clause. The court therefore held that Zafirov was an officer who had not been constitutionally appointed and dismissed the action.
The Eleventh Circuit’s Reversal
The Eleventh Circuit reversed, but its reasoning was narrow. The appellate court assumed, without deciding, that Lucia provides the appropriate framework for determining whether an FCA relator is an “Officer of the United States.” It then addressed only the requirement that a person occupy a continuing position. It concluded that relators do not, which was sufficient to conclude that relators are not officers who must be appointed in accordance with the Appointments Clause of Article II. The court therefore did not need to address the district court’s holding that relators exercise significant government authority.
The Eleventh Circuit began with the Supreme Court’s historical treatment of the distinction between continuing offices and temporary or occasional positions. The Supreme Court has traditionally explained that the term “officer” encompasses the concepts of “tenure, duration, emolument, and duties.” And, with respect to the duties associated with an office, the Supreme Court has asked whether those duties continue “though the person be changed.”
Applying those principles, the Eleventh Circuit identified three characteristics of the relator’s role that weighed against treating it as a continuing position: temporary tenure and duration, the absence of a continuing emolument, and personal duties. First, the court concluded that a relator’s tenure is temporary rather than permanent. A relator’s duties arise from a particular FCA action and end when that action ends. If the government or the court dismisses the case, or the case settles, the relator has no remaining duties. As the court explained, a relator’s “intermittent, nonpermanent tenure” indicates that the relator does not hold a continuing position.
Second, the court considered compensation. An officer traditionally receives a “continuing emolument.” The Eleventh Circuit concluded that, even assuming a relator’s potential share of an FCA recovery qualifies as an emolument, it is not continuing. A relator’s potential compensation depends on the outcome of the particular action and therefore does not resemble the continuing compensation associated with a governmental office.
Third, the court examined the nature of the relator’s duties. The Eleventh Circuit rejected the defendants’ argument that a relator’s position is not personal because another relator may continue existing litigation, concluding that a relator’s duties are personal and limited to the particular litigation. The Eleventh Circuit expressly rejected the district court’s conclusion that there is an “office of relator,” explaining that the relevant constitutional question is not whether an abstract statutory role not expressed in the FCA or any other statute can be filled by successive individuals, but whether the individual exercising the challenged authority occupies a continuing position established by law. The court further explained that no Supreme Court precedent has treated the existence of an unfilled position as sufficient to establish that the person who eventually fills it occupies a continuing position. The Eleventh Circuit declined to create such a rule, noting that doing so would depart from the methodology used by the Supreme Court, which traditionally has examined the role and characteristics of the particular individual exercising the relevant authority—not the hypothetical continuity of an abstract office.
Because the Eleventh Circuit concluded that relators do not satisfy that requirement, it did not need to decide whether they exercise “significant authority” under Supreme Court precedent. Nor did it need to determine whether the historical pedigree of qui tam litigation is relevant to the analysis of whether the FCA violates the Appointments Clause of Article II. In sum, the Eleventh Circuit squarely rejected the district court’s theory that the FCA creates a continuing governmental “office of relator” and decisively ruled that “relators are not officers of the United States” under the Appointments Clause of Article II.
What Happens Next?
Zafirov does not resolve the broader Article II constitutional debate over qui tam enforcement (the Supreme Court previously held that relators have standing under Article III). The Zafirov defendants’ Take Care and Vesting Clause arguments remain pending before the district court on remand. The Take Care Clause challenge asks whether the Executive Branch must exercise greater supervision and control over private relators who prosecute FCA claims when the government declines to intervene. The Vesting Clause challenge raises the related question of whether Congress may authorize private individuals to exercise executive enforcement authority that the Constitution vests in the President. For now, however, the Eleventh Circuit’s decision is an important victory for the continued use of the FCA’s qui tam provisions, which have been instrumental in combatting fraud against the government as well as stopping practices that undermine government programs and cause harm to the beneficiaries of those programs.
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