11th Circuit Rejects Appointments Clause Attack on FCA Qui Tam Actions
The Eleventh Circuit has reversed a district court decision, holding that False Claims Act relators are not 'officers of the United States' and aligning itself with four other circuits on the issue.
The U.S. Court of Appeals for the 11th Circuit has reversed a district court’s finding that the False Claims Act’s (FCA) qui tam provision is unconstitutional. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the appellate panel held that whistleblowers, or relators, who sue on behalf of the government are not “officers of the United States” subject to the Appointments Clause of Article II of the Constitution. The court reasoned that a relator’s role is temporary and case-specific, not a “continuing position” that would require presidential appointment.
This decision is significant because it averts a circuit split, aligning the 11th Circuit with the Fifth, Sixth, Ninth, and 10th Circuits, all of which have previously upheld the qui tam mechanism. The ruling is a blow to FCA defendants who have increasingly sought to use the constitutional argument as a defense. Counsel should be aware, however, that the issue may not be permanently settled. Three sitting Supreme Court justices have previously expressed skepticism about the constitutionality of private relators representing the government’s interests, signaling that the high court may still choose to review the matter in an appropriate future case, even without a split among the circuits.