Eleventh Circuit Upholds FCA Qui Tam Provisions Against Appointments Clause Challenge
In Zafirov, the Eleventh Circuit joined four other circuits holding that FCA relators are not federal officers, but remanded for Take Care and Vesting Clause review.
The Eleventh Circuit's September 1 decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC rejected an Appointments Clause challenge to the False Claims Act's qui tam provisions, aligning the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits and eliminating any near-term circuit split that might have drawn Supreme Court review. Applying the Lucia v. SEC framework, the panel reasoned that relators lack the hallmarks of federal office: their tenure is temporary and case-specific, compensation is a one-time contingent share rather than continuing emolument, and duties are personal and non-transferable. Because the court resolved the appeal solely on the continuing-position prong, it did not decide whether relators exercise significant federal authority. The panel vacated the district court's dismissal and remanded for first-instance review of the defendants' Take Care Clause and Vesting Clause theories, both of which attack presidential supervision over relators pursuing FCA actions in the government's name. Sophisticated FCA defendants, relators, healthcare organizations, and government contractors should treat the Take Care and Vesting Clause remand as the next live battleground, while continuing to preserve constitutional defenses in pending qui tam matters.