Eleventh Circuit Reverses: FCA Qui Tam Constitutionality Survives Appointments Clause Test
Eleventh Circuit reverses the only court ruling striking down FCA qui tam as an Appointments Clause violation, but preserves Vesting and Take Care Clause challenges on remand.
The Eleventh Circuit's en banc-style reversal in United States ex rel. Zafirov v. Florida Medical Associates, LLC is the most consequential False Claims Act ruling of the cycle. Applying Buckley and Lucia, the panel held that qui tam relators do not occupy a continuing federal office because the role is personal to a single lawsuit, carries no government salary, and is a litigation posture rather than a statutorily established position. That avoids a circuit split on the Appointments Clause question and keeps whistleblower suits—1,297 filed in fiscal 2025—moving in every circuit. The win is partial: the district court must now decide whether qui tam relators improperly exercise core executive power under the Vesting and Take Care Clauses, a theory two Fifth Circuit judges have urged. With multiple Supreme Court justices signaling interest, defendants in declined cases should keep constitutional challenges in play while relators and government enforcement teams should expect continued, if contested, qui tam throughput.