11th Circ. Upholds Constitutionality of FCA Qui Tam Provision
Reinforcing consensus among federal appellate courts, the Eleventh Circuit ruled that whistleblowers suing on behalf of the government under the False Claims Act are not 'officers' who must be appointed by the President.
The U.S. Court of Appeals for the Eleventh Circuit, in United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, has overturned a district court decision that found the False Claims Act's (FCA) qui tam provision unconstitutional. The lower court had held that allowing a private whistleblower, or relator, to litigate on behalf of the U.S. after the Department of Justice declines to intervene violates the Appointments Clause. The Eleventh Circuit reversed, finding that relators are not "officers of the United States" requiring presidential appointment because they do not hold a "continuing position" under federal law.
This decision preserves the primary mechanism for private FCA enforcement in the Eleventh Circuit, a key jurisdiction for healthcare fraud litigation. The ruling aligns with existing precedent in four other circuits, preventing a split that would have increased pressure for Supreme Court review. However, counsel should note that the issue is not settled. Several Supreme Court justices have expressed "substantial arguments" against the qui tam device's constitutionality. Challenges are also pending in other circuits, including the Third. The Zafirov defendants may still seek en banc review or petition for certiorari, and the case will be remanded for consideration of other constitutional arguments.