Eleventh Circuit Upholds FCA Qui Tam Provision Constitutionality
The court joined every other circuit to have ruled on the issue in holding that whistleblower relators are not "officers" under the Appointments Clause, preserving a key government anti-fraud tool.
The US Court of Appeals for the Eleventh Circuit, in United States ex rel. Zafirov v. Florida Medical Associates, reversed a district court and held that the False Claims Act's (FCA) qui tam provisions do not violate the Constitution's Appointments Clause. Defendants have increasingly argued that allowing private whistleblowers, or "relators," to sue on the government's behalf unconstitutionally grants executive power to individuals who are not appointed as federal officers. This decision aligns the Eleventh Circuit with the Fifth, Sixth, Ninth, and Tenth Circuits, preventing a circuit split that might have forced Supreme Court review. With billions of dollars recovered annually through qui tam actions, the ruling preserves a critical tool for government fraud enforcement.
The constitutional battle is not over. The Eleventh Circuit's decision was narrow, finding that relators do not occupy a "continuing position" and are therefore not officers. It remanded the case for the district court to consider other Article II challenges based on the Vesting and Take Care Clauses. Counsel for FCA defendants should continue to preserve these arguments for potential future appeals, as several Supreme Court justices have expressed interest in reviewing the issue.