The 11th Circuit has vacated a 2024 decision from the Middle District of Florida and held that the qui tam provisions of the False Claims Act do not violate the Appointments Clause of the United States Constitution. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, the court concluded that FCA relators are not officers who must be appointed by the president. It remanded the case to the district court for further consideration of the defendants’ remaining constitutional arguments.
As we previously reported here and here, Judge Kathryn Mizelle of the Middle District of Florida found the FCA’s qui tam mechanism unconstitutional under the Appointments Clause. That decision followed concerns raised by several Supreme Court justices about the constitutionality of the provisions. The district court granted the defendants’ motion to dismiss the FCA complaint. It reasoned that an FCA relator acts as an officer of the United States because the relator exercises significant authority reserved to the executive branch. That authority includes bringing an enforcement action on behalf of the United States and seeking recovery for the U.S. Treasury. A relator also chooses which claims to pursue, which theories to raise, which defendants to sue, and which arguments to make on appeal. Those choices can create precedent that binds the United States. Yet a relator is not appointed by the president, a department head, or a court of law under Article II. On that basis, the district court held the qui tam device unconstitutional.
The 11th Circuit rejected that reasoning. It held that a relator is not an officer of the United States subject to the Appointments Clause because relators do not hold a continuing position. In reaching that conclusion, the court declined to apply the 2nd Circuit test relied on by the district court. Instead, it looked to older Supreme Court decisions for guidance. Under those decisions, a continuing position must have permanent tenure, a duration as to time, a continuing emolument, and duties that continue even when the officeholder changes. The court found that an FCA relator satisfies none of those requirements. A relator’s tenure is occasional and temporary. It lasts only for the life of a single lawsuit, and the relator has no remaining duties once the case ends. A relator also does not receive continuing emoluments. Any payment is a one-time award, contingent on success, and not part of a regular government appropriation. Finally, the court found that a relator’s duties are personal to the case filed and cannot be assumed by others.
The 11th Circuit vacated the district court’s decision, but other constitutional questions remain. The court addressed only whether the FCA’s qui tam provisions violate the Appointments Clause. It sent the case back to Judge Mizelle to consider the defendants’ other constitutional arguments under the Take Care and Vesting clauses, which the district court had not reached in its original dismissal.