By Christian Jenner and Christopher Wildenhain
Previously in this space, we wrote about the United States’ appeal of a district court judgment in the case of United States ex rel. Zafirov v. Florida Medical Associates, LLC,[i] in which the court held that the statute authorizing whistleblowers to sue in the name of the United States to recover for false claims was unconstitutional. The decision had come in the wake of three Justices of the U.S. Supreme Court expressing doubt over the constitutionality of the “qui tam” provision of the False Claims Act (FCA) in United States ex rel. Polansky v. Executive Health Resources, Inc.[ii] If upheld on appeal, the district court’s decision would have set up a circuit split that could have ultimately upended an anti-fraud legal mechanism that has been in place since the Civil War.
But the U.S. Court of Appeals from the Eleventh Circuit did nothing of the sort. Instead, the appeals court reversed. “Join[ing] our sister circuits that have addressed this issue,” the Eleventh Circuit, in an 18 page ruling, held that the district court erred in concluding that the FCA violated the Appointments Clause of the Constitution.[iii] Although this decision is certainly a setback for the argument that FCA defendants had been pressing with renewed emphasis in the nearly two years that had elapsed since the district court ruling, it is still too early to say that this is the end of Appointments Clause challenges to the FCA.
The False Claims Act and the District Court’s Decision
Inspired by the doubt cast by a portion of the Polansky Court, the Zafirov defendants sought to dismiss the FCA claims on the ground that it was in conflict with powers afforded to the President under Article II of the Constitution in the Appointments, Vesting and Take Care Clauses. The district court ruled in their favor on the Appointments Clause argument, holding that a relator functioned as an officer of the United States because, among other reasons, she exercised “significant authority” and occupied a “continuing position” under the law.[iv]
The Eleventh Circuit’s Ruling
On appeal, the Eleventh Circuit “disagree[d]” with the district court’s conclusion that “relators qualify as officers of the United States” and vacated the decision.[v] “Relators are not officers of the United States,” the appeals court held, “because” – contrary to the district court’s decision – “they do not occupy a continuing position established by law.”[vi] The Eleventh Circuit explained that there were several components to being an “officer” under the Constitution – tenure, duration, continuing emoluments, and continuing duties despite different persons assuming the office – and a relator did not meet them.[vii] A relator’s tenure and duration in position was “occasional and temporary” because it lasts “the length of one case.”[viii] Similarly, a “one-time award contingent on the success” of a case – all that a relator could hope to receive – was not a “continuing emolument.”[ix] Finally, the relator’s role was personal, a duty to litigate each case he chooses to file, “not one where his duties continue, though the person be changed.”[x]
As such, “while the length of any given FCA case is uncertain and variable,” the Eleventh Circuit summarized, “relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position” and are not officers of the United States.[xi]
What Happens Next and Key Takeaways
The Eleventh Circuit remanded the case back to the district court for consideration of the defendants’ arguments that the FCA is nonetheless unconstitutional under the Vesting and Take Care Clauses of the Constitution. Although the defendants also may seek discretionary review from the U.S. Supreme Court, the Eleventh Circuit’s decision to align with its sister circuits and reject the Appointments Clause attack to the FCA likely renders Zafirov an unattractive vehicle for Supreme Court review. This is because conflict among the circuits is one of the primary reasons for the Supreme Court take a case.[xii]
What about for defendants in other cases? The fact that a trio of sitting Supreme Court Justices have questioned the constitutionality of the qui tam provisions of the FCA will likely still operate as powerful encouragement for FCA defendants to press Appointments Clause challenges in jurisdictions where they have not been addressed by the federal appellate courts. That includes the First Circuit Court of Appeals, which oversees litigation in Rhode Island and Massachusetts federal courts. But as one Rhode Island federal court stated in rejecting an Appointments Clause challenge to the FCA’s qui tam provision while the Zafirov appeal was pending: “Thus far, every circuit court to consider the Appointments Clause issue has ruled precisely the opposite.”[xiii] Thus, the litigants who choose to accept the Polansky justices’ invitation to raise Appointments Clause challenges to the FCA qui tam provision would do well to keep their expectations for success in the lower courts in check.
[i] No. 8:19-cv-01236-KKM-SPF, 2024 WL 4349242, at *1 (M.D. Fla. Sept. 30, 2024) (cited as Zafirov I).
[ii] United States ex rel. Polansky v. Executive Health Resources, Inc. 599 U.S. 419, 442 (2023) (Kavanaugh and Coney-Barrett, JJ., concurring); id. at 449-52 (Thomas, J., dissenting.). The question as to the constitutionality of the qui tam provision was not before the Court.
[iii] U.S. ex. rel. Zafirov v. Fla. Med. Assocs, LLC, No. 24-13581, 2026 WL 2581886,at *1 n.2 (11th Cir. Sept. 1, 2026) (cited as Zafirov II) (collecting federal circuit decisions).
[iv] Zafirov I, 2024 WL 4349242, at *1.
[v] Zafirov II, 2026 WL 2581886, at *1.
[vi] Id.
[vii] Id. at *1, *3-5.
[viii] Id. at *4. Instead, it was like that of an appraiser that the Supreme Court concluded could not satisfy the duration requirement in another case because his employment “did not extend[] over any case further than as he is selected to act in that particular case.” Id. at *4 (brackets in original) (quoting Auffmordt v. Hedden, 137 U.S. 310 (1890)).
[ix] Id. at *5.
[x] Id.
[xi] Id.
[xii] Supreme Court Rule 10.
[xiii] U.S. ex rel. Souza v. Embrace Home Loans, Inc., 808 F. Supp. 3d 314, 330 n.1 (D.R.I. 2025).
