The FCA’s Qui Tam Provisions at Issue

The FCA imposes liability on any person who knowingly presents a false or fraudulent claim to the federal government for payment.² The statute’s qui tam provisions allow private individuals, known as “relators,” to bring civil enforcement actions in the government’s name.³ A relator files the complaint under seal, and the government has at least 60 days to decide whether to intervene. If the government declines, the relator may proceed alone. Successful relators can receive up to 30% of the recovery.

The Underlying District Court Decision

In 2019, Dr. Clarissa Zafirov filed a qui tam action under the False Claims Act in the Middle District of Florida against her employer and related entities. She alleged that the defendants knowingly submitted false diagnosis codes to obtain more Medicare reimbursements than they were entitled to receive.

In February 2024, the defendants moved for judgment on the pleadings, arguing that the FCA’s qui tam provisions violate three aspects of Article II: the Appointments Clause, the Take Care Clause, and the Vesting Clause. Although the United States declined to intervene to pursue Dr. Zafirov’s claims, it later intervened for the limited purpose of defending the FCA’s qui tam provisions against the defendants’ constitutional challenges.

The district court held that the qui tam provisions violate the Appointments Clause, which “retains accountability in the Executive Branch by creating a two-track system for appointing ‘Officers of the United States.’”⁴ To determine whether the relator qualified as an officer of the United States, the court applied the two-part test from Lucia v. SEC, 585 U.S. 237, 245 (2018), which asks whether an individual (1) occupies a “continuing position established by law” and (2) exercises “significant authority.” The district court found that the relator satisfied both prongs.⁵ It therefore dismissed Dr. Zafirov’s case, reasoning that she—not having been appointed in conformity with the Appointments Clause—lacked authority to pursue a civil enforcement action on behalf of the United States.⁶ The district court did not address the defendants’ Take Care Clause or Vesting Clause arguments.

The Eleventh Circuit’s Holding

The Eleventh Circuit vacated the district court’s dismissal order in a unanimous panel opinion.⁷ The court expressly aligned itself with every circuit that has addressed an Appointments Clause challenge to the FCA’s qui tam provisions.⁸

The court resolved the case on the first prong of the Lucia test, concluding that FCA relators do not occupy a continuing position established by law.⁹ The court identified four hallmarks of a “continuing position” and found that relators possess none of them:

• Tenure. A relator’s role is occasional and temporary, lasting only the length of a single case.
• Duration. The length of a case is irrelevant. The question is whether duties are “permanent” rather than “occasional and intermittent.”
• Emolument. A relator’s payment is a one-time, success-contingent award paid from the judgment as opposed to a regular salary.
• Duties. A relator’s role is uniquely personal. If the relator dies or files for bankruptcy, no replacement steps in.

As the district court had not addressed them, the panel also did not reach the Take Care Clause or Vesting Clause arguments. It remanded those issues to the district court for consideration in the first instance.

Key Takeaways

The decision narrows the path for Article II challenges to the FCA’s qui tam provisions but does not foreclose future attacks. Key takeaways follow:

• Take Care and Vesting Clause challenges remain open. The panel resolved only the Appointments Clause question. On remand, the district court will address (1) the Take Care Clause (presidential supervision of relators) and (2) the Vesting Clause (executive power over civil enforcement). As a result, the ultimate resolution of the Article II challenge to the qui tam provisions remains unsettled.
• No circuit split. Five circuits—the Fifth, Sixth, Ninth, Tenth, and now Eleventh—have upheld the FCA’s qui tam provisions against Article II challenges. But the Eleventh Circuit’s decision is the first appellate decision on the issue since Justice Clarence Thomas’s 2023 dissent in United States ex rel. Polansky v. Executive Health Resources. In that case, Justice Thomas opined that “there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits.”¹⁰ Justices Brett Kavanaugh and Amy Coney Barrett expressed agreement with Justice Thomas’s view in a concurrence.
• The “significant authority” question is unresolved. Because the court decided the case on the continuing-position prong, it did not decide whether relators exercise significant authority or core executive power under step two of the Lucia test. These questions—which ask whether relators wield executive power without adequate presidential supervision—were central to Justice Thomas’s Polansky dissent. They will be foundational to the Take Care Clause and Vesting Clause challenges on remand.

Conclusion

The Eleventh Circuit’s decision maintains the role of relators in FCA litigation—at least for now. But the holding is narrow and addresses only the Appointments Clause arguments. The constitutionality of the FCA’s qui tam provisions will continue to be tested in this case and in other cases around the country. As the district court considers those issues on remand, it will be important for FCA defendants to closely monitor this case as well as challenges in other circuits.¹¹