Earlier this month, the 11thh Circuit Court of Appeals joined the 5th, 6th, 9th and 10th Circuits in holding that the qui tam provisions of the False Claims Act (FCA) do not violate the Appointments Clause of the United States Constitution.
The case, United States ex rel. Zafirov v. Fla. Med. Assocs., LLC et al.,[1] commenced in 2019 and involved allegations that the defendant had knowingly submitted false diagnosis codes to receive inflated Medicare reimbursement amounts. After litigating the case for several years, the defendants moved to dismiss the case on several constitutional grounds, including that the qui tam provisions of the False Claims Act allegedly violated the Appointments Clause of the federal Constitution because “relators exercise significant federal authority in a continuing position without appointment by the President.” The district court, agreeing with the defendants, dismissed the case under the Appointments Clause which “requires that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.’”[2]
The 11th Circuit reversed. The court noted two requirements under the Appointment Clause in determining whether someone is an officer of the United States: “first, he must ‘occupy a “continuing”’ position established by law’; second, he must ‘exercise significant authority pursuant to the laws of the United States.’”[3] The court concluded that relators do not occupy a “continuing position” because:
(a) a relator has only “intermittent, nonpermanent tenure” since “it lasts the length of one case, a relator may bring multiple cases in a year or none . . . relators are not required to keep a place of business” and if the case is dismissed or settles “the relator has no remaining duties”[4];
(b) for the same reason of limited tenure, a relator’s position lacks sufficient “duration” to make it a “continuous”[5];
(c) “to the extent that a relator’s entitlement to a portion of the judgment in a successful FCA case can be considered an “emolument,” it certainly is not “continuing” because a relator (1) only receives payment as a one-time award contingent on the success of his case; (2) receives compensation through a portion of the judgment, if any, not through any regular appropriation; (3) works on an intermittent basis (whenever he has a claim to pursue and the litigation is active); and (4) faces no penalty for a refusal to perform except for the loss of his opportunity to receive a contingent fee for succeeding in a given case[6]; and
(d) the relator’s role is not a continuing one because “a relator’s duties are personal and cannot be assumed by others.”[7]
The court summed up by stating that “while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position.” The court sent the case back to the district court for further evaluation of defendants’ remaining constitutional arguments.
If you have any questions about this article or the impact of this decision, you may contact the author at Geoffrey.Kaiser@rivkin.com or (516) 357-3161.
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[1] United States ex rel. Zafirov v. Fla. Med. Assocs., LLC et al., No. 24-13581, 2026 WL 2581886 (11th Cir. Sept. 1, 2026)
[2] Zafirov at *3 (citing U.S. Const. art. II, § 2, cl. 2).
[3] Id. (citations omitted).
[4] Zafirov, at *4.
[5] Id.
[6] Zafirov, at *5.
[7] Id.
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