Shut Door, Open Window: Eleventh Circuit Vacates Landmark District Court Ruling That the False Claims Act’s Qui Tam Provisions Violate the Appointments Clause

On September 1, 2026, the United States Court of Appeals for the Eleventh Circuit issued its widely anticipated decision in United States ex rel. Zafirov v. Florida Medical Associates, LLC, vacating a district court order holding the False Claims Act’s (“FCA”) qui tam provisions unconstitutional under the Appointments Clause of Article II of the U.S. Constitution. The Eleventh Circuit held that relators do not occupy a “continuing position established by law” and thus are not “Officers of the United States” subject to the Appointments Clause. The Eleventh Circuit joined four other circuits (the Fifth, Sixth, Ninth, and Tenth) that had previously rejected similar Appointments Clause challenges to the FCA’s qui tam provisions. However, the Eleventh Circuit remanded the case for the district court to evaluate the defendants’ alternative constitutional arguments under Article II’s Take Care Clause and Vesting Clause — arguments that remain unresolved and provide an alternative pathway for the defendants to challenge the qui tam mechanism.

The Eleventh Circuit’s narrow decision is a mixed bag, offering a win for the relator’s bar and the Department of Justice (“DOJ”) on one issue while at the same time leaving an opening for other constitutional challenges to the qui tam device grounded in Article II’s Take Care and Vesting Clauses. Defendants in qui tam cases will likely continue to make arguments about the constitutionality of the FCA’s qui tam device under those clauses (and the Appointments Clause), although the decision seems to make review before the U.S. Supreme Court on the Appointments Clause issue less likely to occur any time soon. And for the parties in Zafirov, the Eleventh Circuit’s decision to expressly decline to weigh in on the separate Appointments Clause issue of whether relators exercise significant executive authority may prove consequential for the remanded proceedings, giving room to the district court to potentially strike down the qui tam statute under the Take Care or Vesting Clause under a similar theory.

In this article, we provide an overview of the Eleventh Circuit’s decision and its implications for companies subject to FCA investigations and litigation and other stakeholders.

Background: The District Court’s Decision

In 2019, Dr. Clarissa Zafirov filed a qui tam action alleging that the defendants violated the FCA by misrepresenting patients’ medical conditions to Medicare. The United States declined to intervene, and the case proceeded for several years until 2024, when the defendants moved for judgment on the pleadings, arguing that the FCA’s qui tam provisions violated Article II’s Appointments Clause, Take Care Clause, and Vesting Clause.

The district court granted the defendants’ motion, holding that the FCA’s qui tam provisions violated Article II’s Appointments Clause. That clause requires principal “Officers of the United States” to be appointed by the President and inferior officers to be appointed by the President, the courts, or “the Heads of Departments.” Relators are not appointed in accordance with the Appointments Clause, so if they qualify as “Officers of the United States,” the FCA’s qui tam provisions violate that clause.

Applying a two-part test to distinguish government “officers” subject to the Appointments Clause from mere “employees” who are not, the district court held that relators are officers on grounds that they exercise “significant authority pursuant to the laws of the United States” and occupy a “continuing position established by law.”

According to the district court, relators’ civil enforcement authority constitutes “significant authority” because similar enforcement authority qualifies Federal Election Commission members and special prosecutors as government officers. The district court further held that relators occupy a continuing position — an “office of relator” — reasoning that “the office of relator exists whether a person is appointed to that office or not, making that office ‘continuous and permanent.’” The district court rejected arguments that historical examples of qui tam provisions from the founding era supported the FCA’s constitutionality, and dismissed the case because the relator was not appointed in accordance with the Appointments Clause. The district court did not reach the defendants’ separate arguments under Article II’s Take Care and Vesting Clauses.

The Eleventh Circuit’s Decision

In reversing the district court, the Eleventh Circuit narrowly held that relators do not occupy a “continuing position” and thus are not officers of the United States. The Eleventh Circuit’s analysis focused exclusively on the “continuing position” prong of the Appointments Clause standard — critically, it did not address whether relators exercise “significant authority.”

Drawing on Supreme Court precedent, the Eleventh Circuit examined four factors: (1) tenure, (2) duration, (3) emoluments, and (4) the nature of relators’ duties. The court held that none of the four inquiries indicated that relators occupy a “continuing position.”

Tenure. Citing Supreme Court cases, the Eleventh Circuit explained that a relator’s tenure is “occasional and temporary” rather than “permanent.” A relator’s tenure lasts the length of one case; a relator may bring multiple cases in a year or none; and relators are not required to keep a place of business. If the government or a court dismisses a relator’s case, or if the case settles, the relator has no remaining duties.

Duration. While the defendants argued that some relators pursue FCA cases for several years, the Eleventh Circuit found this fact did not alter its conclusion. Looking to Supreme Court precedent, the court noted that the duration inquiry focuses on whether duties are “permanent” or “occasional and intermittent” — not on the overall length of time a person spends fulfilling duties in any given case.

Emoluments. The Eleventh Circuit concluded that a relator does not receive a “continuing emolument.” A relator receives payment only as a one-time award contingent on success; receives compensation through a portion of the judgment rather than a regular appropriation; works on an intermittent basis; and faces no penalty for a refusal to perform except for loss of the opportunity to receive a contingent fee.

Personal Duties. Finally, the Eleventh Circuit held that a relator occupies a personal role, not one where his “duties continue, though the person be changed.” A relator assumes a duty to litigate each case that he files, and his role in the case cannot be assumed by anybody else (except for the Attorney General when the government intervenes). The court rejected the defendants’ argument that one relator can replace another if a relator dies or goes into bankruptcy, explaining that in those circumstances a personal representative or trustee carries forward the case on behalf of the relator’s estate — the relator is not “replaced.”

The court also rejected the defendants’ argument comparing relators to the role of the independent counsel created by statute to investigate and prosecute certain high-ranking Government officials for violations of federal criminal laws, which the Supreme Court has held to be an “officer” even though its role is temporary. 

Finally, the Eleventh Circuit rejected the defendants’ argument that the FCA created an “office of relator” that is continuous regardless of the status of any one case. The court observed that “there is no ‘office of relator’; that term is not in the FCA or any other law.” Further, the court held that the defendants’ argument “improperly analyzes whether the office is a continuing one, when the proper inquiry is whether an individual occupies a continuing position.” The Eleventh Circuit explained that the Supreme Court’s methodology focuses on the specific actions the individual undertakes as part of his role — not on the existence of an unfilled position.

Remand for Consideration of Take Care and Vesting Clause Arguments

The Eleventh Circuit expressly left the defendants’ alternative constitutional arguments under Article II’s Take Care and Vesting Clauses for the district court to address on remand. The court stated that it would “address only the qui tam provisions’ constitutionality under the Appointments Clause and remand for the district court to consider the Take Care Clause and Vesting Clause arguments in the first instance.”

Shutting a Door While Leaving a Window Open: Implications of the Court’s Silence on “Significant Authority” and its Impact More Broadly

The Eleventh Circuit’s decision offers mixed results by rejecting one line of attack on the qui tam provisions of the FCA while keeping other lines of attack open. Also, it is far from clear how the Eleventh Circuit’s decision may influence litigation over similar issues in other courts. In this regard, there is likely to be continued litigation about the lawfulness of qui tam cases, including in other Circuits, and the issue seems unlikely to be put to rest in the lower courts any time soon.

The Zafirov decision was closely watched by FCA practitioners as a potential vehicle for the U.S. Supreme Court to take up the question of the qui tam statute’s constitutionality. It is possible that the defendant in Zafirov may petition for rehearing of the Court’s decision en banc, and it may also petition for certiorari in the U.S. Supreme Court. For the time being, however, the lack of a split between the Circuits on this issue (other Circuits have so far upheld the qui tam statute’s constitutionality) makes either en banc review in the Eleventh Circuit or Supreme Court review relatively less likely. Defendants are likely to continue to press arguments about the constitutionality of qui tam cases (perhaps relying more heavily on the Take Care and Vesting Clauses than the Appointments Clause) inspired by Justice Thomas’ dissenting opinion in United States ex rel. Polansky v. Exec. Health Resources, Inc., 599 U.S. 419, 449 (2023) citing “substantial arguments that the qui tam device is inconsistent with Article II.” Fifth Circuit Judges Ho and Duncan have urged reconsideration of Fifth Circuit precedent on the qui tam provisions’ constitutionality in light of Justice Thomas’ Polansky opinion.

Notably, the Eleventh Circuit’s decision to resolve the Appointments Clause issue based solely on the ground that relators do not occupy a “continuing position” meant that the Eleventh Circuit did not weigh in on alternative arguments regarding the separate Appointments Clause inquiry of whether relators exercise significant executive authority. If the Eleventh Circuit had addressed the parties’ significant-executive-authority arguments, the Eleventh Circuit’s decision could have effectively constrained the district court’s freedom on remand in analyzing the Take Care and Vesting Clause issues, which raise similar questions of whether relators exercise significant powers that the Constitution vests exclusively in the President.

Instead, the Eleventh Circuit’s decision not to address those issues in its opinion may grant the district court a freer hand in deciding the issues on remand. In other words, while the Eleventh Circuit decisively shut the Appointments Clause door, it also appears to have consciously left the Take Care and Vesting Clause windows open.

The district court will now have a relatively clean slate to evaluate whether relators exercise executive power in a manner that implicates the Take Care and Vesting Clauses — without a thumb on the scale on that question from the Eleventh Circuit’s opinion. The significant-executive-authority question lies at the heart of the Take Care and Vesting Clause arguments that remain for the district court to decide on remand. Article II’s Vesting Clause provides that the “executive Power shall be vested in a President of the United States of America.” The Take Care Clause provides that the President “shall take Care that the Laws be faithfully executed.” Central to the defendants’ arguments under both Clauses is the question of whether relators exercise significant executive authority that the Constitution grants exclusively to the President. The defendants in Zafirov argued that relators exercise “core executive power” by initiating civil enforcement actions on behalf of the United States — a function that they contend lies at the heart of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” By resolving the Appointments Clause issue on the “continuing position” prong alone, the Eleventh Circuit left the significant-executive-authority question unanswered. Thus, absent a rehearing en banc in the Eleventh Circuit, the Middle District of Florida will take up the issues on remand.

Notwithstanding Zafirov, the issue of the constitutionality of the FCA’s qui tam provisions may be taken upon by other Circuits and lower courts in other cases. Companies in regulated industries including health care and government procurement will continue to face heightened FCA risks, including from qui tam lawsuits. DOJ recovered more than $6.8 billion in FCA settlements and judgments in FY 2025—an all-time high—and there are signs that FY 2026 may be another record-breaking year for FCA enforcement.

For more information about the Eleventh Circuit’s decision or the False Claims Act, please reach out to our team.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.