False Claims Act Survives Constitutional Challenge in Eleventh Circuit

Last year we posted about the “Frontal Assault” on the constitutionality of the False Claims Act (“FCA”), mounted in United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp.3d 1293 (M.D. Fla. 2024).  We pointed out that the district court in Zafirov had adjudicated one of the constitutional questions raised by three Supreme Court justices in their concurring and dissenting opinions in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023).  The district court agreed with the concurring justices.

Now we report, somewhat belatedly by Blog standards, that on appeal the Eleventh Circuit did not agree and reversed.  United States v. Florida Medical Assocs., LLC, ___ F.4th ___, 2026 WL 2581886 (11th Cir. Sept. 1, 2026) (“Zafirov”).  The district court had held that FCA “relators” were irregularly appointed “federal officers” under Article II’s Appointment Clause.  The Eleventh Circuit “disagree[d] and h[e]ld that relators are not officers of the United States because they do not occupy a continuing position established by law.”  Id. at *1.

The appellate court reasoned that status of a private plaintiff as “relator” was not “continuing” because:

• “[A] relator’s tenure is occasional and temporary because it lasts the length of one case”;
• Once that case is over, “the relator has no remaining duties”;
• “[T]he overall length of” time that an individual case is pending does not matter, since a relator has no “tenure”;
• The “one-time” contingent fee that a successful relator obtains under the FCA “is not continuing”;
• The relator’s recovery is “a portion of the judgment, if any, not through any regular appropriation.”
• “A relator occupies a personal role, not one where his duties continue, though the person be changed.”
• Unless the government intervenes in an FCA case, a relator’s “role in the case cannot be assumed by anybody else.”

Zafirov, 2026 WL 2581886, at *4-5 (citations and quotation marks omitted).

Zafirov rejected any analogy to the roles of federal independent counsel because, although such appointments were “temporary” and “single task,” it was not “personal,” since a successor could pick up where the prior independent counsel left off, and independent counsel were also on the “public payroll.”  Id. at *6.  So, even if some temporary personnel could be considered “federal officers,” FCA relators were not among them, according to Zafirov.  The opinion also declared that, despite the qui tam provisions of the FCA, there was no “office of relator” waiting for any random person claiming inside information to fill it.  Id.

That was as far as the Eleventh Circuit went in Zafirov, because that was all the district court had decided.  The Eleventh Circuit “remand[ed] for the district court to evaluate the defendants’ Take Care Clause and Vesting Clause arguments.”  Frankly, we have always thought that the Take Care argument was the best one, because what the FCA does – arguably unconstitutionally – is for the Legislative Branch to seize a portion of the Executive Branch’s power to “take care that the laws are faithfully executed” and to turn it over to anybody in the country who claims to have some inside knowledge of some sort of wrongdoing that produces “false” claims.”  Or, as the dissenting opinion in Polansky put it, more elegantly:

There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. Because the entire “executive Power” belongs to the President alone, it can only be exercised by the President and those acting under him.  And, as a lawsuit is the ultimate remedy for a breach of the law, . . . conducting civil litigation  for vindicating public rights of the United States is an executive function that “may be discharged only by persons who are “Officers of the United States”. . . .  It thus appears to follow that Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.

599 U.S. at 449 (citations and quotation marks omitted).

Whether someone is a federal “officer” is, as Zafirov demonstrates, subject to a lot of technicalities.  However, the more fundamental separation-of-powers issue of whether Congress has the power to delegate enforcement of the laws of the United States to non-executive personnel is not.  Thus, the constitutionality of the FCA’s qui tam provisions is far from settled.