In a decision much anticipated by qui tam litigators,the 11th Circuit Court of Appeals this week ruled that the qui tam provision of the False Claims Act (FCA) does not violate the Appointments Clause in Article II of the U.S. Constitution, reversing and vacating a Middle District of Florida decision from September 2024. Notwithstanding the 11th Circuit’s ruling, uncertainty about the qui tam provision will remain given that three sitting Supreme Court Justices have expressed strong skepticism about the constitutionality of this provision.

The Upshot

• On September 1, the 11th Circuit in United States ex rel. Zafirov v. Florida Medical Associates, LLC vacated a Middle District of Florida decision dismissing a relator’s FCA claims and ruled that the qui tam provisions of the FCA do not violate the Appointments Clause because relators “are not officers of the United States subject to the Appointments Clause.”
• Central to the 11th Circuit’s ruling was its conclusion that relators “do not occupy a continuing position,” and are thus “not officers of the United States subject to the Appointments Clause.”
• With this recent decision, the 11th Circuit has joined all four other circuit courts of appeal that have held that the FCA’s qui tam provisions do not violate the Appointments Clause—the Fifth, Sixth, Ninth, and 10th Circuits—eliminating for now the potential of a circuit split on this issue.

The Bottom Line

In a September 2024 decision from the Middle District of Florida in ...

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