Eleventh Circuit Rejects Appointments Clause Challenge to False Claims Act Whistleblower Provision

The binding constraint for a private citizen to prosecute a civil lawsuit on behalf of the United States is whether they are acting as an "Officer of the United States" under Article II of the Constitution. On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit ruled that they are not, preserving a mechanism that drives the majority of federal fraud recoveries.[1]

In a unanimous decision, the appellate panel vacated a 2024 ruling by U.S. District Judge Kathryn Kimball Mizelle in United States ex rel. Zafirov v. Florida Medical Associates, LLC. The lower court had dismissed the case, concluding that the False Claims Act's qui tam provision violated the Appointments Clause because whistleblowers—known as relators—wielded significant executive authority without presidential appointment.[2][5]

The Eleventh Circuit reversed that finding by applying the Supreme Court's two-part test from Lucia v. SEC. The panel determined that relators do not occupy a "continuing position established by law."[5][6]

Because a relator's role is temporary and personal to a specific lawsuit, terminating when that specific litigation concludes, the court held that the position lacks the permanence required to classify the individual as a constitutional officer. Having failed the first prong of the Lucia test, the court concluded it did not need to address the second prong regarding whether relators exercise "significant authority."[1][5]

The ruling maintains the status quo for a statute that serves as the Department of Justice's primary anti-fraud enforcement tool. In 2025, False Claims Act recoveries reached a record $6.8 billion, driven by an all-time high of nearly 1,300 qui tam filings across the healthcare, defense, and cybersecurity sectors.[5]

By upholding the provision, the Eleventh Circuit joins the Fifth, Sixth, Ninth, and Tenth Circuits, maintaining an unbroken appellate consensus. This alignment avoids a circuit split, which reduces the immediate likelihood that the Supreme Court will grant certiorari to review the Appointments Clause question.[2][6]

The recent wave of constitutional scrutiny stems from a 2023 Supreme Court case, United States ex rel. Polansky v. Executive Health Resources. In a dissenting opinion, Justice Clarence Thomas—joined by Justices Brett Kavanaugh and Amy Coney Barrett—invited challenges to the qui tam mechanism, suggesting there were substantial arguments that it violates Article II.[1][6]

While the Eleventh Circuit resolved the Appointments Clause question, the constitutional debate remains active. The appellate court remanded the Zafirov case back to the Middle District of Florida to consider the defendants' remaining constitutional challenges.[1][2]

On remand, the district court will evaluate whether the qui tam provision violates the Take Care Clause or the Vesting Clause of Article II. Defendants argue that the statute improperly allows private individuals to initiate and control federal enforcement actions without adequate oversight by the executive branch.[5][6]