Zafirov Update: Eleventh Circuit Sides With Relators on Appointments Clause, But Article II Challenges Remain

On September 1, 2026, the Eleventh Circuit issued its long-awaited decision in United States ex rel. Zafirov v. Florida Medical Associates, vacating the district court’s ruling that the False Claims Act’s (FCA) qui tam provisions violate the Appointments Clause of Article II. The court found that FCA relators are not “Officers of the United States” because they do not occupy a “continuing position established by law,” and therefore are not subject to the Appointments Clause’s requirements. The Eleventh Circuit’s decision aligns with decisions from other circuits rejecting similar Appointments Clause challenges, but it is the first to do so since Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources.

Although the Eleventh Circuit rejected the Appointments Clause challenge, the decision was narrow. The court remanded for consideration of the defendants’ remaining Vesting and Take Care Clause arguments. The takeaway: Article II issues are not going away. We anticipate defendants will continue to raise Vesting and Take Care Clause arguments in Zafirov and in other declined cases where viable under existing circuit precedent.

Summary

As previously reported here, the September 2024 district court decision held that the FCA’s qui tam provisions violate the Appointments Clause because relators exercise significant executive authority without being appointed pursuant to Article II. The court concluded that relators are constitutional officers and that the FCA improperly allows private parties to “self-appoint” by filing suit in the government’s name.

The Eleventh Circuit disagreed.

Applying the Supreme Court’s framework from Lucia v. SEC, the court explained that an individual is an officer subject to the Appointments Clause only if two requirements are satisfied: the individual must (1) exercise significant authority under federal law and (2) occupy a continuing position established by law. The court assumed, without deciding, that the Lucia framework governs relators and concluded that the case turned on the second requirement. Because relators do not occupy a continuing position, the court found it unnecessary to address whether they exercise significant executive authority.

When explaining what constitutes a “continuing position,” the Eleventh Circuit identified several characteristics traditionally associated with constitutional officers, including permanent tenure, a continuing emolument (i.e., compensation), and ongoing duties. For qui tam relators, the court concluded that all three characteristics were absent.

First, the court concluded that a relator’s tenure is temporary and case-specific. A relator participates in a single FCA action and has no continuing responsibilities once the litigation ends. Although some qui tam suits remain pending for years, the court reasoned that the relevant inquiry is not the length of a particular lawsuit but whether the position itself is permanent rather than intermittent.

Second, the court emphasized that relators do not receive a continuing emolument. Unlike government officials who receive compensation through a continuing office, relators receive a contingent share of a recovery only if the case succeeds. The court analogized that arrangement to the fee-based compensation in United States v. Germaine, which likewise did not resemble the continuing compensation traditionally associated with public office. 

Third, the court determined that a relator’s duties are personal rather than institutional. If a relator abandons a case, a different relator cannot assume that role. This distinction, the court found, separates relators from independent counsels and other recognized officers whose duties continue even when the individual occupant changes.

The court also rejected the district court’s concept of an ongoing “office of relator.” According to the Eleventh Circuit, the FCA creates no such office and, in any event, the “continuing position” analysis turns on whether the individual’s position is continuing, not whether the position of an unfilled office continues between different relators.

Holding that relators are not officers subject to the Appointments Clause, the court vacated the district court’s dismissal order and remanded for the district court to consider the defendants’ Vesting and Take Care Clause arguments.

Implications

Several aspects of the decision are particularly noteworthy. 

First, Zafirov does not create a circuit split on the Appointments Clause question. The Eleventh Circuit has now joined the Fifth, Sixth, Ninth, and Tenth Circuits in rejecting Appointments Clause challenges to the FCA’s qui tam provisions. The absence of a circuit split materially decreases the chances the Supreme Court might grant certiorari.

Second, the court resolved the case on narrow grounds. Notably absent from the opinion is any discussion of whether relators exercise “significant authority” or wield executive power. Instead, the court confined its discussion to the continuing-position requirement of the Appointments Clause analysis. The opinion thus leaves untouched many of the concerns raised by Justice Thomas in Polansky. That narrow approach may prove significant in any further proceedings. 

Third, the constitutional challenge has shifted rather than disappeared. The headline result is a clear victory for relators, but a mixed bag for the government because the Eleventh Circuit left the door open for further Article II litigation. 

Those watching closely may not be surprised. At oral argument, Judge Luck asked the parties whether the constitutional issue would be more appropriately considered under the Vesting and Take Care Clauses. Because Judge Mizelle did not rule on those issues below, Judge Luck suggested that remand may be appropriate. Both the government and defendants pushed back, urging the Eleventh Circuit to decide those fully briefed legal issues. It appears Judge Luck’s view prevailed.

This situation puts the government in a difficult position. Some commentators (and judges) have suggested that the strongest constitutional objections to the FCA’s qui tam provisions arise from the President’s control over federal enforcement litigation, rather than from the mechanics of appointment. Generally speaking, the current administration subscribes to the maximalist view of executive authority, which is in tension with the Article II arguments challenging the qui tam. 

On remand, the government may be forced to answer an uncomfortable question: whether relators exercise executive power. In the Zafirov appeal, the government sidestepped that question by explaining that “[i]f Congress’s use of the qui tam mechanism were a new development, these features of qui tam actions under the False Claims Act would give rise to substantial questions about whether such actions are consistent with the Vesting and Take Care Clauses of Article II.” But that rhetorical dodge is at odds with the current administration’s successful argument in Trump v. Slaughter that the independent structure of the Federal Trade Commission (FTC) under the FTC Act, enacted in 1914, violated those very same Article II strictures. The vintage of the statute has nothing to do with the principle at issue. (Notably, the FCA, like the FTC Act, long post-dates the enactment of Article II, foreclosing any argument that the FCA's qui tam provisions were crafted by the framers of Article II and somehow reflect their understanding of the scope of the Vesting and Take Care Clauses). It is unclear how — whether on remand or in other cases — the government will be able to distance itself from its maximalist (and, thus far, successful) arguments as to the scope of Article II in its defense of the FCA’s qui tam provisions.

Conclusion

Given the absence of a circuit split, Zafirov will likely return to district court, rather than head north to the Supreme Court on certiorari. On remand, Judge Mizelle may have a second opportunity to weigh in on the other constitutional arguments raised by defendants. In the unlikely event certiorari is sought, Zafirov could provide another opportunity for the Justices to articulate their views on the Appointments Clause challenge. Conceivably, Zafirov could ping pong down to Judge Mizelle, then back to the Eleventh Circuit, and perhaps then up to the Supreme Court. For now, Article II challenges will continue to be a hot topic. The Eleventh Circuit’s decision preserves the status quo and the qui tam provisions survive Appointments Clause scrutiny, but the Article II issues are not going away.
 

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