Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—11th Cir.: False Claims Act whistleblowers survive Appointments Clause challenge, (Sep 3, 2026)

By George Basharis, J.D.

False Claims Act relators do not need presidential appointment to pursue fraud claims on the government’s behalf.

Private whistleblowers who pursue False Claims Act (FCA) cases on behalf of the government do not need presidential appointments because their case-specific roles lack the permanence, continuing compensation, and transferable duties characteristic of federal office, the U.S. Court of Appeals for the Eleventh Circuit held. Rejecting a constitutional ruling that threatened the FCA’s longstanding qui tam enforcement mechanism, the court of appeals concluded that relators do not occupy “continuing” positions subject to the Constitution’s Appointments Clause. The decision revives a Medicare fraud action dismissed on that ground but leaves the defendants free to pursue separate challenges under the Take Care and Vesting Clauses (U.S. ex rel. Zafirov v. Florida Medical Associates, LLC , No. 24-13581 (11th Cir. Sept. 1, 2026)).

Background. A physician brought the qui tam action in 2019 against her employer, Florida Medical Associates and related entities. She asserted that the companies knowingly submitted false diagnosis codes to obtain inflated Medicare payments. The federal government declined to intervene, leaving the physician to litigate the action on its behalf.

After several years of litigation, the companies challenged the FCA’s qui tam provisions under Article II. They argued that relators exercise significant federal enforcement authority without presidential appointment in violation of the Appointments Clause, operate without sufficient presidential supervision in violation of the Take Care Clause, and wield executive power that the Vesting Clause assigns to the president. The government then intervened for the limited purpose of defending the statute’s constitutionality.

The district court accepted the Appointments Clause challenge. It concluded that FCA relators exercise significant federal authority and occupy a continuing position created by law, making them officers of the United States who must be constitutionally appointed. Because the physician had not been appointed, the district court dismissed the action without reaching the Take Care or Vesting Clause challenges.

The lower court concluded that the temporary nature of an individual relator’s role did not prevent the FCA from creating a continuing “office of relator” (see Relator action dismissed as ultra vires, unconstitutional under Appointments Clause (Oct. 3, 2026)). Although each relator prosecutes only a particular action, the court reasoned that the FCA establishes duties and enforcement powers for anyone who assumes that role and provides a potential share of any recovery. In its view, those statutory features created an office that continues to exist even as individual relators and cases come and go. That reasoning conflicted with every federal appellate decision to address the issue.

No continuing position. The Eleventh Circuit rejected the district court’s conception of a continuing “office of relator,” concluding that the relevant inquiry focuses on the position occupied by an individual relator. Under Supreme Court precedent, an individual qualifies as an officer subject to the Appointments Clause only if the person exercises significant authority under federal law and occupies a continuing position established by law. Because relators do not satisfy the second requirement, the appellate court found no need to decide whether they exercise significant federal authority.

A relator’s tenure is temporary and intermittent because it extends only through a particular case. A relator may pursue several FCA actions in a year or none at all, and once an action is dismissed or settled, the relator has no remaining duties. The fact that some FCA cases last for years did not change that conclusion. The Supreme Court has measured duration by whether the duties are permanent or instead occasional and intermittent, not by how long a particular assignment happens to last. A relator’s duties extend no further than the individual action being pursued.

Compensation pointed in the same direction. A successful relator may receive a percentage of the proceeds from a judgment or settlement, but that payment is a one-time award contingent on success rather than continuing compensation from a regular government appropriation. A relator who declines to pursue a case faces no penalty beyond losing the opportunity for a potential recovery. Those characteristics mirrored factors the Supreme Court previously relied on in finding that an individual lacked the continuing compensation associated with federal office.

A relator’s duties are personal as well. The relator assumes responsibility for the particular action filed, and another relator generally cannot take over that role. Even if a relator dies or enters bankruptcy, a personal representative or bankruptcy trustee carries forward the existing claim on the relator’s behalf rather than assuming a separate governmental position. The inability to transfer those duties further undermined the notion of a continuing office.

The relator’s temporary tenure, lack of continuing compensation, and personal duties thus led the Eleventh Circuit to conclude that relators do not occupy the continuing position necessary to qualify as officers under the Appointments Clause.

Independent counsel distinguished. The companies argued that a relator’s temporary, case-specific role could still qualify as a continuing position under Morrison v. Olson, 487 U.S. 654 (1988). In Morrison, the Supreme Court treated an independent counsel as a federal officer even though the counsel served temporarily and was appointed to accomplish a defined task. The Eleventh Circuit concluded that other features of the position made the comparison inapt.

Unlike a relator, an independent counsel could be replaced by a successor who assumed the same jurisdiction and continued unfinished investigations and prosecutions. The independent counsel also received compensation through a federal appropriation. By contrast, FCA relators cannot be replaced by another relator who assumes their duties and receive only a contingent share of any judgment or settlement. Those differences reinforced the conclusion that a relator does not occupy the type of continuing position at issue in Morrison.

The Eleventh Circuit found a closer comparison in a customs appraiser the Supreme Court determined was not a federal officer. The appraiser was selected for a particular matter based on specialized knowledge and performed no general functions beyond that assignment. Similarly, an FCA relator brings knowledge of fraud involving a particular case but performs no general governmental functions beyond the litigation.

The companies also could not establish a continuing position by treating all FCA relators as occupants of a perpetual “office of relator.” The phrase appears nowhere in the FCA or other federal law, and the proper inquiry focuses on whether the individual relator occupies a continuing position. Defining an abstract office that remains available whenever someone files a qui tam action could not supply the continuity that an individual relator’s role lacks. Therefore, the Eleventh Circuit joined the Fifth, Sixth, Ninth, and Tenth Circuits in holding that FCA relators are not officers subject to the Appointments Clause.

Other challenges remain. Although the Appointments Clause does not bar the physician’s qui tam action, the Eleventh Circuit left two other Article II challenges unresolved. The companies contend that the FCA violates the Take Care Clause because the president lacks sufficient supervision and control over relators exercising executive authority. They separately argue that the Vesting Clause bars private parties from exercising the executive power to bring civil enforcement actions on behalf of the United States.

The district court did not reach either argument after finding an Appointments Clause violation, and the Eleventh Circuit declined to decide them in the first instance. It vacated the dismissal and returned the case to the district court to consider the Take Care and Vesting Clause challenges.

The case is No. 24-13581.

Judge: Branch, E.

Attorneys: Daniel Winik, U.S. Department of Justice, for the U.S. Jennifer M. Verkamp (Morgan Verkamp, LLC) for Dr. Clarissa Zafirov. Jason P. Mehta (Foley & Lardner, LLP) for Florida Medical Associates, LLC d/b/a VIPcare, Physician Partners, LLC and Anion Technologies, LLC.

Companies: Florida Medical Associates, LLC d/b/a VIPcare; Physician Partners, LLC; Anion Technologies, LLC

Cases: Whistleblowers Retaliation AlabamaNews FloridaNews GeorgiaNews