On September 1, 2026, the U.S. Court of Appeals for the 11^th Circuit issued a much-anticipated opinion, upholding the legality of widely-used provisions of the False Claims Act that allow private citizens to sue defendants in the name of the U.S. government to recover for alleged government fraud. In recent years, several U.S. Supreme Court justices have raised questions about the constitutionality of these provisions (known as the “qui tam” provisions), and a federal trial court in Florida held the provisions unconstitutional. However, the 11^th Circuit reversed the Florida trial court and joined the Fifth, Sixth, Ninth, and Tenth Circuits in rejecting challenges to the FCA’s qui tam provision.

Background

The FCA imposes civil liability on any person who knowingly submits a fraudulent claim for payment to the federal government. While the DOJ may enforce the FCA itself, the statute’s qui tam provisions also empower private parties, known as “relators,” to bring suit on behalf of the federal government and recover up to 30% of the resulting judgment.

Although the qui tam provisions have existed for over a century, their constitutionality has been questioned in recent years. Justices Thomas, Kavanaugh, and Barrett have all suggested in concurrences or dissents that qui tam suits may be problematic under Article II of the Constitution, which vests the executive power in the President. Following the Justices’ signals, a Florida district court became the first federal court to hold the FCA’s qui tam provisions unconstitutional under Article II. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024), the district court concluded that relators qualify as “officers of the United States” because they exercise “significant authority” and occupy a “continuing position established by law.” But because they were not appointed by the President, the district court reasoned, they could not lawfully prosecute FCA claims on behalf of the federal government.

Both the relator and the government appealed that decision to the Eleventh Circuit.

The Eleventh Circuit’s Decision

In a unanimous decision, the Eleventh Circuit reversed, holding that relators do not occupy a “continuing position” under Lucia v. SEC, 585 U.S. 237 (2018), and are thus not officers subject to the Appointments Clause. The Court’s holding rested on three characteristics of qui tam relators: (1) that relators’ tenure is “occasional and temporary,” lasting only for the length of the particular case they are prosecuting; (2) that a relator’s potential share of the damages is a one-time, success-based portion of the judgment, and thus not a “continuing emolument”; and (3) that the relator’s role is “personal” and could not be simply succeeded by another. These three characteristics, the Court held, all confirmed that qui tam relators do not hold “continuing positions established by law” and are thus not subject to the Appointments Clause.

Takeaways

There are a few takeaways from the decision:

• The Eleventh Circuit’s decision removes a significant overhang that has loomed over FCA enforcement since the district court’s ruling in 2024. In reversing the district court, the Eleventh Circuit joined four sister courts in holding that the FCA’s qui tam provisions do not violate the Appointments Clause.


• The case, however, is far from over. While the Eleventh Circuit rejected the argument that the FCA’s qui tam provisions violate the Appointments Clause, it did not consider the other Article II arguments that the defendants made under the Take Care and Vesting Clauses. Instead, the Eleventh Circuit remanded the case for the district court to consider those arguments in the first instance. So it is still possible that the Eleventh Circuit invalidates the qui tam provisions on different grounds.


• While the absence of a circuit split reduces the near-term likelihood of Supreme Court review, the ongoing interest of some of the Justices keeps the issue alive for Supreme Court review. Moreover, the possibility of en banc review in the Eleventh Circuit, contrary outcomes on the Take Care Clause and Vesting Clause theories, or a contrary ruling in another circuit could all create additional vehicles for Supreme Court review. Another challenge to the qui tam provision remains pending in the Third Circuit.

Whenever and however the Supreme Court may rule on the issue, the Eleventh Circuit’s opinion remains a significant data point in FCA litigation. Baker Botts will continue watching developments closely.

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