The United States Court of Appeals for the Eleventh Circuit upheld the constitutionality of the Qui Tam provisions of the United States False Claims Act (FCA) in a decision published on September 1, 2026. The Court of Appeals found that the Relator Qui Tam provisions of the FCA did not violate the Appointments Clause of the United States Constitution, upholding a private citizens ability to sue entities and individuals for allegedly defrauding the Federal government. The constitutionality of the Qui Tam provisions of the FCA had previously been upheld by the Fifth, Sixth, Ninth and Tenth Circuit Courts of Appeal. A previous Supreme Court decision in U.S. ex rel. Polansky v. Executive Health Resources, 599 U.S. 419, 426 (2023), included a dissent by Chief Justice Clarence Thomas who gratuitously suggested that the issue of the constitutionality of the FCA should be revisited.  A subsequent decision in the Middle District of Florida by Judge Kathryn Kimball Mizelle, Justice Thomas’s former law clerk, in the case of U.S. ex rel. Clarissa Zafirov v. Florida Medical Associates et al. found that the Qui Tam provisions of the FCA violated the Appointments Clause of the Constitution. The Appointments Clause states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States”  see U.S. CONST. art. II, § 2, cl.2.

The Court of Appeals in overturning the District Court decision found that Relator’s are not officers of the United States and do not occupy a continuing position established by law. Accordingly, the Eleventh Circuit joined the other four circuits that have addressed the issue and held that the Qui Tam provisions of the FCA do not violate the Appointments Clause. The Court of Appeals vacated the District Court’s Order dismissing the case, but remanded it to the District Court to evaluate the defendant’s remaining constitutional arguments under the “Take Care Clause” and “Vesting Clause” of the Constitution.

The decision by the Court of Appeals appears to be based on a basic conclusion that if it looks like a duck, walks like a duck and acts like a duck then it is a duck and not an officer of the United States.  The Court of Appeals further discussed why Relator’s in a Qui Tam FCA case do not occupy a continuing position in the Federal government. The Court noted that Relator’s in a Qui Tam FCA case are private parties pursuing a private interest, and 1) do not exercise executive power; 2) do not exercise significant authority in the case, and 3) do not occupy a continuing position and are not compensated on a continuous basis, and 4) do not serve a permanent tenure with continuous public duties.  The District Court relied on a judicially created “office of relator” in its decision and application of the Appointments Clause, which the Eleventh Circuit found to be a non-existent office “and not in the FCA or any other law.” The Eleventh Circuit also found that Relator’s position did not extend over an extended period of time and never a permanent period of time, because it would only exist as long as a particular case was active. Furthermore, the Court of Appeals found that there was no regular appropriation for compensation to a Relator and that such compensation depended on a recovery in a contingent fee case. The Eleventh Circuit noted that Court’s should only invalidate an act of Congress “for the most compelling constitutional reasons”, citing Mistretta v. United States, 488 U.S. 361, 384 (1989) and summarily decided that Relator’s in a Qui Tam FCA case do not occupy a continuing position and therefore are not officers of the United States subject to the Appointments Clause.

Gabriel L. Imperato is the managing partner of the Fort Lauderdale office of Nelson Mullins and the Team Leader of the Firm’s Health Care Criminal and Civil Enforcement, Compliance and Litigation Practice. He has practiced health care law in both the public and private sectors for over forty years.  He is Board Certified as a specialist in health law by the Florida Bar and is also certified in Health Care Compliance (CHC) by the Health Care Compliance Association. Mr. Imperato served as the General Counsel of the North Broward Hospital District, the tenth largest health care system in the United States and also served as the Deputy Regional Counsel of the United States Department of Health of Health and Human Services. Mr. Imperato was also a longtime member of the Board of Directors of the Society of Corporate Compliance and Ethics and the Health Care Compliance Association (SCCE/HCCA).  He was a past president and interim CEO of this organization.