Earlier today, the Eleventh Circuit, in United States ex rel. Zafirov v. Florida Medical Associates, LLC, vacated a district court ruling that had dismissed a False Claims Act suit on the ground that a qui tam relator is an unappointed “Officer of the United States” under Article II’s Appointments Clause. The court held that a relator does not occupy a “continuing position established by law,” and so is not an officer at all: the role is occasional rather than permanent, carries no continuing salary or appropriation and is personal to the individual relator rather than a transferable office. The court vacated the dismissal and remanded.

Critically, the decision resolved only the defendants’ Appointments Clause challenge to the False Claims Act. The defendants also argued that the qui tam provisions violate the Vesting Clause, which commits “the executive Power” to the President alone, by allowing a private citizen to prosecute claims in the government’s name outside the executive branch’s chain of command; and the Take Care Clause, which requires that the President be able to supervise and remove anyone executing federal law, by giving the President no removal power over a relator. The district court did not reach either argument, having decided the case on the Appointments Clause alone, and the Eleventh Circuit remanded for the district court to address them in the first instance.

Both of these unresolved arguments trace to Justice Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., in which he wrote that civil litigation on behalf of the United States is an executive function that Article II does not permit Congress to assign to a private citizen, and thus “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” Justice Kavanaugh, in a concurrence joined by Justice Barrett, noted his agreement with Justice Thomas on this point. Notably, these “substantial arguments” raise constitutional concerns, not only under the Appointments Clause but also under the Vesting and Take Care Clauses, about a private actor exercising executive power with no presidential supervision or removal authority. And arguments under the latter two clauses do not require that the relator be deemed an “Officer of the United States” to succeed.

The defendants will have an opportunity to press, and the district court will have to address, the Vesting and Take Care Clause arguments on remand. In the meantime, the Third Circuit is also considering all three challenges to the False Claims Act in United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818 (3d Cir.), arising from a $1.64 billion judgment against Janssen for alleged off-label marketing.  

This publication is for general information only, does not create an attorney-client relationship and should not be relied upon as legal advice. © 2026 Gruenstein Law PLLC.

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