No “Office of Relator”: FCA Qui Tam Relators Are Not Article II Officers Because They Do Not Hold a Continuing Position

1. Introduction

Case: Clarissa Zafirov v. Florida Medical Associates, LLC (with the United States intervening for the limited purpose of defending the statute’s constitutionality).
Court: U.S. Court of Appeals for the Eleventh Circuit.
Context: A qui tam relator, Dr. Clarissa Zafirov, sued her employer and related entities under the False Claims Act (“FCA”), alleging Medicare fraud through false diagnosis coding to increase reimbursements.

The defendants sought dismissal on the ground that the FCA’s qui tam provisions are unconstitutional under Article II—arguing violations of the Appointments Clause, the Take Care Clause, and the Vesting Clause. The district court accepted the Appointments Clause theory, holding relators are “officers of the United States” who must be appointed by the President, and dismissed the case on that basis. The Eleventh Circuit reversed on the Appointments Clause question and remanded for the district court to address the remaining Article II arguments.

2. Summary of the Opinion

The Eleventh Circuit held that FCA qui tam relators are not “Officers of the United States” for Appointments Clause purposes because they do not occupy a continuing position established by law. The court emphasized that a relator’s role is case-bound, intermittent, lacks any continuing emolument, and involves personal duties that do not continue if the relator exits (except when the government intervenes).

The court therefore vacated the dismissal and remanded for consideration of the defendants’ Take Care Clause and Vesting Clause challenges in the first instance.

3. Analysis

3.1. Precedents Cited

The decision is principally an Appointments Clause “officer” analysis anchored in Supreme Court descriptions of what counts as a “continuing” position.

  • Lucia v. SEC, 585 U.S. 237 (2018)
    Role in the opinion: Provided the two-part formulation often used to identify an “officer”: (i) the individual occupies a “continuing” position established by law, and (ii) exercises “significant authority pursuant to the laws of the United States” (quoting earlier cases). The Eleventh Circuit assumed without deciding that Lucia supplies the correct framework for relators even though they are not government employees—then resolved the appeal solely on the “continuing position” prong.
  • United States v. Germaine, 99 U.S. 508 (1879)
    Role in the opinion: The court treated Germaine as a foundational guide to “continuing position,” emphasizing the Supreme Court’s focus on intermittent, contingent, task-triggered duties (a surgeon examining pension claimants), lack of permanence/tenure, and compensation contingent on discrete work. The Eleventh Circuit analogized relators to the Germaine surgeon: a relator may file “multiple cases in a year or none,” has no permanent tenure, and has no continuing duties once the case ends.
  • Auffmordt v. Hedden, 137 U.S. 310 (1890)
    Role in the opinion: Reinforced that an occasional, emergency-triggered role selected for a particular case (merchant appraiser) is not a continuing office. The Eleventh Circuit found relators comparable to the Auffmordt appraiser: selected for a particular matter based on special knowledge, with no “general functions.” The opinion also uses Auffmordt to highlight the relevance of “continuing emolument.”
  • United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.)
    Role in the opinion: Supplied a classic test for whether duties are “continuing”: ask “if [the] duties continue, though the person be changed.” The Eleventh Circuit used this to distinguish truly continuing offices (where successors pick up the same duties) from the relator role, which is personal to the filing party.
  • Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)
    Role in the opinion: Cited through Lucia as the source of the “significant authority” language, but ultimately not reached because the court decided on the “continuing position” prong alone.
  • Morrison v. Olson, 487 U.S. 654 (1988)
    Role in the opinion: Defendants invoked Morrison to argue that a role can be “temporary” yet still an “office.” The Eleventh Circuit distinguished: independent counsel were replaceable midstream (their duties continued even if the person changed), and they were “on the public payroll” backed by a “permanent indefinite appropriation.” By contrast, a relator has no statutory mechanism for replacement upon abandonment and has only contingent, one-time compensation from case proceeds.
  • United States v. Donziger, 38 F.4th 290 (2d Cir. 2022)
    Role in the opinion: The district court relied on the Second Circuit’s distillation of “continuing position.” The Eleventh Circuit expressly declined to adopt that test, choosing to rely “directly on the guidance the Supreme Court has provided.”
  • Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U.S. 650 (2015)
    Role in the opinion: Defendants cited Carter to suggest another relator may “step into the role” if a complaint is dismissed. The Eleventh Circuit rejected the reading: Carter concerned whether an action dismissed on procedural grounds remains “pending” for purposes of an FCA bar, not substitution into an existing qui tam action. It did not create a successor-relator concept.
  • United States v. NEC Corp., 11 F.3d 136 (11th Cir. 1993) and United States ex rel. Spicer v. Westbrook, 751 F.3d 354 (5th Cir. 2014)
    Role in the opinion: Used to rebut the “replacement relator” theory. If a relator dies or goes bankrupt, it is not a new relator taking over; rather, a personal representative or trustee continues on the relator’s behalf.
  • United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023)
    Role in the opinion: Provided background on the seal period, intervention, and the government’s authority to dismiss after intervening, with “substantial deference” under Rule 41 principles. This informed the statutory context but did not control the officer analysis.
  • Riley v. St. Luke's Episcopal Hosp., United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., United States ex rel. Kelly v. Boeing Co., and United States ex rel. Stone v. Rockwell Int'l Corp.
    Role in the opinion: Cited as sister-circuit decisions rejecting Appointments Clause attacks on FCA relators. The Eleventh Circuit aligned itself with those circuits.
  • United States v. Wright, 607 F.3d 708 (11th Cir. 2010); Mistretta v. United States, 488 U.S. 361 (1989); Bowsher v. Synar, 478 U.S. 714 (1986)
    Role in the opinion: These framed the standard of review and the caution courts should exercise before invalidating an Act of Congress.
  • Commodores Ent. Corp. v. McClary, 879 F.3d 1114 (11th Cir. 2018) and Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014)
    Role in the opinion: Invoked for Eleventh Circuit methodological points: not being bound by other circuits, and declining to treat passing references as properly raised arguments.
  • Stanton v. Wilkeson, 22 F. Cas. 1074 (S.D.N.Y. 1876)
    Role in the opinion: Appeared in a footnote contrasting receiverships (where successors take over ongoing duties) with the relator’s personal, non-successor role.

3.2. Legal Reasoning

The Eleventh Circuit’s holding turns on a narrow but decisive proposition: even if one assumes (without deciding) that the Lucia v. SEC “officer” test governs relators, relators fail the first prong because they do not occupy a “continuing” position.

A. The “continuing position” inquiry (tenure, duration, emolument, duties)

  1. Tenure is “occasional or temporary” (drawing from United States v. Germaine and Auffmordt v. Hedden).
    Relators act only when they bring a case; they may bring many, one, or none, and once the case ends—by dismissal, settlement, or otherwise—their role ends. This resembles the intermittent, task-triggered service found insufficient for officer status in Germaine and Auffmordt.
  2. Duration is not measured by how long litigation can take.
    Defendants emphasized that some FCA cases last years. The court responded that Supreme Court decisions focus on whether duties are permanent versus intermittent, not on the calendar length a discrete assignment may consume. A multi-year lawsuit remains a single, bounded assignment.
  3. No “continuing emolument” (from Auffmordt v. Hedden and United States v. Germaine).
    A relator’s potential award is contingent and one-time, paid from proceeds rather than through a regular appropriation, and the relator faces no penalty for nonperformance beyond loss of that contingent opportunity—paralleling Germaine’s reasoning about fee-for-service compensation.
  4. Duties are personal and do not “continue, though the person be changed” (from United States v. Maurice).
    The FCA does not provide a mechanism for swapping in a new relator if the original relator abandons the case. The defendants’ “replacement” examples (death or bankruptcy) were characterized as estate/trustee continuation, not substitution by a new relator—supported by United States v. NEC Corp. and United States ex rel. Spicer v. Westbrook.

B. Rejection of the “office of relator” theory

The defendants, echoing the district court, argued that the FCA created a continuous “office of relator” that exists even when unfilled. The Eleventh Circuit rejected that approach on two levels: (1) the FCA does not contain the term “office of relator”; and (2) Supreme Court methodology evaluates whether the individual occupies a continuing position by examining the nature of the duties and compensation when the role is filled (as in Auffmordt v. Hedden and United States v. Germaine), not by positing an abstract, unfilled office.

C. Distinguishing temporary but still “office” roles (Morrison)

The court accepted Morrison v. Olson as showing that “temporary” does not automatically mean “non-officer,” but found the independent counsel model materially different: independent counsel were replaceable (duties continued if the person changed) and publicly funded. Those features were central to showing a continuing governmental position—features absent here.

D. Limiting the holding and remanding the rest

Because relators fail the “continuing position” prong, the court did not decide whether relators exercise “significant authority,” nor whether they are private parties pursuing private interests, nor whether the FCA sufficiently preserves presidential control for Take Care/Vesting purposes. Those arguments were remanded.

3.3. Impact

  • Alignment with other circuits: The Eleventh Circuit joined those that have rejected Appointments Clause attacks on FCA relators (e.g., Riley v. St. Luke's Episcopal Hosp.; United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co.; United States ex rel. Kelly v. Boeing Co.; United States ex rel. Stone v. Rockwell Int'l Corp.). This reduces the likelihood of successful Appointments Clause-based dismissal of qui tam actions within the Eleventh Circuit.
  • Doctrinal clarification: The opinion emphasizes that “officer” status requires more than power; it requires a structurally continuing role—marked by permanence or replaceability, continuing emoluments, and duties that persist beyond the individual occupant. This analysis may shape officer-status disputes in adjacent contexts involving privately initiated enforcement-like proceedings.
  • Litigation strategy shift: Defendants challenging qui tam suits may pivot from Appointments Clause theories to the remanded Article II questions (Take Care/Vesting) or to statutory defenses, since “relator-as-officer” arguments face an additional circuit-level barrier.
  • Open constitutional questions remain: The remand keeps alive arguments about presidential supervision and the allocation of executive enforcement power, meaning the broader Article II debate over qui tam may continue even if Appointments Clause challenges weaken.

4. Complex Concepts Simplified

False Claims Act (FCA)
A federal statute imposing civil liability (including penalties and treble damages) for submitting or causing false claims for government payment (here, Medicare).
Qui tam / Relator
A mechanism allowing a private person (the relator) to sue “for the person and for the United States Government” in the government’s name and share in any recovery.
Seal period
An initial period (at least 60 days) when the complaint is filed under seal while the government decides whether to intervene.
Intervention and dismissal authority (Rule 41 context)
After intervening, the government may seek to dismiss over a relator’s objection; courts give the government “substantial deference” per United States ex rel. Polansky v. Exec. Health Res., Inc..
Appointments Clause / “Officer of the United States”
Article II requires principal “officers” to be appointed by the President with Senate confirmation (with limited exceptions for inferior officers). Under Lucia v. SEC, an “officer” must (among other things) hold a “continuing” position established by law.
Continuing position
A role characterized by continuing tenure/duration, continuing emoluments, and duties that persist beyond the individual—often evidenced by replaceability and ongoing functions.
Emolument
As quoted from Black’s Law Dictionary: “Any advantage, profit, or gain received as a result of one's employment or one's holding of office.” The court stressed a relator has no continuing emolument.
Vacated and remanded
The appellate court nullified the district court’s dismissal and sent the case back for further proceedings on unresolved issues.

5. Conclusion

The Eleventh Circuit’s central contribution is a clear rule for Appointments Clause challenges to FCA qui tam litigation: FCA relators are not Article II officers because they do not occupy a continuing position established by law. In reaching that conclusion, the court relied on Supreme Court guidance emphasizing intermittency, lack of continuing emoluments, and the personal (non-successor) nature of duties—drawing heavily from United States v. Germaine, Auffmordt v. Hedden, and United States v. Maurice, and distinguishing Morrison v. Olson.

The decision preserves qui tam suits from Appointments Clause invalidation in the Eleventh Circuit while leaving open whether qui tam’s structure satisfies other Article II requirements. On remand, the litigation’s constitutional center of gravity shifts to the Take Care Clause and Vesting Clause questions the district court did not reach.