The False Claims Act (FCA) creates civil liability for a variety of deceptive practices involving government funds and property. The Act contains a qui tam provision, which authorizes private persons, called “relators,” to bring suit to redress frauds against the United States. At the same time, the Act contains various provisions authorizing the United States to exercise significant control over FCA cases brought by relators, whether or not the government chooses to intervene in the litigation. 

Dr. Clarissa Zafirov filed suit pursuant to the FCA as a relator, alleging that her employer and other defendants engaged in Medicare fraud by misrepresenting the conditions of their patients to the federal government. The United States declined to intervene, and the litigation proceeded over several years. In early 2024, the defendants moved for judgment on the pleadings on the theory that the FCA’s qui tam provision violates various provisions of Article II of the Constitution.  

The United States District Court for the Middle District of Florida dismissed Zafirov’s suit on the sole ground that it violated Article II’s Appointments Clause. According to the district court, Zafirov, as an FCA relator, was an “Officer of the United States” who had not been appointed in accordance with the procedures of the Appointments Clause. Zafirov and the United States appealed. 

CAC filed an amicus brief in the Eleventh Circuit in support of the appellants, explaining that the qui tam provision of the FCA is constitutional under the Appointments Clause because the Clause does not apply to private litigants who hold no government position. 

The Framers who drafted the Appointments Clause were exclusively focused on prescribing the appointment process for people in public offices—high-ranking members of the government’s workforce. Drawing on their experiences under the King of England, who had enjoyed unilateral appointment authority, the Framers sought to ensure that the legislative branch played a role in the appointment of the most powerful officials. At the same time, the Framers were aware that the process of appointments in early American state legislatures led to corruption. Ultimately, in a compromise agreement, the Framers required that principal officers be nominated by the President with the advice and consent of the Senate, while inferior officers could be appointed by the President alone, the courts, or the heads of departments. The debates focused on safeguarding separation-of-powers principles—most critically, avoiding congressional aggrandizement at the expense of the executive branch, or vice versa.  

Qui tam relators do not implicate the concerns at the core of the Appointments Clause because they do not hold public office. At no point did the Founding-era debates on the Appointments Clause touch on restrictions for private actors, even those who might be vested with important responsibilities to work with the federal government to pursue its interests. Instead, the Framers’ debates largely fixated on the appointment process for judges—individuals who occupy established government positions with a fixed tenure and salaries paid by the public fisc. Contemporaneous writings often used the phrase “officers of the government” interchangeably with “Officers of the United States,” indicating that an officer was, at a minimum, a person appointed by and employed by the federal government. In sum, the Appointments Clause was not designed as a constitutional mechanism for placing a check on private individuals who draw no federal salary, hold no established position, have no formal duties, and serve no specified term.  

In concluding otherwise, the district court erroneously allowed its conclusion that qui tam relators exercise “significant federal authority” to subsume its analysis without first asking whether relators are appointed to a government position in the first place. This error was driven by the court’s misinterpretation of a number of key Supreme Court precedents, most significantly Buckley v. Valeo. Buckley never suggested that significant authority to vindicate the United States’ interests on its own creates an appointment or renders a private citizen an “Officer” within the meaning of the Appointments Clause. Rather, under Buckley and its progeny, and consistent with the text and history of the Appointments Clause, where there is no government office, there can be no appointment and no Appointments Clause violation.