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Eleventh Circuit Holds Qui Tam Relators Are Not "Officers of the United States." What Happens Next?

Josh Blackman | 9.4.2026 2:06 PM

[This post is co-authored with Professor Seth Barrett Tillman.]

Over the past decade, many legal challenges have turned on whether a particular position is an "officer of the United States" or an "office . . . under the United States." In the Foreign Emoluments Clause litigation, the plaintiffs argued that the President holds an "office . . . under the United States." In the Special Counsel's prosecution of Donald Trump, the former President argued that Jack Smith's position is properly characterized as a principal "officer of the United States" who must be appointed by the President pursuant to the Appointments Clause, rather than by the Attorney General. During the Amendment XIV, Section 3 litigation, state voters argued that Donald Trump was disqualified from serving as President because he took an oath of office as an "Officer of the United States" and the presidency was an "Office under the United States." All of these cases were high-profile and related to important political controversies. But there is another case pending in the courts that turns on the meaning of "Officer of the United States" that is far less in the news, but nevertheless has the potential to significantly reshape U.S. constitutional law. 

The qui tam provision of the False Claims Act ("FCA") authorizes relators to pursue a case against those accused of defrauding the federal government. In short, the relators can bring a suit in the name of the United States against private parties. The relators are not appointed by the President or the Attorney General (the head of the department). Any private citizen can bring suit as a realtor. For decades, any number of conservative legal scholars and practitioners have argued that the qui tam provision violates the separation of powers. In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, put forward that position in a memorandum opinion for the Attorney General. But in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views. More recently, in United States ex rel. Polansky v. Executive Health Resources, Inc., Justice Thomas wrote that "FCA's qui tam provisions have long inhabited something of a constitutional twilight zone." In 2024, in USA ex rel. Zafirov v. Florida Medical Associates, LLC, a federal district court in the Middle District of Florida declared the qui tam provision to be unconstitutional. Judge Mizelle found that relators are properly characterized as "officers of the United States," and therefore, they had to be appointed pursuant to the provisions of the Appointments Clause. Given that the relator in this case was only a private citizen, and was not appointed per the Appointments Clause, the lawsuit was dismissed. 

The Eleventh Circuit has now reversed the trial court. The unanimous panel held that relators are not "officers of the United States." The court remanded the case to the district court with directions to consider the defendants' remaining arguments in support of defendants' motion to dismiss based on the Take Care Clause and the Article II Vesting Clause. 

In this blog post, we will walk through the circuit court's analysis that relators are not "officers of the United States," and we speculate on the next steps for this case. A starting point for interested readers is the amicus brief we filed before the Eleventh Circuit in the challenge to Special Counsel Jack Smith's appointment. We tried to bring some clarity to what is an otherwise complicated area of law: Where is the line between an "Officer of the United States" and a mere employee?

The crux of the Eleventh Circuit's decision is that relators "do not hold a........

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