Eleventh Circuit Holds Qui Tam Relators Are Not "Officers of the United States." What Happens Next?
· Reason
[This post is co-authored with Professor Seth Barrett Tillman.]
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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 continuing position," and therefore, they are not "Officers of the United States," and thus, they do not need to be appointed by the President or the Attorney General. The Eleventh Circuit correctly cites the Supreme Court's recent decision in Lucia v. SEC, which stated that an "officer of the United States" position must be a "'continuing' position established by law." This test from Lucia stretches back to three nineteenth-century decisions. United States v. Hartwell (1868) stated that the term officer "embraces the ideas of [i] tenure, [ii] duration, [iii] emolument, and [iv] duties." United States v. Germaine (1879) further explained that the "duties" of an "Officer of the United States" must be "continuing and permanent, not occasional or temporary." The Court would apply the Germaine-Hartwell framework in Auffmordt v. Hedden (1890).
Lucia primarily focused on a single factor of the four-factor Germaine-Hartwell test: continuity. What has created some confusion is how to map Lucia's "continuity" test to the factors of the Germaine-Hartwell four-factor test. What must be "continuous"? Must the "tenure" be continuous? Or, must the "duration" of the position be continuous? Or, must the duties be "continuous"? Before Lucia, the courts never squarely addressed this issue. But after Lucia, this question may no longer matter. The requirement that matters now is continuity. But what does it mean for a position to be "continuous"?
The Eleventh Circuit adopted the framework from Auffmordt and an earlier circuit court decision from Chief Justice Marshall, United States v. Maurice. The Eleventh Circuit panel stated:
So in determining whether a person holds a continuing position established by law, the Supreme Court has evaluated whether that person holds a "permanent" tenure, whether his employment has "duration as to time," and whether he receives a "continuing emolument." Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890); Germaine, 99 U.S. at 511–12. And with respect to "duties," Chief Justice Marshall asked "if [the] duties continue, though the person be changed." United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.); see also Auffmordt, 137 U.S. at 327 (relying on Maurice in a continuing-position analysis).
The Eleventh Circuit links up the "continuous" requirement from Lucia with the "tenure" prong, the "duration" prong, the "emoluments" prong, and the "duties" prong. Again, Lucia collapsed the four-factor inquiry to a single requirement of "continuity," but the Eleventh Circuit went back to all four factors from Germaine-Hartwell. As we said, there is a lot of murkiness in this doctrine. Moreover, if you think the Germaine-Hartwell framework is confusing, read all of Maurice—not just the famous quotes—and try to make sense of it.
First, the panel addressed if a relator's tenure is "'permanent' as opposed to 'occasional or temporary.'" The court found that "a relator's tenure is occasional and temporary because it lasts the length of one case, a relator may bring multiple cases in a year or none, and relators are not required to keep a place of business." The panel added that if "the government or the court dismisses a relator's case or if the case settles, the relator has no remaining duties." Here, we think the panel incorrectly conflated "tenure" and "duties."
Second, the panel ruled that "duration" is not measured by how long the relator holds his position. Some "relators litigate actions for multiple years . . . but the Supreme Court has not focused on the overall length of a person's time fulfilling his duties when evaluating the duration of the position." The panel, citing Germaine, explained that the Supreme Court "evaluated duration the same way it assessed 'tenure'—by asking whether the surgeon's duties were 'permanent' or 'occasional and intermittent.'" Here too, we think the panel incorrectly conflated "tenure," "duration," and "duties." One might ask if "duration" and "tenure" were meant to be assessed the same way, why the Hartwell-Germaine four-factor test listed them as separate factors.
Third, the panel ruled that a "judgment in a successful FCA case" would result in a "one-time" award that would not be a "continuing" emolument. We think the court was in error to impose a continuity requirement on emoluments. Indeed, in Hartwell-Germaine referred to emoluments, plural, and not singular. Our view is that the continuity of a position does not depend on whether a person is paid one time up front, at regular intervals multiple times, or one time at the conclusion of his service. Hartwell-Germaine only requires that an officer receive emoluments. The Eleventh Circuit was trying to connect continuity to all four factors. But the Supreme Court in Lucia, which focused primarily on continuity, seemed to announce a new test with roots in Hartwell-Germaine, but different from Hartwell-Germaine. We think the Eleventh Circuit erred in connecting the emoluments factor from Hartwell-Germaine to whether a position is continuous.
Fourth, citing Maurice, the panel found that "A relator occupies a personal role, not one where his 'duties continue, though the person be changed.'" What happens if the relator dies or goes into bankruptcy? Here, there was a disagreement of fact between the parties. The court ruled that in the case of death or bankruptcy, "another relator does not replace the deceased or bankrupt; instead, a personal representative or trustee of the relator's estate can carry forward the case on his behalf." The defendants further argued, quoting from the district court, that "the office of relator is 'continuous even if it is not continually filled,' and it is generally held at any given time by numerous private parties conducting litigation on behalf of the United States." The panel also rejected this argument: "the defendants' argument improperly analyzes whether the office is a continuing one, when the proper inquiry is whether an individual occupies a continuing position." We are not entirely sure what the court meant by distinguishing a "continuing position" and a "continuing [office]." The office is the position. We do not see the difference the court is suggesting.
We have no expertise on the mechanics of the FCA. But we can draw an analogy to the Independent Counsel Statute at issue in Morrison v. Olson. We explained in our amicus brief:
First, with the Independent Counsel Statute, Congress "established by law" a permanent umbrella office structure that could embrace multiple independent counsels. Indeed, throughout the 1980s and 1990s, there were many overlapping independent counsel investigations at any one point in time-all under the auspices of the same statutory framework.
In our view, if there is such an umbrella office structure, the position would be continuous. But again, we offer no special insights into how the FCA operates.
The panel concluded: "In sum, we find that, while the length of any given FCA case is uncertain and variable, relators have temporary tenure and duration, no continuing emolument, and personal duties, so they do not occupy a continuing position." But that ruling did not end the case. The panel remanded the case to "evaluate the defendants' Take Care Clause and Vesting Clause arguments."
The Eleventh Circuit held that the relators were not "Officer of the United States." But if the relators are not "Officers of the United States," what are they? A footnote in the opinion states, "We assume without deciding that Lucia's framework governs relators, who are not government employees." It is not clear that this conclusion flows from Buckley and its progeny. Our reading of Buckley is that when an official exercises power granted under a federal statute, if they are not an elected official, and are not an "Officer of the United States," then they are an employee. We readily admit that this triumvirate of federal officialdom poses some problem with historical practice. But we think that issue is something the Eleventh Circuit should have attempted to resolve on this occasion. In other words, if relators are not "officers of the United States," we think they must be "employees." And if relators are "employees," then, under Buckley, they cannot exercise "significant authority." Whether relators are exercising "significant authority" is the crux of the issue on remand.
As we read Buckley v. Valeo and its progeny, only "officers of the United States" can exercise "significant authority." (We admit this point is not entirely clear from the Court's analysis.) Under this precedent, if relators are not "officers of the United States," then they cannot exercise "significant authority." Buckley, however, did not explain why employees cannot exercise "significant authority." One possible textual hook for this position is the Take Care Clause. The President has a duty to supervise that his subordinates are faithfully executing the law. Decisions like Trump v. Slaughter and Seila Law v. CFPB held that the President's greatest authority to supervise subordinate officers is through the removal power. But it isn't clear that the President can fire employees that he did not appoint. Indeed, there is active litigation about whether the President can remove civil servants. One might ask: If employees are vested with significant policy-making authority, and if they are insulated against oversight, then what happens to democratic accountability and the President's duty to see that subordinates faithfully execute the law?
For argument's sake, we will assume that the President can remove a relator at will who is exercising "significant authority." Would that removal authority eliminate problems under the Take Care Clause? We are not so sure. Indeed, the relator has the authority to bring the suit in the first instance on behalf of the United States. That action can subsequently be dismissed within the 60-day "seal period." Or the United States can take over the case. But action is taken, even if briefly, by someone without the President's knowledge. Imagine that Congress authorized private citizens to convene grand juries and bring criminal indictments that could later be dismissed by the United States Attorney or the Attorney General. Private criminal prosecutions? Would this regime violate the President's ability to supervise that the laws are being faithfully executed? Or is there perhaps a sufficient difference between a civil false claims action and a criminal indictment?
Beyond the Take Care Clause, we think the Executive Vesting Clause may pose another potential problem for the relator's case. Can Congress vest the authority to bring this suit in a private citizen in the first instance? In other words, if this sort of suit is a "significant" exercise of executive power, can it be delegated to a private-party relator?
So far, all of these arguments are based on precedent. These precedents, we think, have to confront longstanding practice. The qui tam provision has been on the books since the First Congress . Justice Thomas addressed this point in Polansky:
The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes.
We suspect this case is far from over, and we will follow it with some interest.
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