Medicare . The government declined to intervene in the suit and , therefore , Zafirov proceeded under the qui tam provisions of the FCA .
In 2021 , more than five years into the litigation , the defendants moved for a judgment on the pleadings under Federal Rule of Civil Procedure 12 ( c ). The defendants argued that the FCA ' s qui tam provisions violated the take care and vesting clauses of Article II , due to the lack of removal authority and supervisory control over a relator , as well as the appointments clause of Article II , arguing that a relator is an improperly appointed officer of the U . S .
The court ruled for the defendants on the appointments clause question and therefore declined to address the arguments arising under the take care and vesting clauses .
In Zafirov , the court concluded that an FCA relator is an officer of the U . S . and must therefore be constitutionally appointed under the appointments clause .[ 6 ] Since Zafirov was not constitutionally appointed , the lawsuit was dismissed .
The court reasoned that relators under the FCA exercise the significant authority required to be considered officers of the U . S . and occupy a continuing position established by law .
The court held that because an FCA relator " conduct [ s ] civil litigation in the courts of the United States for vindicating public rights ," the relator wields significant authority as litigation is a " core executive power ."[ 7 ]
The court also held that an FCA relator meets the requirements to be an officer of the U . S . by holding a continuing position established by federal law . It does not matter that a relator does not continually fill their office , as relators still have statutorily defined duties , powers and emoluments .[ 8 ]
The court reasoned that FCA relators essentially " self-appoint as special prosecutors " whose scope of prosecutorial jurisdiction is " limited only by the complaint " that the relator creates and the FCA ' s openended jurisdictional provisions .[ 9 ]
Additionally , the court reasoned that a relator ' s position is not transient or fleeting because the position continues throughout the lawsuit , and the " power to vindicate public rights through litigation " is more than incidental to the operations of government .[ 10 ]
Constitutional Grounds
Since an FCA relator meets both requirements to be considered an officer of the U . S ., a relator must be constitutionally appointed under Article II . There is no Article II exception for qui tam provisions , so because " the Constitution prevails over practice ," the history of qui tam provisions cannot overcome clear constitutional language and well-settled Article II jurisprudence .[ 11 ]
While Judge Mizelle ' s decision is at odds with decisions by the U . S . Courts of Appeals for the Fifth , Sixth , Ninth and Tenth Circuits , it builds on recent decisions by the U . S . Supreme Court .
For example , since just 2018 , the Supreme Court has held that U . S . Securities and Exchange Commission administrative law judges , administrative patent judges and the directors of the Consumer Financial Protection Bureau and the Federal Housing Finance Authority are all executive officers due to their ability to enforce federal law .[ 12 ]