Judge Kathryn Kimball Mizelle in the Middle District of Florida has once again ruled that the qui tam relator provisions of the False Claims Act (FCA) violated the Appointments Clause of the U.S. Constitution. In a May 29, 2025 order in United States ex rel. Gose v. Native American Services Corp., Judge Mizelle followed the same logic that led to her ruling last fall in United States ex rel. Zafirov v. Florida Medical Associates, LLC.   

In Zafirov, Judge Mizelle ruled that the FCA’s provisions that permit a private citizen to bring a claim in the absence of intervention by the federal government are unconstitutional because they established a mechanism whereby “unaccountable, unsworn, private actors” are permitted “to exercise core executive power with substantial consequences to members of the public.”  In reaching this conclusion, Judge Mizelle, who clerked for Justice Thomas, followed reasoning in a dissent by Justice Thomas in the decision United States ex rel. Polansky v. Executive Health Resources, Inc. (599 U.S. 419).

Zafirov has been appealed to the U.S. Court of Appeals for the Eleventh Circuit. The parties have completed briefing in the case, but the court has not yet scheduled oral argument. In the absence of an appellate ruling to the contrary, Judge Mizelle continues to apply her analysis to FCA cases before her.

Relators as a continuing office

In this case, there is a different angle that lends further support to dismissal.  In Zafirov, one of the issues raised was that a qui tam relator does not serve in a “continuing” capacity, since the relator’s authority only survives the duration of the claim. In Gose, one of the relators, Dennie Gose, died while the case was proceeding. Dennie’s son, Sean Gose, stepped into the relator role as the personal representative of Dennie’s estate. Judge Mizelle identified this fact as further evidence that the relator position could be a continuous position since the role of relator even survived death.

As at least three Supreme Court justices have invited a challenge to the qui tam provisions, as we previously briefed, more litigants – and judges – may accept the invitation to scrutinize a vehicle available since the Civil War to challenge purported fraud on the government, even though the FCA is widely supported across political lines.

Reed Smith will continue to follow developments as to qui tam actions, including the appeal of Zafirov pending before the Eleventh Circuit. If you have any questions about these court decisions or aspects of the False Claims Act, please do not hesitate to contact the authors or the Reed Smith attorneys with whom you work.