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.Continue Reading Florida judge once again rules against constitutionality of False Claims Act relators