When U.S. District Judge Aileen Cannon dismissed Donald Trump’s classified documents case in July, she cited Supreme Court Justice Clarence Thomas’ separate opinion in the Trump immunity case that questioned whether special counsel Jack Smith had been lawfully appointed.
Now, another Trump-appointed judge in Florida, a former Thomas clerk, cited another solo opinion from the justice to break new ground in another area of the law. U.S. District Judge Kathryn Mizelle on Monday deemed unlawful so-called qui tam enforcement of the False Claims Act, an 1863 law passed in response to defense contractor fraud during the Civil War. The qui tam provision lets private parties bring suits on behalf of the government.
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Dismissing one such case in which a doctor brought allegations of Medicare fraud on behalf of the government, Mizelle, citing Thomas in her ruling, said the person who brought the case “exercises significant authority, indeed core executive power,” while lacking “proper appointment under the Constitution.”
Mizelle was confirmed at age 33 in a divided Senate vote in the waning days of Trump’s presidency in 2020 after receiving a “not qualified” rating from the American Bar Association because of a lack of experience.
Underscoring the practical impact of her ruling, the judge noted that qui tam actions “now generate increased revenue for the federal government,” citing settlements and judgments from fiscal year 2023 that totaled over $2.3 billion, compared with about $2.3 million in 1988. The U.S. Chamber of Commerce had urged the result that Mizelle reached. Notably, last year when Thomas struck out on his own in a case to question qui tam enforcement, Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, wrote in an opinion that he agreed with Thomas and that the court should consider the qui tam issue “in an appropriate case.” Mizelle’s ruling could bring the issue before the high court, where it takes four justices to grant review. The Deadline: Legal Newsletter returns Friday. Subscribe for expert analysis on the top legal stories of the week, including updates from the new Supreme Court term and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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