Kathryn Mizelle was barely removed from her clerkship when Donald Trump tapped her for the federal bench in the waning days of his administration. The Trump White House had already plucked the low-hanging fruit from the ranks of the Federalist Society. By the end of the administration, the remaining smart conservative lawyers were happily building multimillion-dollar books of business trying to build a case that it’s unconstitutional for women to vote in Pennsylvania (which they will probably bring in the Northern District of Texas).
Besides, Mizelle was 33 years old and could extend the deadhand influence of a one-term popular vote loser for 50 years! So Mizelle landed a district court nomination while still serving as a Biglaw associate. The ABA pointed out that she was wholly unqualified for the job, but as this was a feature rather than a bug for Trump nominees down the stretch, the Republican Senate approved her anyway.
But when we say Mizelle is one of the least capable judges in America, it’s imperative that we come with receipts. It’s not enough to cite the circumstances of her nomination or the expert opinion of the ABA, we need to carefully consider the quality of her work.
Yesterday, she declared the False Claims Act qui tam provision unconstitutional. The law has been on the books since ABRAHAM LINCOLN signed it into law and existed as a concept dating back to the Middle Ages as described in the English common law treatises that conservative judges usually love to cite. It enjoys a long history in the Anglo-American legal canon as a necessary tool allowing private citizens to recover damages owed to the United States government that might otherwise go unclaimed. For this, she ginned up an Article II theory not unlike the one Judge Mizelle’s counterpart Aileen Cannon recently used to conclude that Special Counsel Jack Smith violated the Constitution by existing based on a Clarence Thomas opinion (writing for himself alone!) where he complained that no one else on the Supreme Court agreed with him. Essentially, claiming that the Constitution forbids anyone from acting for the benefit of the United States unless they’re appointed by the president.
Given the mandate of the conservative Supreme Court majority in Dobbs that laws only count if they’re “deeply rooted in this Nation’s history and tradition,” one might not expect a right-wing judge to throw out a law with nearly 200 years of unquestioned validity. But that presumes that “history and tradition” amount to anything more than an empty marketing slogan that these folks drag out whenever they want to say that the Framers may have had robust gun control laws but they never SPECIFICALLY said you couldn’t bring an assault rifle on an electric train.
Today’s frequent use of the FCA’s qui tam provision emerged relatively recently. Although the FCA as enacted in 1863 permitted relator suits, it took a package of prorelator amendments in 1986 to elevate the device from obscurity. At least one study found that the DOJ’s records reveal only three qui tam actions in the four decades between 1943 and 1986, see WILLIAM L. STRINGER, THE FALSE CLAIMS ACT AMENDMENTS: AN ASSESSMENT OF ECONOMIC IMPACT 23 (1996) (admitting that the records are incomplete but concluding that qui tam actions were “undoubtedly very few”), while others estimate that the “DOJ used to receive about six qui tam cases a year” before the 1986 amendments, Steve France, The Private War on Pentagon Fraud, 76 A.B.A. J. 46, 48 (1990). Whatever the precise figure, the relator amendments triggered an explosion of qui tam lawsuits. See 2023 FCA Stats at 1–2 (showing 31 new FCA qui tam matters in fiscal year 1987 rising to 712 new qui tam matters in 2023).
Credit where it’s due, Mizelle didn’t have to include the parenthetical admitting that her primary source admitted he was basically making it up based on incomplete records. On the other hand, it’s the sort of addition that should’ve kept the cite out of the opinion entirely. But this again gives us occasion to remember the risks posed by the cottage industry of building a body of “History-ish” publications for judges to cite whenever the actual record can’t back it up. It’s an accelerating problem with student journals publishing historical claims that could not pass scholarly peer review, but provide Federalist Society judges historical sounding factoids to insert into string cites. Indeed, one of the authors at the heart of the recent controversy over flimsy academic claims is right there in this opinion!
And while it’s plausible that the number of claims about Pentagon fraud expanded during the 80s, this has more to do with the unprecedented military buildup over those years that sparked non-stop coverage of defense contractor overcharges and “$1000 toilet seats,” than the idea that qui tam had been quietly unconstitutional all that time. But Mizelle wasn’t born by 1986, so she might not remember the fiscal environment when we openly talked about building magic satellites to shoot down Soviet nukes.
As for the long English tradition of these laws, Mizelle declares their application in the United States to be not “a course of deliberate practice.” For those playing along at home, a “course of deliberate practice” means “at least pre-dating Abraham Lincoln.”
And so history and tradition are kicked to the curb.
And although the Supreme Court and the Eleventh Circuit have reserved the Article II issue, my conclusion that an FCA relator is an officer of the United States is neither novel nor surprising.
Before we get to her support (such as it is) for this claim, take a second to absorb this sentence. She says “although” the Supreme Court and her circuit have explicitly not declared the over 160-year-old law unconstitutional, she is going to decide “what if it is?”
A more conscientious and good faith DISTRICT JUDGE would apply the law as it presently exists, leaving it to higher courts to decide if they want to stop reserving this cockamamie Article II theory. An envelope-pushing trial judge could apply existing law and bloviate for 53 pages about how much they disagree with it, hoping to catch a stray nod from a future controlling opinion. It’s not particularly professional, but at least it preserves the role of a district judge. Mizelle will eschew these options.
Anyway, let’s see how she justifies the above claim:
See Polansky, 599 U.S. at 442 (Kavanaugh, J., concurring, joined by Barrett, J.) (urging the Court to consider in an appropriate case the “substantial arguments” that qui tam is inconsistent with Article II); id. at 449 (Thomas, J., dissenting) (same); Taxpayers Against Fraud, 41 F.3d at 1050 (Nelson, J., concurring in part and in the judgment) (declining to concur in “Part II of the court’s opinion, where the constitutionality of the qui tam provisions of the False Claims Act is upheld”); Riley, 252 F.3d at 758–75 (Smith, J., dissenting) (identifying “the FCA’s violation of the Appointments Clause”); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. at 221 (William Barr, Ass’t Att’y Gen.) (arguing that “qui tam suits brought by private parties to enforce the claims of the United States plainly violate the Appointments Clause of the Constitution”).
One thing you might notice here is the lack of even A SINGLE CITE TO RELEVANT AUTHORITY. Zilch. Nada. Concurrences, dissents, a fart-sniffing internal Bill Barr statement. No majority Supreme Court, Eleventh Circuit, sibling circuit opinion. Not even a stray district court opinion from some far-flung district. She couldn’t even get ChatGPT to make up some fake cites for good measure. There’s just nothing here!
Rendering it all the more tragio-comic when Mizelle addresses the on point authority cited by the plaintiff by noting — literally — “[plaintiff] resists this conclusion primarily by citing non-binding decisions that held otherwise.” At least the plaintiff found SOME circuits to opine on the question presented instead of playing Mad Libs with a bunch of dissents.
Earlier in the opinion, Mizelle attempts to “square peg round hole” other federal officers cases into her analysis, suggesting that because some entities who can sue on behalf of the United States are officers, then anyone who files a suit where the recovery would benefit the United States must be an officer too. That the DOJ can walk in and shut down a qui tam action on behalf of the United States would seem significant on this count, but it’s just handwaved away without caselaw citation except for a “see also” that suggested it was “close” before concluding the other way anyway.
As legal analysis goes, this is all reminiscent of when she struck down CDC mask mandates on the grounds that “sanitation” can’t include “sanitary masks” because she found a 1940s dictionary that used the word sanitation when talking about trash collection. I’m sure her all-expense luxury trip to hang out with conservative dictionary dorks before that opinion didn’t impact that one at all! But, hey, “all-expense” suggests maybe she did learn a thing or two from her time working for Clarence Thomas!
This is all significant for reasons that transcend the substantive policy involved.
It is obviously stupid to practically hamstring the federal government from recovering when it suffers actual fraud. The government is incapable of prosecuting every valid claim, making this decision an open invitation to defraud the government to any bad actor capable of keeping it below the DOJ’s threshold to stop going after drug lords to chase down the 63 percent of the Pentagon budget that they can’t find. To this, Mizelle notes that several years ago, the DOJ complained that merely monitoring qui tam actions can stress their resources too, except then admits that the government has since agreed to intervene and dismiss unnecessary qui tam actions, which obviates the concern she tried to bring up.
Of note, the government specifically did not intervene to toss the FCA claim in this case.
But it’s actually a much bigger — and apolitical — deal to have bottom rung trial judges running around inventing new constitutional law “although” higher courts have refused. The judiciary is tiered for a reason. Forcing trial judges to apply existing law, even if they don’t like it, discourages litigants from pursuing costly and frivolous challenges to the status quo. It also prevents the appellate courts from having to run constant clean up on rogue district court opinions when there is a presumption in favor of maintaining existing law. A predictable business litigation environment relies on stacking the deck against judges making radical changes to the law willy-nilly just to impress their friends.
One might even call this approach “little-c conservative.”
Given the makeup of the Eleventh Circuit and the Supreme Court, Mizelle might be correctly reading the tea leaves and those bodies — despite not having the votes to strike down Lincoln’s Law previously — may be on the verge of taking a sledgehammer to precedent. But that shouldn’t matter… it’s not HER job to do that. It’s her job to preside over this case and let the appellate process play out.
Which might go a long way to explaining why the ABA didn’t think she was capable of doing this job.
(Opinion on the next page…)
Earlier: Mask Mandate Struck Down Because ‘Sanitation’ Doesn’t Mean ‘Keeping Things Clean’ For… Reasons
Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.