Two judges appointed by President Donald Trump have overturned a fellow Trump appointee and revived a whistleblower’s Medicare fraud lawsuit.
On Tuesday, the 11th Circuit Court of Appealspanel vacated a 2024 decision by U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida. Appeals Court Judges Elizabeth Branch and Robert Luck found that Mizelle used “fictional” reasoning to kill a lawsuit brought by a Medicare whistleblower, according to the court’s ruling.
Branch and Luck were both appointed by Trump, just like Mizelle, whom they overruled. Judge Federico Moreno, a George H.W. Bush appointee, joined them for a unanimous ruling.
The lawsuit that Branch and Luck revived was brought by Clarissa Zafirov, a physician who accused her employer and a group of Medicare Advantage insurers of submitting false diagnosis codes to inflate their federal payments, according to the ruling. Zafirov sued under the False Claims Act’s qui tam provisions, which let private citizens, or “relators,” pursue fraud claims on the government’s behalf, according to the court ruling.
Mizelle had thrown the case out after ruling that whistleblowers like Zafirov are unappointed “officers of the United States” who wield executive power the Constitution reserves for presidential appointees. The appeals court flatly rejected that view.
“We disagree and hold that relators are not officers of the United States because they do not occupy a continuing position established by law,” Branch wrote in the court’s ruling.
Branch reserved her sharpest language for Mizelle’s central theory, which was that the law created a standing “office of relator.”
“There is no ‘office of relator,’” Branch wrote. “That term is not in the FCA or any other law.”
Branch dismissed the “fictional ‘office of relator’” as a departure “from the Supreme Court’s methodology” and found a whistleblower’s role temporary and personal rather than a lasting government post. “A relator’s tenure is occasional and temporary because it lasts the length of one case,” Branch wrote.
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