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  3. |“Mere allegations of fraud do not divest the Board of jurisdiction” – Government’s Motion to Dismiss Denied When It Cannot Prove that Appeal Resolution Depends on a Factual Determination of Fraud

“Mere allegations of fraud do not divest the Board of jurisdiction” – Government’s Motion to Dismiss Denied When It Cannot Prove that Appeal Resolution Depends on a Factual Determination of Fraud

Client Alert | 1 min read | 05.07.21

In GSC Constr., Inc., ASBCA No. 62530 (Mar. 1, 2021), the Armed Services Board of Contract Appeals (the Board) denied the Government’s motion to dismiss for lack of jurisdiction.  The contractor submitted a certified claim to the contracting officer (CO) that included costs associated with a change order, and then subsequently filed an appeal with the Board from the CO’s deemed denial of the claim.  The Government filed a motion to dismiss, alleging that the Board lacked jurisdiction to hear the appeal because it would “necessarily” have to make a determination of fact as to whether the contractor had made false claims and/or false statements in support of its claim. 

The Board agreed that making a factual determination of fraud is beyond its jurisdiction, but disagreed that it would need to make that factual determination to resolve the appeal.  Instead, the Board held that the appeal presented an issue of contract interpretation – specifically, whether a subset of work was part of the contract or extra work.  The Board further stated that it could “consider” statements submitted by the contractor’s president and owner, but that it did not have to decide the ultimate question of whether the statements were fraudulent or false to decide whether the work at issue was outside the scope of the contract, and thus, the appeal was properly before it.

This case underscores that in cases involving parallel investigations, “mere allegations of fraud do not divest the Board of jurisdiction.”

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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