Opinion
No. 20-10604
07-18-2023
UNITED STATES of America, Plaintiff-Appellee, Murray Farmer, John P. Mcavoy, Marco Zavala, Interested Parties-Appellants, v. The REPUBLIC OF HONDURAS, (ROH), Moises Starkman, former Minister of FHIS, Carlos Roberto Flores Facusse, former President of the Republic of Honduras, Individually and in his official capacity, Juan Orlando Hernandez, current President of Honduras, individually and in his official capacity, Gabriela Nunez De Reyes, et al., Secretary of State for Finance, Defendants-Appellees.
Michael S. Arif, Arif & Associates, PC, Fairfax, VA, for Interested Party-Appellant John P. Mcavoy. John P. Mcavoy, Fairfax, VA, Pro Se. Michael S. Arif, Arif & Associates, PC, Fairfax, VA, Willie J. Huntley, Jr., The Huntley Firm, PC, MOBILE, AL 36608, for Interested Parties-Appellants Marco Zavala, Murray Farmer. Marco Zavala, Spring, NC, Pro Se. Leah Ann Butler, DOJ-USAO, Southern District of Alabama, MOBILE, AL, Sarah Carroll, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Jay D. Majors, U.S. Department of Justice, Torts Branch, Civil Division, Charles W. Scarborough, U.S. Attorney General's Office, Washington, DC, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 1:17-cv-00470-KD-N Michael S. Arif, Arif & Associates, PC, Fairfax, VA, for Interested Party-Appellant John P. Mcavoy. John P. Mcavoy, Fairfax, VA, Pro Se. Michael S. Arif, Arif & Associates, PC, Fairfax, VA, Willie J. Huntley, Jr., The Huntley Firm, PC, MOBILE, AL 36608, for Interested Parties-Appellants Marco Zavala, Murray Farmer. Marco Zavala, Spring, NC, Pro Se. Leah Ann Butler, DOJ-USAO, Southern District of Alabama, MOBILE, AL, Sarah Carroll, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Jay D. Majors, U.S. Department of Justice, Torts Branch, Civil Division, Charles W. Scarborough, U.S. Attorney General's Office, Washington, DC, for Plaintiff-Appellee. Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, Brasher, Abudu, and Tjoflat, Circuit Judges. PER CURIAM:
Senior Circuit Judge Tjoflat elected to participate in this en banc proceeding, pursuant to 28 U.S.C. § 46(c).
We previously vacated the panel's opinion and ordered this appeal be reheard en banc. United States v. Republic of Honduras, 26 F.4th 1252 (11th Cir. 2022). The en banc court directed the parties to address the following question: "Should this Court overrule its holding and reasoning in United States v. Everglades College, Inc., 855 F.3d 1279 (11th Cir. 2017), and in so doing, decide that the United States may not dismiss a qui tam suit under the False Claims Act under 31 U.S.C. § 3730(c)(2)(A) without first intervening in the action?"
The en banc court convened for oral argument on June 21, 2022. On that same day, the Supreme Court granted a petition for a writ of certiorari to decide the interpretation of 31 U.S.C. § 3730(c). United States ex rel. Polansky v. Exec. Health Res., Inc., — U.S. —, 142 S. Ct. 2834, 213 L.Ed.2d 1063 (2022). We ordered that this appeal be held in abeyance pending the Supreme Court's decision.
On June 16, 2023, the Supreme Court issued its opinion in United States ex. rel Polansky v. Executive Health Resources, Inc., 599 U.S. 419, 143 S. Ct. 1720, 216 L.Ed.2d 370 (2023). As relevant here, the Court held that § 3730(c)(2), which (among other things) permits the Government to dismiss or settle certain False Claims Act actions, "applies only if the Government has intervened, but the timing of the intervention makes no difference." Polansky, 143 S. Ct. at 1730. Polansky therefore abrogates our precedent, Everglades, in which we held that the Government may settle an action under § 3730(c)(2) without first intervening in the action. See Everglades, 855 F.3d at 1285-86.
For that reason, we VACATE the district court's order and REMAND this case for further proceedings consistent with the Supreme Court's opinion in Polansky.