USA, et al. v. John Mcavoy, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10604
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
MURRAY FARMER,
JOHN P. MCAVOY,
MARCO ZAVALA,
Interested Parties-Appellants,
versus
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,
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2 Opinion of the Court 20-10604
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.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:17-cv-00470-KD-N
____________________
Before W ILLIAM PRYOR , Chief Judge, WILSON, J ORDAN,
R OSENBAUM , J ILL PRYOR , NEWSOM , B RANCH, G RANT, L UCK , L AGOA ,
B RASHER , ABUDU, and TJOFLAT, Circuit Judges.*
PER CURIAM:
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
* Senior Circuit Judge Tjoflat elected to participate in this en banc proceeding,
pursuant to 28 U.S.C. § 46(c).
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20-10604 Opinion of the Court 3
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 ac-
tion?”
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., 142
S. Ct. 2834 (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., 143 S.
Ct. 1720 (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 Govern-
ment has intervened, but the timing of the intervention makes no
difference.” Polansky, 143 S. Ct. at 1730. Polansky therefore abro-
gates our precedent, Everglades, in which we held that the Govern-
ment may settle an action under § 3730(c)(2) without first interven-
ing 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 Su-
preme Court’s opinion in Polansky.
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