JOHN D. KING, Plaintiff-Appellant,
UNITED STATES GOVERNMENT, Defendant-Appellee.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:14-cv-01171-SDM-EAJ.
WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
appeal requires us to decide whether a provision of the False
Claims Act, 31 U.S.C. § 3730, waives the sovereign
immunity of the United States. In 2008, John King filed a
qui tam action under the Act that the district court
dismissed because King committed discovery violations. In
2014, King filed a complaint for money damages against the
United States on the ground that the government had secretly
settled the violations he identified in his original action.
The district court dismissed his complaint as barred by
sovereign immunity. We affirm.
2008, King filed a qui tam action as a relator on
behalf of the United States. In that action, King alleged
that several defendant corporations violated the False Claims
Act. The government did not intervene. Later, the district
court dismissed the action with prejudice because of
King's discovery violations. And we summarily affirmed
his qui tam action was dismissed, King filed this
suit against the United States. He alleges that the
government conducted an investigation of the fraud he
identified and covertly settled with the defendants in his
qui tam action before its dismissal. King seeks a
share of an alleged settlement of more than $7.5 million paid
to the government. He argues that this allegedly covert
settlement violated his rights under section 3730(c)(5) of
the False Claims Act, which provides that, when the
government purses an "alternate remedy, " "the
person initiating the action shall have the same rights in
such proceeding as such person would have had if the action
had continued under this section." 31 U.S.C. §
3730(c)(5). The government responds that it filed a
declaration in King's original qui tam action to
explain that the government had investigated the allegations
in King's complaint and that, after the investigation, it
invoked its contractual rights with the defendants in the
qui tam action and settled for "the amount of
the costs that the United States had incurred in its
district court dismissed King's complaint as barred by
sovereign immunity. It concluded that King's argument
that the government waived its immunity relied only on
sections 3730(c)(5) and (d)(1) and that neither section
contains an express waiver of sovereign immunity.
STANDARD OF REVIEW
review de novo the district court's dismissal of
a complaint for sovereign immunity." Contour Spa at
the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d
1200, 1203 (11th Cir. 2012) (italics added) (quoting
Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282,
1285 (11th Cir. 2001)). "[W]e take as true the facts as
alleged in [the] complaint . . . ." Id. at
1201. And "we read briefs filed by pro se
litigants liberally . . . ." Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
wants to sue a different kind of king, but we are "heirs
to a system in which the sovereign, the king, was not
amenable to suit." Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 281
(2012). "Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit." Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).
"Waivers of the Government's sovereign immunity, to
be effective, must be unequivocally expressed."
United States v. Nordic Village, Inc., 503 U.S. 30,
33 (1992) (internal quotation marks omitted); see also
City of Jacksonville v. Dep't of Navy, 348 F.3d
1307, 1314 (11th Cir. 2003). In other words, a waiver of
sovereign immunity "cannot be implied."
Franconia Assocs. v. United States, 536 U.S. 129,
141 (2002) (internal quotation marks omitted); see
also Scalia & Garner, supra, at 281
("A statute does not waive sovereign immunity . . .
unless that disposition is unequivocally clear.").
3730, which addresses "[c]ivil actions for false claims,
" provides no express waiver of the sovereign immunity
of the United States for a collateral attack on a settlement
between the government and a qui tam defendant. 31
U.S.C. § 3730. King's complaint alleged a violation
of section 3730(c)(5). But that provision, known as the
alternate remedies clause, enables the government to elect to
purse an alternate remedy, notwithstanding the earlier filing
of a relator's suit about the same claim. And it provides
the relator "the same rights" in that alternate
proceeding as the relator would have had in the original
suit. 31 U.S.C. § 3730(c)(5). This section does not
permit a relator to sue the government for money damages
after his qui tam suit has been dismissed due to his
own discovery violations and after the government has
successfully obtained an alternate remedy. Likewise, section
3730(d) specifies when a court shall award a relator a
portion of "the proceeds of the action or settlement of
the claim" and "an amount for reasonable expenses,
" "attorneys' fees[, ] and costs . . . against
the defendant." 31 U.S.C. § 3730(d). That section
says nothing about a complaint filed against the government
by a relator whose qui tam action was dismissed for
a discovery violation after the government obtained a
settlement. It does not expressly waive sovereign immunity
from that kind of collateral attack.