US ex rel. Anthony Garzione v. PAE Government Services, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-00833-AJT-JFA. Copies to all parties and the district court. [999961550]. [16-1349]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1349

UNITED STATES EX REL. ANTHONY GARZIONE,
Plaintiff – Appellant,
v.
PAE GOVERNMENT SERVICES, INC., d/b/a PAE,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony John Trenga,
District Judge. (1:15-cv-00833-AJT-JFA)

Submitted:

October 26, 2016

Decided:

November 3, 2016

Before WILKINSON and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jack Jarrett, THE SPIGGLE LAW FIRM, PLLC, Arlington, Virginia,
for Appellant. Jason N. Workmaster, Steven A. Shaw, John W.
Sorrenti, COVINGTON & BURLING LLP, Washington, D.C., for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony Garzione filed a complaint against PAE Government
Services, Inc. (“PAE”), pursuant the False Claims Act, 31 U.S.C.
§§ 3728-3733 (2012) (FCA), asserting that PAE submitted false
claims for payment in connection with its procurement of water
bottles

under

a

contract

with

the

Department

of

State

and

alleging that PAE terminated his employment in retaliation for
his

protected

granted

activity

PAE’s

motion

under

to

the

dismiss

FCA.
the

The

district

complaint.

court

Finding

no

error, we affirm.
We review de novo a district court’s dismissal under Fed.
R.

Civ.

P.

12(b)(6),

accepting

factual

allegations

in

the

complaint as true and drawing all reasonable inferences in favor
of

the

nonmoving

party.

Kensington

Volunteer

Fire

Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012).
a

Rule

12(b)(6)

motion

to

dismiss,

a

complaint

Dep’t

v.

To survive

must

contain

sufficient “facts to state a claim to relief that is plausible
on its face.”
(2007).
or

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

The FCA prohibits any person from knowingly presenting

causing

to

be

presented

a

false

or

fraudulent

claim

for

payment, or knowingly making, using, or causing to be made or
used,

a

false

record

fraudulent claim.

or

statement

material

to

31 U.S.C. § 3729(a)(1)(A), (B).

a

false

or

“To state a

claim under the FCA, the plaintiff must prove: (1) that the
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defendant

made

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a

false

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statement

or

engaged

in

a

fraudulent

course of conduct; (2) such statement or conduct was made or
carried out with the requisite scienter; (3) the statement or
conduct was material; and (4) the statement or conduct caused
the

government

to

pay

out

money

or

to

forfeit

money

due.”

United States ex rel. Harrison v. Westinghouse Savannah River
Co., 352 F.3d 908, 913 (4th Cir. 2003).
The

Supreme

Court

has

recently

held

that

a

relator

proceed under an implied false certification theory.
Health

Serv.,

(2016).

Inc.

Under

v.

United

that

States,

theory,

136

when

S.

“a

Ct.

can

Universal
1989,

defendant

1999
makes

representations in submitting a claim but omits its violation of
statutory,
omissions

regulatory,
can

be

a

or

contractual

basis

for

requirements,

liability

if

they

those

render

the

defendant’s representations misleading with respect to the goods
or services provided.”
the

defendant

Id.

knowingly

The relevant question is whether

violated

a

requirement

that

the

defendant knows is material to the government’s decision to pay
a claim.

Id. at 1996.

That requirement, however, need not be

an express condition of payment.

Id. at 2001-04.

In addition, Fed. R. Civ. P. 9(b) requires an FCA plaintiff
to, “at a minimum, describe the time, place, and contents of the
false representations, as well as the identity of the person
making

the

misrepresentation

and
3

what

he

obtained

thereby.”

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Smith v. Clark/Smoot/Russell, 796 F.3d 424, 432 (4th Cir. 2015)
(internal
referred

quotation
to

as

the

alleged fraud.”
Root,

Inc.,

marks
who,

omitted).
what,

“These

when,

facts

where,

and

are
how

often
of

the

United States ex re. Wilson v. Kellogg Brown &

525

F.3d

370,

379

(4th

Cir.

2008)

(internal

quotation marks omitted).
Finally,

“[t]he

[FCA’s]

whistleblower

provision,

which

Congress broadened in 2009, prohibits retaliation ‘because of
lawful

acts

done

[]

in

furtherance

of

an

action

under

this

section or other efforts to stop [one] or more violations of
this subchapter.’”
§ 3730(h)).

In

Smith, 796 F.3d at 433 (quoting 31 U.S.C.
order

to

plead

a

sufficient

claim

for

retaliation under the FCA, a relator “must allege that (1) he
engaged in protected activity, (2) the employer knew about the
activity, and (3) the employer took adverse action against him
as a result.”

Id.

A relator places his employer on notice of

protected actions if he expresses concern to his employer that
there is a reasonable possibility of litigation based on fraud
or illegality.

Eberhardt v. Integrated Design & Constr., Inc.,

167 F.3d 861, 868-69 (4th Cir. 1999).
We have thoroughly reviewed the record and conclude that
the

district

court

did

not

err

in

complaint for failure to state a claim.
the

district

court’s

order.

We
4

dismissing

Garzione’s

Accordingly, we affirm

dispense

with

oral

argument

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because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid in
the decisional process.

AFFIRMED

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