James P. Brown v. Morehouse College

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13773
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-02700-MHC

JAMES P. BROWN,

Plaintiff-Appellant,

versus

MOREHOUSE COLLEGE,

Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 23, 2020)
Before WILSON, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:
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Plaintiff James Brown brought this action against defendant Morehouse
College under 31 U.S.C. § 3730, alleging wrongful retaliation under the federal
False Claims Act. The district court granted summary judgment to Morehouse
College. Brown appeals that decision, and Morehouse College asks for sanctions
against Brown for a frivolous appeal. We affirm the district court’s holding as to
Brown’s retaliation claims, and we deny Morehouse College’s motion for
sanctions.

I.
James Brown was employed by Morehouse College for about eleven and a
half years, between November 1996 and June 2015. Beginning in November 2004,
Brown was employed as the Director in the Office of Research Careers, a position
that was completely funded by grants. He was also the Principal Investigator for
the National Science Foundation’s Renaissance Scholarship program, which meant
that he “was responsible for ensuring compliance with the reporting obligations
established by the NSF.”
Six years into the last role he held with the College, Brown submitted an
internal complaint with the College’s EthicsPoint hotline. The complaint
concerned the FACES grant, which according to Brown was a National Science
Foundation sub-contract with Georgia Tech. In his complaint, Brown reported
what he saw as errors with the College’s handling of the FACES grant. In
particular, he stated that the College failed to comply with its cost-sharing
obligations, and that the College was wrongfully expensing the grant for more
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people than were on budget. A report of a subsequent meeting between Chief
Ethics and Compliance Officer Doris Coleman and Brown revealed that, according
to Brown, “all of the errors have to do with billing issues. His major concern is
that expenditures do not conform to the grant provisions.” Seven months later, the
College sent Brown a letter to formally respond to the complaint. In the letter, the
College declined to remove one of the contested persons from the grant and stated
that it considered “this report closed.”
Two years later, Brown sent a memorandum to Dr. Garikai Campbell, the
College’s provost. In it, Brown raised three concerns. First, he said that the
College should have been recovering more funds from Georgia Tech under the
FACES grant. Second, he said that the College had excessively charged another
grant for fringe benefits. And third, he claimed that the budget analysts refused to
provide feedback on their rejections of spending requests.
It was around the time of that letter to Campbell that Brown’s troubles
started. They began with a lapse in salary disbursement that lasted from
September 2013 until sometime in early 2014. And they concluded on June 1,
2015, when Brown was provided with a notice of contract non-renewal—which is
another way of saying that his employment with the College was ended. Brown
found a lawyer, who sent a letter to a member of the College’s Board of Trustees
that stated that Brown made his lawyer “aware of the whistleblower statutes with
regard to grant funding from NASA and NSF.”
If that letter was meant as a threat, Brown made good on it. He filed suit
against the College, claiming that the College’s actions were in retaliation for
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protected conduct under the federal False Claims Act, 31 U.S.C. § 3730(h). In his
complaint, he claimed that the College “acted by and through its agent’s servants
and employees to intentionally discriminate and punish” Brown “for reporting
prior misuse of Federal funds spending.” Following a deposition of Brown and
other discovery actions, the College moved for summary judgment. In its brief in
support of its motion, the College claimed that Brown was terminated for “repeated
failure to follow the scholarship selection criteria for the Renaissance Scholarship,”
as well as because “funding for the Renaissance Scholarship expired, thereby
eli minating funds necessary to support Dr. Brown’s role.”
The district court granted the College’s motion. Noting that “Brown’s
EthicsPoint complaint alerted Morehouse that, at most, it was misusing and
abusing federal funds” and that Brown’s 2013 memo did not suggest “that
Morehouse was somehow defrauding the United States,” the district court found
that Brown did not engage in protected activity. More specifically, the district
court found that “the evidence in the record does not show that Brown’s
EthicsPoint complaint or letter to Campbell made Morehouse aware of the
possibility of an FCA action.”
Brown now appeals to this Court. Displeased by that move, the College
filed a motion under Federal Rule of Appellate Procedure 38, seeking damages for
a frivolous appeal.
II.
“We review a district court’s grant of summary judgment de novo.
Summary judgment is appropriate only when no genuine issue of material fact
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exists and the moving party is entitled to judgment as a matter of law.” Tesoriero
v. Carnival Corp., 965 F.3d 1170, 1177 (11th Cir. 2020) (quotation marks and
citation omitted).
III.
A.
The federal False Claims Act (FCA) provides a cause of action for an
employee “discriminated against in the terms and conditions of employment
because of lawful acts done” by the employee “in furtherance of an action under”
the FCA “or other efforts to stop 1 or more violations of” the FCA. 31 U.S.C. §
3730(h). More simply, an employer may not retaliate against an employee for
protected activity under the FCA. And, according to the parties, protected activity
under the FCA includes those employee actions by which FCA litigation was “a
distinct possibility.”
1
Childree v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1146
(11th Cir. 1996).
Brown would like us to find that the lapse in his salary and the termination
of his employment were retaliatory actions by the College. He argues that his
salary woes were the result of retaliation. He proffers his apparently sterling
evaluations to show that the College couldn’t have terminated his employment for

1
The College uses the “distinct possibility” test for whether an employee’s activity is protected.
In 2009 and 2010, the anti-retaliation section of the FCA was amended to arguably encompass a
different standard for protected activity. See, e.g., United States ex rel. Grant v. United Airlines
Inc., 912 F.3d 190, 201 (4th Cir. 2018). This Circuit has not yet addressed if or how the
amended language has changed what counts as protected activity. Because both Brown and the
College accept the application of the “distinct possibility” test, we assume for the purposes of
this case that it applies.
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performance issues. And he argues vigorously that the lack of grant funding for
his position was not the true reason for his termination.
The problem for Brown is that his arguments try to run before they walk.
Perhaps the College was retaliating against him, perhaps it was not. Either way,
the FCA only prohibits retaliation against protected activity, and nothing Brown
raises on appeal suggests that his activity was protected. More bluntly, the sorts of
activities that on appeal he accuses the College of committing do not support any
reason to think the College was violating the FCA.
Brown consistently describes his reports as raising “mismanagement of
funds,” abridging “operational guidelines,” “financial irregularities,” “misuse of
funds,” and “abuse of funds.” But it is well-established that mere misuse or bad
practice is not enough to ground an FCA claim. Rather, FCA liability “arises from
the submission of a fraudulent claim to the government, not the disregard of
government regulations or failure to maintain proper internal policies.” Urquilla-
Diaz v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015) (quoting Corsello v.
Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005)). And nothing Brown raises
on appeal even gestures at a possibility that the College was submitting anything to
the government. And if there is no possibility raised of the College submitting
anything to the government, neither can there be any possibility of an FCA
violation.
2

2
This may well be a different case if Brown argued that the College was being wrongfully
reimbursed, and that such reimbursement was fraud upon the government. But because he does
not mention this aspect with any specificity, we decline to consider it.
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Brown’s production of his lawyer’s 2016 letter threatening FCA litigation is
similarly unhelpful to his case. Even if the letter raised the “distinct possibility” of
FCA litigation, the distinct possibility standard requires that such possibility be in
existence “at the time the” protected activity occurred. Childree, 92 F.3d at 1146.
This letter, of course, came after anything Brown did as an employee of the
College. It cannot reach back in time to make his activity protected under the
FCA.
If Brown did not engage in protected conduct, then it does not matter if the
College retaliated or not. Brown’s arguments on appeal do not persuade us that his
conduct raised any possibility of FCA litigation. Thus, Brown’s appeal fails on the
merits.
B.
The College seeks sanctions under Rule 38 of the Federal Rules of Appellate
Procedure. Under Rule 38, if we determine “that an appeal is frivolous,” we may,
“after a separately filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the appellee.” Fed. R.
App. Proc. 38. “Rule 38 sanctions are appropriately imposed against appellants
who raise ‘clearly frivolous claims in the face of established law and clear facts.’”
Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (quoting
Farese v. Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003)). And in this Circuit, “a
claim is clearly frivolous if it is ‘utterly devoid of merit.’” Id. (quoting Bonfiglio v.
Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993)). As these rules show, a losing
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appeal is not synonymous with a frivolous one. Brown’s claim is the former, but
not the latter. We decline to issue sanctions.
IV.
Not every claim that an employer is committing a violation of law falls
under the federal False Claims Act. The FCA is not a panacea, and for Brown’s
alleged injuries, it provides no cure. The district court’s judgment is AFFIRMED.
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