Where the former member of a governing board of a day school argued he was expelled from the board in retaliation for protected activity under the False Claims Act, but he was not a contractor, employee or agent of the school, the defendants prevailed on this claim.
Background
The governing board of Charleston Day School, or CDS, voted to expel plaintiff Marshall Austin, one of its members. Plaintiff says that vote was retaliation for his efforts to investigate fraudulent Covid funding applications. The school says he was fighting its Covid policies and disrupting operations.
Plaintiff sued school, board chair and head of school for retaliation under the False Claims Act, or FCA. The district court granted defendants’ motion for summary judgment.
Analysis
The FCA’s anti-retaliation provision provides, “Any employee, contractor, or agent” may sue an employer or principal who retaliated against him “because of lawful acts . . . in furtherance of an action under this section or efforts to stop [one] or more violations of this subchapter.”
Plaintiff does not claim to be an employee or contractor. That leaves him only the agency option. Plaintiff agrees that courts should apply common-law agency principles to discern the scope of that term. Plaintiff also agrees that courts should apply the Restatement of Agency to discern the scope of those common-law principles. Unfortunately for plaintiff, the Restatement of Agency negates his position, and so resolves this case.
Agency...
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