                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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           activity       under      the     FCA.        The   district          court

granted         PAE’s      motion    to      dismiss       the       complaint.         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    Dep’t    v.

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

a    Rule       12(b)(6)       motion     to    dismiss,         a    complaint     must    contain

sufficient “facts to state a claim to relief that is plausible

on its face.”               Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).          The FCA prohibits any person from knowingly presenting

or    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      or     statement         material      to   a     false    or

fraudulent claim.               31 U.S.C. § 3729(a)(1)(A), (B).                        “To state a

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

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defendant    made   a     false     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    can

proceed under an implied false certification theory.                                         Universal

Health    Serv.,    Inc.       v.   United      States,         136      S.    Ct.         1989,     1999

(2016).         Under      that       theory,         when          “a        defendant             makes

representations in submitting a claim but omits its violation of

statutory,      regulatory,          or     contractual               requirements,                 those

omissions    can    be     a    basis     for       liability         if      they         render    the

defendant’s representations misleading with respect to the goods

or services provided.”              Id.      The relevant question is whether

the   defendant       knowingly           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      what       he      obtained            thereby.”

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

(internal    quotation             marks    omitted).              “These   facts    are     often

referred    to     as    the       who,     what,      when,       where,    and    how    of    the

alleged fraud.”           United States ex re. Wilson v. Kellogg Brown &

Root,    Inc.,     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.’”                 Smith, 796 F.3d at 433 (quoting 31 U.S.C.

§ 3730(h)).             In    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     dismissing       Garzione’s

complaint for failure to state a claim.                             Accordingly, we affirm

the   district     court’s          order.        We    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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