                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                         ________________________         ELEVENTH CIRCUIT
                                                             September 19, 2005
                               No. 05-12747                THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                       D. C. Docket No. 03-00178-CV-1

KEVEN J. MACK,

                                                             Plaintiff-Appellant,

                                    versus

AUGUSTA-RICHMOND COUNTY, GEORGIA,
ADMINISTRATOR GEORGE KOLB,
in his Individual and Official Capacity,

                                                          Defendants-Appellees,

LEE BEARD, in his Individual and Official Capacity,

                                                          Defendant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                            (September 19, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

       Appellant, Keven Mack, appeals the district court’s grant of summary

judgment in favor of Appellees, Augusta-Richmond County and George Kolb, in

his action alleging, inter alia, that Appellees terminated him in violation of the

False Claims Act (“FCA”) providing protection to whistle blowers, 31 U.S.C. §

3729, et seq.1 For the following reasons, we affirm the district court’s judgment.

                                     I. BACKGROUND

       Appellant worked for the consolidated government of Augusta-Richmond

County (“Augusta”) as the Director of Housing and Neighborhood Development.

His job duties included overseeing Augusta’s disbursement of federal grant money

from the United States Department of Housing and Urban Development (“HUD”)

through the Community Development Block Grant program (“CDBG”).2

Appellant’s duty to oversee these disbursements required efficient management

and ensuring compliance with the applicable regulations.


       1
        Appellees make reference to Appellant’s claim made to the district court under 42
U.S.C. § 1983 alleging his termination violated his right to free speech. However, Appellant
makes no argument under § 1983 in his brief on appeal; thus, while referenced in his Civil
Appeal Statement, the argument is waived. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989).
       2
       Sometime around the date of Appellant’s hire and continuing beyond his employment,
Augusta was audited by HUD and faced problems with HUD compliance.

                                               2
       Sometime in 2000, Augusta named the East Augusta Community

Development Corporation (“East Augusta”) as a Community Development

Housing Organization (“CDHO”), which are development partners eligible for

HUD funds through the CDBG program. Augusta entered into a contract with

East Augusta to oversee the rehabilitation of the Lincoln Square Apartments in

Augusta. Under the contract, East Augusta would act as sub-recipient of CDBG

funds provided to Augusta by HUD. East Augusta’s use of CDBG funds was

subject to the HUD regulations and guidelines. Failure to comply with the

applicable HUD guidelines and bidding procedures could result in Augusta being

required to remit all funds disbursed under the CDBG. East Augusta pulled in a

partner, Capital Development Corporation, to help East Augusta remain compliant

with the HUD guidelines.

       East Augusta sought a contractor for the Lincoln Square project. However,

at a meeting to discuss the bidding procedures required to comply with the HUD

guidelines, employees of Appellant’s department learned that East Augusta had

already entered into a contract with Gold Mech, Inc. (“Gold Mech”)3 for the

Lincoln Square project without soliciting competitive bids as the HUD regulations



       3
        It is unclear what the proper designation is for this entity as it is referred to as GoldMech,
Inc., Gold Mech, Corp. and Gold Mech, Inc. in the record.

                                                  3
require. Following this meeting, at Appellant’s request, an employee in

Appellant’s department contacted HUD to obtain an opinion about this

procurement. HUD issued a memorandum opining that Capital Development

Corporation violated the HUD regulations by not utilizing a competitive bidding

process. In subsequent months, Augusta Commissioners and Augusta’s attorney

Jim Wall (“Wall”) became involved and Augusta continued to work with HUD to

resolve the problem.

      In September 2001, Appellant, several Augusta Commissioners, Wall and

other employees had a meeting with Stella Taylor of HUD to discuss the Lincoln

Square project. During the meeting, Augusta and HUD agreed to carve out three

items of the construction contract to rebid according to HUD regulations.

Invitations for bids were sent out, including an invitation to Gold Mech, whose bid

was significantly lower that the next low bidders. After Appellant learned of Gold

Mech’s participation in the bidding, he called HUD and it appears later sent an e-

mail to Wall requesting a meeting to discuss the procurement issue before

awarding contracts on the rebids. However, Gold Mech had already been awarded

the contracts. Another employee in Appellant’s department, John Kemp,

contacted HUD regarding the rebids and Kemp sent Appellant an e-mail

expressing his concern about the rebids and noncompliance with the HUD

                                         4
guidelines. Appellant forwarded the e-mail to Wall and copied it to his supervisor

the City Administrator, George Kolb (“Kolb”). Wall responded, disagreeing with

Kemp’s assessment and indicated that he had spoken with Stella Taylor of HUD to

confirm that there was no problem with Gold Mech participating in the rebid.

Wall also stated that he would “appreciate [Appellant] not calling HUD for a

second opinion on issues which you ask me to address–this merely complicates the

whole process.”

      Subsequently, Kolb asked for Appellant’s resignation and presented him

with a severance package and informed Appellant that his termination would

follow if he did not resign. Kolb allegedly responded to Appellant’s questions as

to why he was being terminated that he did not like Appellant bringing up the fact

that Gold Mech had rebid. Almost a month later, at a regular meeting of the

Augusta Commission, Kolb recommended to the Commission that Appellant’s

employment be terminated. The Commission meeting minutes reflect that Kolb

recommended termination, stating only: “I have lost confidence in [Appellant’s]

ability to lead the Housing and Neighborhood Department effectively.” On the

day of the commission meeting, Appellant’s attorney faxed a letter to Wall asking

that the letter be presented to the Commission prior to the vote. The letter stated

that Kolb ignored Appellant’s accomplishments and simply criticized him about

                                          5
the Lincoln Square project and accused Kolb and the Commission of acting to

terminate Appellant “for protecting the public’s trust.” The Commission voted

seven-to-one to terminate Appellant. In his deposition Kolb gave several reasons

for recommending Appellant’s termination, including lack of sufficient

management skills and inability to make decisions without outside assistance. The

Commissioners filed affidavits stating that they voted to terminate based upon

Kolb’s recommendation.

      Plaintiff subsequently filed a complaint alleging violations of the False

Claims Act, 31 U.S.C. 3129 et seq., inter alia, contending he was terminated in

retaliation for raising concerns and questions about Gold Mech’s participation in

the rebid process.

                          II. STANDARD OF REVIEW

      This court reviews a district court’s grant of summary judgment de novo,

Jones v. City of Columbus, 120 F.3d 248, 251 (11th Cir. 1997), viewing the facts

in the light most favorable to the nonmovant, Childree v. UAP/GA AG Chem.,

Inc., 92 F.3d 1140, 1142 (11th Cir. 1996).

                                III. DISCUSSION




                                         6
      Appellant argues that his termination was an act of retaliation violating the

FCA, 31 U.S.C. § 3729 et seq. Pursuant to § 3730(h) “whistle blower” protection

is provided for an employee

      who is discharged . . . because of lawful acts done by the employee on

      behalf of the employee or others in furtherance of an action under this

      section, including investigation for, initiation of, testimony for, or

      assistance in an action filed or to be filed under this section, shall be

      entitled to all relief necessary to make the employee whole.

Protection under this provision requires a showing that Appellant was engaged in

protected conduct and that Appellees retaliated against him because of that

protected conduct. See Mann v. Olsten Certified Healthcare Corp., 49 F. Supp. 2d

1307, 1313 (M.D. Ala. 1999).

      Though it is possible Appellant engaged in protected conduct, we need not

decide this as Appellant is unable to establish his termination was retaliatory.

Appellant was terminated by the Augusta Commission. Assuming Appellant was

investigating or acting in furtherance of a fraud report as required for an FCA

claim, Appellant is unable to show that the Commission was aware of this

conduct. Appellant cannot show that the employer, the Commission, could have

reasonably believed Appellant’s actions provided a “distinct possibility” that

                                          7
Appellant would file a False Claims Act suit. See Childree, 92 F.3d at 1146

(holding that protection under § 3730(h) is available when a false claims action is

actually filed or “where the filing of such an action . . . was a ‘distinct

possibility’”); see e.g. Maturi v. McLaughlin Research Corp., 413 F.3d 166, 172-

73 (1st Cir. 2005) (noting that the employer must know of the employee’s

protected conduct to prevail on an FCA claim). Kolb did not have the power alone

to terminate Appellant; instead, the Commission held that ultimate power. For the

Commission to have acted in a retaliatory manner, it follows that they must have

been aware of and acted as a result of Appellant’s allegedly protected conduct.

See Mann, 49 F. Supp. 2d at 1314. Moreover, even if Appellant could show that

Kolb acted in a retaliatory manner, this would be insufficient because ultimate

terminating power rested with the Commission, not Kolb alone. See Matthews v.

Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002) (holding that in an §

1983 retaliation action “[a]n unconstitutional motive on the part of one member of

a three-member majority is insufficient to impute an unconstitutional motive to the

Commission as a whole.”)

      The record reflects that the Commissioners voted to terminate Appellant

based upon Kolb’s recommendation and expressed “lack of confidence” in

Appellant’s ability to continue in his management position effectively. The e-

                                            8
mails sent between Kolb, Wall and Appellant evidence that Appellant was simply

trying to ensure compliance with the HUD regulations not that an FCA action was

a “distinct possibility.” See, e.g. Maturi, 413 F.3d at 173 (“[W]here an employee’s

job responsibilities involve overseeing government billings or payments, his

burden of proving that his employer was on notice that he was engaged in

protected conduct should be heightened. Yet, such an employee can put his

employer on notice ‘by any action which . . . [,regardless of his job duties,] would

put the employer on notice that [FCA] litigation is a reasonable possibility.’”

(quoting Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861,868 (4th

Cir. 1999)). Moreover, assuming this was evidence of protected activity, the

record does not reflect that these e-mails were brought to the full Commission’s

attention. Further, there does not appear to be evidence that the letter from

Appellant’s attorney sent to Wall was brought to the Commission’s attention.

However, even if the letter was given to the Commissioners, that fact would not

provide a reasonable basis from which to conclude that the Commission was on

notice of Appellant’s “protected activity.” The record is void of evidence from

which it could be reasonably inferred that the Commission had notice of the

distinct possibility that Appellant would file a False Claims Act and that his

termination was in retaliation for such conduct.

                                          9
                               IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s well-reasoned

judgment, 365 F. Supp. 2d 1362 (S.D. Ga. 2005), granting Appellees’ Motion for

Summary Judgment.

      AFFIRMED.




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