Full Opinion

USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 1 of 11 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 25-1858 MARSHALL AUSTIN, Plaintiff – Appellant, v. CHARLESTON DAY SCHOOL, CDS; EMMIE G. HERSHEY; JUDITH FOLEY ARNSTEIN, Defendants – Appellees. Appeal from the United States District Court for the District of South Carolina, at Charleston. Joseph Dawson, III, District Judge. (2:23−cv−02899−JD) Argued: September 17, 2026 Decided: October 19, 2026 Before WILKINSON, KING, and RUSHING, Circuit Judges. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Rushing joined. ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville, South Carolina, for Appellant. Alice F. Paylor, SAXTON & STUMP, LLC, Charleston, South Carolina, for Appellees. ON BRIEF: Isabelle S. Young, Bijan K. Ghom, SAXTON & STRUMP, LLC, Charleston, South Carolina, for Appellees. USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 2 of 11 WILKINSON, Circuit Judge: The governing board of Charleston Day School voted to expel plaintiff Marshall Austin, one of its members. Austin says that vote was retaliation for his efforts to investigate fraudulent Covid funding applications—an activity protected by the False Claims Act. The school says Austin was fighting its Covid policies and disrupting operations. We need not rule on this back-and-forth. The text of the False Claims Act keeps us from second-guessing the board’s judgment of the qualifications of its own members. Since Austin was not an “employee, contractor, or agent” of the school, he cannot maintain a retaliation suit. 31 U.S.C. § 3730(h)(1). We must thus affirm. I. Marshall Austin, a former federal prosecutor responsible for white-collar crimes and false claims, joined the board of trustees of Charleston Day School (“CDS”) in June 2021. His children had been attending the school for several years. CDS is a private school controlled by a board of trustees. The board has an Executive Committee, which may receive delegated powers from the full board of trustees. The Chair of the board of trustees is the head of the Executive Committee. Trustees can be removed by a two-thirds vote of the board. J.A. 572. When Austin was on the board, Emmie Hershey was the Chair, and Judith Arnstein was the Head of School, the administrator responsible for day-to-day operations. 2 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 3 of 11 Austin was part of three board committees: the Committee on Trustees, the Property Committee, and the Strategic Planning Committee. Hershey and Kaky Grant (a fellow trustee) asked Austin to fundraise and recruit families on behalf of the school. Austin testified: “They asked me to fundraise for them. Emmie and Kaky came and asked to do that. They asked us to lead the families, to recruit. They asked us to do a lot of things.” J.A. 374, Appellant’s Reply Br. 4. Austin’s tenure on the board also coincided with the Covid-19 pandemic. After the pandemic started, but still before Austin joined the board, the school applied for and received federal Covid funds of two kinds, the Paycheck Protection Program (PPP) and the Emergency Assistance to Nonpublic Schools (EANS). Then, in September 2020, still before Austin joined the board, the board voted to apply for forgiveness of the PPP loans. After obtaining forgiveness, the school had a budget surplus of almost $700,000. In 2021, after Austin joined the board, the board voted to transfer those surplus funds to the endowment. Meanwhile, the pandemic began to create other controversies. Both Austin and his wife, Francie Austin, objected strongly to CDS’s mandatory mask requirements. Starting in late 2021, Francie began to email various CDS employees, including Arnstein and Hershey, to complain. Francie was especially upset when the board voted to adopt a mask- optional policy, but Arnstein, as Head of School, decided to keep a mask mandate in place. Francie argued that Arnstein lacked the authority to make this decision, said the board’s vote was the one that counted, and said she would “plan to follow the board’s decision,” 3 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 4 of 11 copying her children’s teachers on the email and signing it, “Francie and Matt Austin.” J.A. 513. Francie also learned about the board’s vote on the mask-optional policy before it became public. Hershey worried that Austin might have shared this information with his wife, thereby breaching the board’s confidentiality rules, though the record does not establish proof. See J.A. 721–22, 706. On December 20, 2021, Austin logged into the Board Portal, a resource for board members that contained various information about the school. Among other things, he looked through the board’s financial documents, and saw a strategic financial plan that contemplated scenarios with or without PPP funds. See J.A. 360. After noticing that information, he left his computer, and, when he returned later that day, he found his access to the board Portal had been cut off by Hershey. See J.A. 693. In the weeks that followed, Austin made various efforts to obtain records about CDS’s use of Covid funds, while Francie continued sending emails about the other Covid policies. Sometime in late January or early February 2022, the Executive Committee decided to ask the full board to vote to remove Austin. Austin learned about the plans to remove him on February 3, 2022. He subsequently reached out to at least four board members to discuss his concerns about fraud or misuse related to the Covid funds, and also reached out to two AUSAs or former AUSAs to discuss the issue. On February 6, he accused Hershey and Arnstein of retaliation in a text message. See J.A. 494. On February 11, in a special meeting, the board of trustees formally voted to remove Austin as a member. The motion to remove him cited his “repeated failure to act in the best 4 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 5 of 11 interests of the school, to cause disruption to school operations, to question authority of the head of school and the executive committee of the board of trustees, to threaten legal action against board members and school employees.” J.A. 171. On June 21, 2023, Austin sued the school, Arnstein, and Hershey for retaliation under the False Claims Act, 31 U.S.C. § 3730(h). On September 30, 2024, the school filed a motion for summary judgment, which the district court granted on June 25, 2025. First, the district court ruled that the FCA authorizes no individual supervisor liability, and dismissed the claims against Arnstein and Hershey on that basis. Austin is not pursuing those claims on appeal; the school is the only remaining defendant. On the remaining claims, the district court granted summary judgment for two reasons. First, it determined that Austin could not maintain his claim because he was not an “employee, contractor, or agent” of the school under 31 U.S.C. § 3730(h). Second, it found that Austin could not prove that the school even “knew of [his] protected activity” or that it “took adverse action against him because of this protected activity.” J.A. 892–99. Austin appealed. II. We review de novo a district court’s grant of summary judgment, drawing permissible inferences in favor of the party opposing the motion. Evans v. Int'l Paper Co., 936 F.3d 183, 191 (4th Cir. 2019). Summary judgment is proper when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Our review is not limited to the grounds on which the district court 5 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 6 of 11 relied; instead, we may affirm “on any basis fairly supported by the record.” Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 2002). The FCA allows anyone to bring a qui tam action against a private party who has defrauded the United States Government. 31 U.S.C. § 3730(b). But its anti-retaliation provision is much narrower. “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.” 31 U.S.C. § 3730(h)(1). Austin does not claim to be an employee or contractor. That leaves him only the agency option. Austin agrees that courts should apply common-law agency principles to discern the scope of that term, pointing to Krakauer v. Dish Network, LLC, 925 F.3d 643, 659 (4th Cir. 2019) (“[W]e may . . . assume that federal statutes are written with familiar common law agency principles in mind.”). Austin also agrees that courts should apply the Restatement of Agency to discern the scope of those common-law principles. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739–41 (1989); Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997). Unfortunately for Austin, the Restatement of Agency negates his position, and so resolves this case. Agency involves “a consensual relationship in which one person, to one degree or another or respect or another, acts as a representative of or otherwise acts on behalf of another person with power to affect the legal rights and duties of the other person.” Restatement (Third) of Agency § 1.01, cmt. c (A. L. I. 2006); see also Restatement (Second) of Agency § 12 & cmt. a (A.L.I. 1958) (“An agent or apparent agent holds a 6 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 7 of 11 power to alter the legal relations between the principal and third persons and between the principal and himself.”). The record simply provides no evidence of Austin’s ability to bind CDS, to affect or alter the legal rights and duties of the school. A corporate board member’s individual vote does not bind the corporation. As the Restatement (Second) puts it, “An individual director, as such, has still less resemblance to an agent than has the board as a body. He has no power of his own to act on the corporation’s behalf, but only as one of the body of directors acting as a board. Even when he acts as a member of the board, he does not act as an agent, but as one of a group which supervises the activities of the corporation.” Rest. (Second) § 14C cmt. b. Austin agrees, but claims he was appointed an agent of the school, a scenario the Restatement contemplates, noting that a “board may exercise its express or implied power to confer authority upon [an individual member] to act for the corporation.” Id. Austin says this happened when he was asked to raise funds and recruit families for CDS. Reply Br. at 5. That appointment, he says, vested him with apparent authority, which gives an agent power “to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Rest. (Third) § 2.03; Reply Br. at 5. But Austin did not have the power “to affect [the school’s] legal relations with third parties” just because he was asked to raise funds and recruit families. Rest. (Third) § 2.03. Apparent authority relies on “the principal’s manifestations” to third parties. Id.; see also Auvil v. Grafton Homes, Inc., 92 F.3d 226, 231 (4th Cir. 1996) (emphasizing “the 7 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 8 of 11 fundamental requirement of agency law that the agent's apparent authority flow from the principal’s conduct”). That is why it is called apparent authority; it does not matter whether the agent received an explicit grant of authority, but only whether third parties reasonably thought he did. See Sing Fuels Pte Ltd. v. M/V Lila Shanghai, 39 F.4th 263, 275–77 (4th Cir. 2022) (finding fuel broker was not agent of ship-chartering company because no reasonable belief in such agency was traceable to manifestation of ship-chartering company). CDS made no such “manifestation” to anyone when it asked Austin to recruit and raise funds. That is simply not how a trustee’s outreach function works, and not how Austin described his own duties. Trustees at an educational institution are always expected to put on a good public face, to hobnob with donors, and so forth. But that usually creates no opportunity to legally bind the institution. Austin does not say he was signing contracts or making binding commitments on behalf of the school; he was only making requests and putting on a good public face. Nor would any reasonable prospective donor even think to make a legally binding agreement with but a single board member. Austin gives no example of any poor bamboozled parent or donor who thought Austin had such power, and a “reasonably prudent person having knowledge of the usages of” boards of trustees would not be thus confused. Richmond Guano Co. v. E.I. Du Pont de Nemours & Co., 284 F. 803, 807 (4th Cir. 1922). A true apparent-authority agency situation would go well beyond Austin’s allegations. Suppose CDS put a prominent sign in front of the school, saying, “Interested in CDS? Talk to our board Members to see if you qualify for a discounted tuition rate!” 8 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 9 of 11 Then imagine a family contacted Austin and inquired about scholarships. And imagine Austin signed a contract with that family, promising a generous scholarship for their child. That contract at least comes closer to binding CDS under an apparent-authority rationale, because the big sign in front of the school would be a manifestation of Austin’s authority, made to third parties, and traceable to CDS. Nothing of the sort happened here. While Austin claims apparent authority rather than actual authority, see Reply Br. at 5, it is worth noting that the facts he alleges would not create actual authority either. Actual authority rests on the “principal's manifestations to the agent,” rather than manifestations to a third party; it is directly-delegated authority to bind the principal. Rest. (Third) § 2.01 (emphasis added). But the board as a whole never directly delegated such authority to Austin, whether by words or by conduct. Austin served on committees, but members of the relevant committees had no power to legally bind the board under the relevant bylaws. See J.A. 569 (explaining that role of Committee on Trustees was to propose nominees for membership on the board); J.A. 570–71 (explaining that Property Committee would merely “review and make recommendations” on certain property matters); Bernard v. Lea, 210 F. 583, 592 (4th Cir. 1913) (“The fact that a person is a director gives him no authority to act for the corporation, except when acting [collectively] as a member of the board, in the absence of a by-law conferring special authority upon him.”). Austin’s proposed view of agency would disrupt trustee-guided institutions across the nation. Again, hobnobbing with outside parties is usually a core part of a trustee’s work. Most trustees do that. If Austin is right about agency, most trustees automatically become 9 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 10 of 11 agents with apparent authority in their individual dealings with third parties—at least in matters related to fundraising and recruiting. That would give them more authority to bind their institutions by acting individually than by voting. They could go off and make binding promises and contracts without any vote or any board input. Or they could subject their institutions to tort liability. See Rest. (Second) § 12 cmt. a (noting that power to affect principal’s obligations may consist in power to create tort liability). An institution would be at the mercy of individual trustees. That power defeats the purpose of a corporate board, which is meant to guarantee collective decision-making. In that sense, Austin’s loose view of agency would deal a blow to the majority rule that forms part of the sinews of democratic governance. Majority rule is the norm in both the private and public sectors. Majority rule also boasts major advantages. Governing boards get to hash things out and to hear all perspectives. Majority rule leaves those who do not prevail with at least the comfort that they have been heard. It avoids the dangers of abrupt and arbitrary decisions. It is, in short, the American way of doing things, and it ensures that even the Chairwoman of the Board or the Chief Justice of the United States receives the value and benefit of varied voting voices around them. Majority rule is therefore not a principle to be casually departed from, at least not in the absence of some clear manifestation of a majority declaration which is absent from this record. Solo flights, however well-intentioned, do not grant one member the power to claim a board’s collective authority as his own. We recognize and respect the fact that board members often disagree on matters coming before them. Each side here believes it was acting not only in good faith but in the 10 USCA4 Appeal: 25-1858 Doc: 45 Filed: 10/19/2026 Pg: 11 of 11 best interest of the institution. We have no need to take sides in this dispute. What we cannot do, however, is depart from the text of the statute in a manner that would permit many of the manifold disagreements within a board to sow the seeds for a False Claims retaliation suit. The internal mistrust that would follow underscores why Congress in no way acted impermissibly in defining the contours of FCA retaliation as it did. Since Austin was no agent of CDS, he cannot claim retaliation. 31 U.S.C. § 3730(h). That is enough to affirm the district court. AFFIRMED 11