Simoneaux et al v. E.I. du Pont de Nemours & Company

Filing 164

WRITTEN REASONS FOR RULING denying 163 Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by Judge Shelly D. Dick on 1/13/2015. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA,
ET AL., JEFFREY M. SIMONEAUX,
RELATOR

CIVIL ACTION

VERSUS

NUMBER 12-219-SDD-SCR

E.I. du PONT de NEMOURS AND COMPANY

WRITTEN REASONS FOR RULING

On January 11, 2015, Defendant, E.I. du Pont de Nemours and Company
(“DuPont”), filed a Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter
Jurisdiction.1 The parties presented oral argument on DuPont’s Motion on January 12,
2015, prior to the start of the trial in this matter. For the reasons orally assigned and the
following reasons, DuPont’s Motion is DENIED.
In its Motion, DuPont argued that the Sixth Circuit decision of Boegh v.
EnergySolutions, Inc.,2 rendered in November of 2014, supported its position that the
Court lacks subject matter jurisdiction over Simoneaux’s claims.

In Boegh, the

appellate court addressed whether a non-employee applicant had standing to bring
retaliation claims under various statutes, including the False Claims Act (FCA) and the
Toxic Substances Control Act (TSCA). The Boegh court found that the plaintiff lacked
standing to assert his retaliation claim under the FCA. In reaching its decision, the court
found that the term employee under the FCA did not include non-employee applicants.
In this case, it is undisputed that, at all relevant times, the Plaintiff/Relator was an
1
2

Rec. Doc. 163.
772 F.3d 1056 (6th Cir. 2014).
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employee of Defendant, DuPont.3 Having concluded that the non-employee plaintiff in
Boegh lacked standing to bring an action pursuant to the FCA, the court addressed
whether it had subject matter jurisdiction to hear the plaintiff’s retaliation or
“whistleblower” claims under the TSCA. The Sixth Circuit concluded that the TSCA4
“provide[s] an exclusive set of remedies: administrative review in the DOL, followed by
judicial review of a final agency order in the Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant resided on the date of
the violation.”5 In light of the specific statutory scheme for administrative review of
agency actions, in combination with a void in the TSCA’s legislative history indicating
Congress’ intent that claimants have concurrent review in district courts, the Boegh
court found that a claimant lacks standing to assert a claim under the retaliation
provision of the TSCA directly in federal district court.
Although Boegh stands for the proposition that the plaintiff lacks standing to bring
a retaliation claim in district court directly under the TSCA, the Plaintiff in this case has
not asserted a retaliation claim under the TSCA. Rather, Plaintiff in this case asserts
retaliation under the FCA.6

Specifically, Plaintiff alleges that his former employer,

DuPont, violated reporting obligations under the TSCA, thereby avoiding regulatory
fines. It is the alleged avoidance of regulatory penalties that gives rise to Plaintiff’s FCA

3

Congress expressly authorized False Claims Act suits by private individuals. 31 U.S.C. § 3730(b).
Congress also expressly created a private cause of action by “[a]ny employee, contractor, or agent . . .
who is discharged, demoted, suspended, threatened, harassed or in any other manner discriminated
against in the terms and conditions of employment because of because of lawful acts done by the
employee, contractor, agent or associated others in furtherance of an action under this section or other
efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1).
4
In addition to the TSCA, the Boegh court’s reasoning also applied to three other environmental statutes-the Safe Drinking Water Act, Clean Water Act, and Solid Waste Disposal Act--which are not at issue in
the pending matter.
5
772 F.3d at 1065.
6
31 U.S.C. § 3730(h)(1), cited at note 3 supra.
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qui tam action and his retaliation claim under the FCA. Considering these fundamental
distinctions, the Court finds that the Boegh case is distinguishable from the pending
matter and does not support a finding that the Court lacks subject matter jurisdiction
over Simoneaux’s FCA claims.
Accordingly, DuPont’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter
Jurisdiction7 is hereby DENIED.
Signed in Baton Rouge, Louisiana, on January 13, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

7

Rec. Doc. 163.
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