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

Filing 66

RULING denying 48 Motion for Certification of Judgment for Interlocutory Appeal. Signed by Judge Shelly D. Dick on 09/02/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JEFFREY M. SIMONEAUX

CIVIL DOCKET NUMBER

VERSUS

12-219-SDD-SCR

E.I. du PONT de NEMOURS & COMPANY

RULING
This matter is before the Court on a Motion for Certification of Judgment
for Interlocutory Appeal1 filed by Defendant, E.I. du Pont de Nemours and
Company (DuPont). Plaintiff and Relator, Jeffrey M. Simoneaux, has filed an
Opposition to the motion.2 After reviewing the memoranda of the parties and the
applicable law, DuPont’s Motion for Certification of Judgment for Interlocutory
Appeal shall be denied.
I.

BACKGROUND
Simoneaux, a former employee of DuPont’s Burnside, Louisiana facility,

initiated this lawsuit against DuPont under the qui tam provision of the False
Claims Act (FCA).

The FCA “covers all fraudulent attempts to cause the

government to pay out sums of money.”3 As part of the Fraud Enforcement and
Recovery Act of 2009 (FERA), the FCA was amended.

Pursuant to these

1

Rec. Doc. 48.
Rec. Doc. 49.
3
Abbott v. BP Exploration and Production Inc., 781 F.Supp.2d 453, 461 (S.D.Tx. 2011)(quoting U.S. v.
Neifert-White Co., 390 U.S. 228, 233 (1968)). “The FCA does this by making it unlawful for a person to
knowingly present or cause to be presented to the government ‘a false claim for payment or approval.’”
U.S. v. HCA Health Services of Oklahoma, Inc., 2011 WL 4590791, at *5 (N.D.Tx. Sept. 30, 2011). 
2

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amendments, Simoneaux has claimed that DuPont failed to comply with its
obligation under 15 U.S.C. § 2607 of the Toxic Substances Control Act (TSCA) to
report the release of sulfur trioxide gas (SO3) at its Burnside Plant to the
Environmental Protection Agency (EPA).4

Failure to provide such notice is

unlawful, 15 U.S.C. § 2614, and invokes a mandatory penalty up to $37,500 for
each violation, 15 U.S.C. §2615(a)(1).
Ultimately, DuPont filed a Motion for Summary Judgment seeking
dismissal of Simoneaux’s reverse false claim cause of action as a matter of law.
DuPont argued that because the payment of statutory penalties under the TSCA
is not mandatory, and is contingent on an order by the EPA Administrator,
Simoneaux could not satisfy the FCA’s obligation requirement necessary to
establish a prima facie case.

On April 4, 2014, after reviewing the relevant

memoranda and considering oral argument, the Court denied DuPont’s motion.5
The Court concluded that the 2009 amendments had changed the meaning of
obligation within the FCA by providing a statutory definition for this term, which
could apply to regulations, such as the TSCA.

Strictly construing this new

statutory language, the Court found that because the TSCA gives rise to an
obligation to report chemical leaks, and failure to do so will result in the

4

Pursuant to 15 U.S.C. § 2607, any person who manufactures, processes, or distributes a chemical
substance in commerce and who obtains information that reasonably supports the conclusion that such
substance presents a substantial risk of injury to health or to the environment shall immediately inform the
Administrator of the EPA of such information.
5
Rec. Doc. 27. Simoneaux had filed an opposition to DuPont’s motion, to which DuPont filed a reply brief.
Rec. Doc. 38 and Rec. Doc. 42, respectively. On April 4, 2014, after both parties presented oral
argument, the Court issued oral reasons for denying DuPont’s Motion for Summary Judgment. Rec. Doc.
47.

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imposition of a fine or penalty, whether fixed or not, the 2009 Congressional
definition of obligation was satisfied; therefore, the Court denied DuPont’s
summary judgment motion.

DuPont now seeks certification of the Court’s April

4, 2014 Ruling pursuant to 28 U.S.C. §1292.6
II.

SECTION 1292(B) STANDARD
28 U.S.C. §1292(b) governs the certification of interlocutory orders for

appeal.

According to the Fifth Circuit, “[t]he purpose of § 1292(b) is to provide

for an interlocutory appeal in those exceptional cases where the order in question
‘involves a controlling question of law as to which there is substantial ground for
difference of opinion and [where] an immediate appeal from the order may
materially advance the ultimate termination of the litigation.’”7 Hence, “[i]n order
to certify an issue for appeal, the appealable issue must involve: ‘(1) a controlling
issue of law; (2) a substantial ground for a difference of opinion; and (3) a
question whose immediate appeal from the order will materially advance the
ultimate termination of the litigation.’”8

“The burden of demonstrating the

necessity of an interlocutory appeal is on the moving party.”9
III.

ANALYSIS
Of the three prongs that DuPont must satisfy to demonstrate the necessity

of an interlocutory appeal, the Court finds that the second prong--demonstrating

6

Rec. Doc. 48. 
U.S. v. Garner, 749 F.2d 281, 286 (5th Cir. 1985) (quoting 28 U.S.C. § 1292(b)).
8
Warder v. Shaw Group, Inc., 2014 WL 3700920, at *2(E.D.La. July 24, 2014)(quoting Gulf Coast
Facilities Mgmt., LLC v. BG LNG Servs., LLC, 730 F.Supp.2d 552, 565 (E.D.La 2010) aff’d sub nom. Gulf
Coast Facilities Mgmt., L.L.C. v. BG LNG Servs., L.L.C., 428 F.App’x 318 (5th Cir. 2011)).
9
In re L.L.P. & D. Marine, Inc., 1998 WL 66100, at *1 (citing Orson, Inc. v. Miramax Film Corp., 867
F.Supp. 319, 320 (E.D.Pa. 1994), aff’d in part, vacated in part on other grounds, 79 F.3d 1358 (1996)).
7

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a substantial ground for difference of opinion--creates a hurdle that DuPont
simply cannot clear. Citing to a Northern District of Georgia decision, DuPont
states that “substantial ground for difference of opinion is satisfied when (1) the
issue is difficult and of first impression, (2) a difference of opinion as to the issue
exists within the controlling circuit; and (3) the circuits are split on the issue.”10
Because the Fifth Circuit has yet to determine how the 2009 amendments to the
FCA should be interpreted, it is DuPont’s contention that this is a legal issue of
first impression, which makes this Court’s ruling suitable for certification.
The provision of the FCA that established violations referred to as a
“reverse false claim” was recodified in 2009 as 31 U.S.C. §3729(a)(1)(G), and
imposes liability on any person who:
knowingly makes, uses, or causes to be made or used, a false
record or statement material to an obligation to pay or transmit
money or property to the Government, or knowingly conceals or
knowingly and improperly avoids or decreases an obligation to pay
or transmit money or property to the Government….
As part of these amendments, Congress also enacted a statutory definition for
the term “obligation,” where one had never existed before. An obligation is now
defined as “an established duty, whether or not fixed, arising from an express or
implied contractual, grantor-grantee, or licensor-licensee relationship, from a feebased or similar relationship, from statute or regulation, or from the retention of
any overpayment.”11

10

Georgia State Conference of the NAACP v. Fayette County Board of Comm’rs., 952 F.Supp.2d 1360,
1362 (N.D.Ga. 2013). 
11
31 U.S.C. § 3729(b)(3).

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Standing alone, the fact that this Court is the first to rule on the proper
interpretation of the 2009 amendments to the FCA “does not qualify the issue as
one over which there is substantial disagreement.”12 Moreover, the Court finds
that while this may be a case of first impression, it is not a difficult issue that
would justify certification, a point that DuPont fails to address in its memorandum.
In fact, this Court found the plain, straightforward language of 31 U.S.C.
§3729(a)(1)(G) and 31 U.S.C. §3729(b)(3) to be clear and unambiguous. Based
on such a finding, the Court explained that it would be improper to consider the
legislative history of the 2009 amendments, and further declined invoking its own
policy considerations. As for the Fifth Circuit jurisprudence relied on by DuPont,
the Court found it was non-binding case precedent because the cases preceded
the 2009 legislative changes to the FCA.
As this Court has recently explained, “[d]isagreement with the district
court’s ruling is insufficient to establish a substantial ground for a difference of
opinion.”13 Rather, “‘substantial ground for difference of opinion’ usually only
arises out of a genuine doubt as to the correct applicable legal standard relied on
in the order.”14

Here, the Court applied the correct standards of statutory

interpretation to the 2009 amendments of the FCA. The Court further finds that

12

In re Central Louisiana Grain Co-op, Inc., 489 B.R. 403, 412 (W.D.La. 2013)(quoting Ryan v. Flowserve
Corp., 444 F.Supp.2d 718, at 724 (N.D. Tex. 2006)); Mosaic Underwriting Service, Inc. v. Moncla Marine
Operations, L.L.C., 2013 WL 2903083, at *9 (E.D.La. June 12, 2013)(quoting Ryan v. Flowserve Corp.,
444 F.Supp.2d 718, at 724 (N.D. Tex. 2006)). 
13
U.S. v. Louisiana Generating LLC, 2012 WL 4588437, at *2 (M.D.La. Oct. 2, 2012). See also, Property
One, Inc. v. USAgencies, L.L.C., 830 F.Supp.2d 170, 182 (M.D.La. 2011)(“Mere disagreement, even if
vehement, with a ruling does not establish substantial ground for difference of opinion.”).
14
Property One, Inc. v. USAgencies, L.L.C., 830 F.Supp.2d 170, 182-83 (M.D.La. 2011).

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DuPont has failed to demonstrate how there is a substantial ground for difference
of opinion as to the Court’s Ruling. Because DuPont has failed to satisfy the
second prong necessary for certification, DuPont’s motion shall be denied.
IV.

CONCLUSION
For the foregoing reasons, E.I. du Pont de Nemours and Company’s

Motion for Certification of Judgment for Interlocutory Appeal is hereby DENIED.15
Signed in Baton Rouge, Louisiana, on September 2, 2014.

S

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

15

Rec. Doc. 48.

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