Wednesday, November 19, 2014
Is an anti-retaliation case brought by an environmental whistleblower an environmental law case? On November 18, the Sixth Circuit (McKeague, Griffin, Polster (by designation)) issued a decision in Vander Boegh v. EnergySolutions, Inc. Vander Boegh worked as a landfill manager at the Department of Energy’s Paducah Gaseous Diffusion Plant, during which time he reported environmental violations. When EnergySolutions took over the waste management services subcontract for the Plant, it did not hire Vander Boegh. Vander Boegh sued EnergySolutions, alleging that it was retaliating against him in violation of the Energy Reorganization Act, 42 U.S.C. § 5851; False Claims Act, 31 U.S.C. § 3730(h)(1); Safe Drinking Water Act, 42 U.S.C. § 300j–9(i); Clean Water Act, 33 U.S.C. § 1367; Toxic Substances Control Act, 15 U.S.C. § 2622; and Solid Waste Disposal Act, 42 U.S.C. § 6971. The Sixth Circuit held that Vander Boegh could not sue under the anti-retaliation provisions of the Energy Reorganization Act or False Claims Act, both of which prohibit retaliation against “any employee,” because a job applicant is not an employee. With respect to Vander Boegh’s claims under the environmental statutes, the court held that their anti-retaliation provisions do not grant jurisdiction to the federal district courts to hear retaliation claims. Instead, claimants must seek administrative review with the Department of Labor, and then may pursue judicial review of the Department’s order if it is adverse.