This week, the U.S. Court of Appeals for the Sixth Circuit ruled that a job applicant lacks standing to bring whistle-blower claims under the Energy Reorganization Act and the False Claims Act (“FCA”) because those laws’ retaliation provisions apply only to employees.  The Sixth Circuit is the first Court of Appeals to address this issue.

The plaintiff, Gary Vander Boegh (“Plaintiff”), is a former landfill manager in Kentucky who alleged that defendant Energy Solutions, Inc. (“Energy Solutions”) did not hire him because he reported certain environmental violations to his previous employer, the U.S. Department of Energy’s Paducah Gaseous Diffusion Plant.  Plaintiff alleged that Energy Solutions’ failure to hire him was unlawful retaliation because he engaged in protected whistleblowing activity at his prior job.

The United States District Court for the Western District of Kentucky dismissed each of Plaintiff’s claims in December 2013.  Affirming the district court’s grant of summary judgment for Energy Solutions Inc., the Sixth Circuit found that Plaintiff did not fall within either the “plain” or “common law” meanings of the term “employee” because his relationship to Energy Solutions was that of a “mere applicant.”  In reaching this conclusion, the Sixth Circuit consulted various dictionaries, the Second Restatement of Agency, and the legislative history of the FCA and the Energy Reorganization Act.  As the Sixth Circuit noted, Plaintiff never performed work for Energy Solutions for compensation, nor was he at any point under Energy Solutions’ control.

The Sixth Circuit also affirmed the district court’s dismissal of Plaintiff’s whistleblower claims under the Safe Drinking Water Act, the Clean Water Act, the Toxic Substances Control Act and the Solid Waste Disposal Act on the grounds that Plaintiff did not fully exhaust his administrative remedies for those claims before filing his lawsuit.