The Sixth Circuit held yesterday in Vander Boegh v. EnergySolutions, Inc. that a job applicant is not considered an “employee” under the False Claims Act and the Energy Reorganization Act, and therefore cannot avail himself of the Acts’ retaliation provisions. The plaintiff, a former landfill manager who had reported environmental violations at his prior job, alleged that defendant refused to hire him because of his earlier whistleblowing. Analyzing both statutes’ retaliation provisions thoroughly—consulting two dictionaries, a Restatement, and legislative history—the Court concluded that neither protected job applicants, who were neither employees (as required by the ERA), nor “employ[ee]-like” (as the Court found to be required by the FCA).

According to the Court, this is the first Circuit-level decision on this question. It will be interesting to see whether other circuits follow suit.