Boegh v. EnergySolutions, Inc.

• Decision Date: 18 November 2014
• Docket Number: No. 14–5047.,14–5047.
• Citation: 772 F.3d 1056
• Parties: Gary VANDER BOEGH, Plaintiff–Appellant, v. ENERGYSOLUTIONS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

772 F.3d 1056

Gary VANDER BOEGH, Plaintiff–Appellant

v.ENERGYSOLUTIONS, INC., Defendant–Appellee.

No. 14–5047.

United States Court of Appeals, Sixth Circuit.

Argued: Sept. 30, 2014.

Decided and Filed: Nov. 18, 2014.

ARGUED:Mick G. Harrison, Bloomington, Indiana, for Appellant. Steven C. Bednar, Manning Curtis Bradshaw & Bednar LLC, Salt Lake City, Utah, for Appellee. ON BRIEF:Mick G. Harrison, Bloomington, Indiana, for Appellant. Steven C. Bednar, David C. Castleberry, Manning Curtis Bradshaw & Bednar LLC, Salt Lake City, Utah, for Appellee.

Before: McKEAGUE and GRIFFIN, Circuit Judges; POLSTER, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Gary Vander Boegh applied for a job with EnergySolutions. He alleges that the prospective employer did not hire him because he engaged in protected whistleblower activity at a prior job. The district court held that Vander Boegh lacked statutory standing as an applicant—not employee—and granted summary judgment in favor of EnergySolutions. Because we agree that Vander Boegh lacks statutory standing under the Energy Reorganization Act and False Claims Act, and we lack subject-matter jurisdiction over the remaining claims, we affirm.

I.

The U.S. Department of Energy (“DOE”) hired Vander Boegh in 1992 to work at the Paducah Gaseous Diffusion Plant (“PGDP”) as a landfill manager. In 1998, DOE awarded the PGDP contract to Bechtel Jacobs Company, LLC (“BJC”). BJC subcontracted with WESKEM for waste management services. Throughout this time, Vander Boegh continued as the landfill manager. The parties agree that Vander Boegh engaged in a range of protected activity as landfill manager, including reporting environmental violations.

In 2005, after soliciting new bids, DOE awarded the PGDP contract to Paducah Remediation Services, LLC (“PRS”). EnergySolutions provided waste management services to PRS by subcontract.¹ Beginning in January 2006, PGDP operations transitioned from BJC–WESKEM to PRS–EnergySolutions. Vander Boegh applied to be the new landfill manager, but EnergySolutions hired another candidate. In April, the transition was complete, and Vander Boegh's employment terminated.

Vander Boegh subsequently filed an employment discrimination complaint with the Department of Labor (“DOL”). He removed the action to federal district court under 42 U.S.C. § 5851(b)(4), alleging retaliation for prior protected conduct in violation of six federal statutes: The Energy Reorganization Act (“ERA”), 42 U.S.C. § 5851 (Count I); the False Claims Act (“FCA”), 31 U.S.C. § 3730(h)(1) (Count II); and the retaliation provisions of four federal environmental statutes—the Safe Drinking Water Act (“SDWA”), 42 U.S.C. § 300j–9(i) ; Clean Water Act (“CWA”), 33 U.S.C. § 1367 ; Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2622 ; and Solid Waste Disposal Act (“SWDA”), 42 U.S.C. § 6971 (Count III). The district court granted summary judgment in favor of all defendants. We affirmed the grant of summary judgment in favor of BJC and PRS but reversed with respect to EnergySolutions. Vander Boegh v. EnergySolutions, Inc., 536 Fed.Appx. 522 (6th Cir.2013). On remand, the district court again granted summary judgment in favor of EnergySolutions, this time holding that Vander Boegh lacked statutory standing because he was an applicant, not an employee. Vander Boegh timely appealed.

Vander Boegh challenges the district court's holding that he lacks statutory standing, and further argues that the district court erred in declining to reach his alternate argument that he had standing as an employee because he had a contractual right of first refusal.

II.

In this case, we consider for the first time whether the term “employee” extends to applicants for employment under the ERA, FCA, or four federal environmental statutes—the SDWA, CWA, TSCA, or SWDA. It appears that no federal court of appeals has considered these questions, although at least one has assumed, without deciding, that applicants are employees under the ERA. See Doyle v. Sec'y of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002).

We review de novo a district court's grant of summary judgment. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir.2009). “A matter requiring statutory interpretation is a question of law requiring de novo review, and the starting point for interpretation is the language of the statute itself.” Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir.2011) (internal quotation marks omitted).

Vander Boegh argues that “employee” is ambiguous, and asks this court to afford Chevron deference to the DOL's interpretation of the ERA. See Samodurov v. Gen. Physics Corp., No. 89–ERA–20, 1993 WL 832030, at *3 (Dep't of Labor Nov. 16, 1993) (interpreting “employee” in the ERA to include applicants). He further asks us to extend that interpretation to the FCA and the four environmental statutes.

“In reviewing an agency's interpretation of a statute that it is charged with administering, we apply the familiar two-step process announced by the Supreme Court in Chevron U.S.A., Inc. v. NRDC, [467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ].” Chao v. Occupational Safety & Health Review Comm'n, 540 F.3d 519, 523 (6th Cir.2008). “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. “If the intent of Congress on a matter of statutory meaning is ambiguous, however, the court is to proceed to ‘step two’ of the Chevron inquiry: whether the agency's interpretation is a ‘permissible construction of the statute.’ ” Mid–Am. Care Found. v. N.L.R.B., 148 F.3d 638, 642 (6th Cir.1998) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778 ).

“Chevron all too often is taken to mean simply that administrative agencies win in any dispute involving a question of statutory construction. Plainly, this is incorrect; both the Supreme Court and our court have made clear that there are numerous instances in which an agency's interpretation of an ambiguous statute is not entitled to the broad deference envisioned by Chevron. ” Id. “An agency's interpretation is not entitled to Chevron deference, for example, if the apparent statutory ambiguity can be resolved using ‘traditional tools of statutory construction.’ ” Id. (citing INS v. Cardoza–Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ). “[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what is says there.” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). “When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Id. (internal quotation marks omitted).

A.

Vander Boegh first disputes the district court's conclusion that he lacks statutory standing under the ERA. The threshold question is whether “employee” is ambiguous. The ERA provides that “[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment” because the employee engaged in an activity protected by the statute. 42 U.S.C. § 5851(a)(1). Although the ERA defines the term “employer,” it does not define “employee.” Id. § 5851(a)(2). Nor do the relevant regulations define “employee.” See 29 C.F.R. §§ 24.100 –05.

Where no statutory definition exists, a court may consult a dictionary definition for guidance in discerning the plain meaning of a statute's language. See, e.g., Nat'l Cotton Council of Am. v. U.S. E.P.A., 553 F.3d 927, 937 (6th Cir.2009). An “employee” is “[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.” Black's Law Dictionary 639 (10th ed.2014). An “employee” is also commonly defined as “[a] person working for another person or a business firm for pay.” Random House Webster's Unabridged Dictionary 638 (2001).

Applied to this case, the plain meaning of “employee” does not plausibly extend to Vander Boegh because he never worked for EnergySolutions. As a mere applicant, he was not an “employee” under the plain language.Cf. Old Colony R.R. Co. v. Comm'r of Internal Revenue, 284 U.S. 552, 560, 52 S.Ct. 211, 76 L.Ed. 484 (1932) (“[T]he plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”).

Moreover, the statutory text itself demonstrates that Congress knew how to define “employee” to include applicants, if it had so intended. In the ERA, Congress defined “employer” to include seven categories of covered employers, including “an applicant for a [Nuclear Regulatory Commission] license.” 42 U.S.C. § 5851(a)(2)(B) (emphasis added). Although it explicitly defined “employer” to include an “applicant,” Congress nonetheless omitted any definition of “employee.” This omission further supports that Congress did not intend “employee” to include applicants. See, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted).

The plain meaning alone is sufficient to end the inquiry. However, the Supreme Court has also instructed us on how to interpret “employee” when Congress does not define it. “It is ... well...