WRITTEN REASONS FOR RULING

SHELLY D. DICK, District Judge.

On January 11, 2015, Defendant, E.I. du Pont de Nemours and Company ("DuPont"), filed a Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction.1 The parties presented oral argument on DuPont's Motion on January 12, 2015, prior to the start of the trial in this matter. For the reasons orally assigned and the following reasons, DuPont's Motion is DENIED.

In its Motion, DuPont argued that the Sixth Circuit decision of Boegh v. EnergySolutions, Inc.,2 rendered in November of 2014, supported its position that the Court lacks subject matter jurisdiction over Simoneaux's claims. In Boegh, the appellate court addressed whether a non-employee applicant had standing to bring retaliation claims under various statutes, including the False Claims Act (FCA) and the Toxic Substances Control Act (TSCA). The Boegh court found that the plaintiff lacked standing to assert his retaliation claim under the FCA. In reaching its decision, the court found that the term employee under the FCA did not include non-employee applicants. In this case, it is undisputed that, at all relevant times, the Plaintiff/Relator was an employee of Defendant, DuPont.3 Having concluded that the non-employee plaintiff in Boegh lacked standing to bring an action pursuant to the FCA, the court addressed whether it had subject matter jurisdiction to hear the plaintiff's retaliation or "whistleblower" claims under the TSCA. The Sixth Circuit concluded that the TSCA4 "provide[s] an exclusive set of remedies: administrative review in the DOL, followed by judicial review of a final agency order in the Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation."5 In light of the specific statutory scheme for administrative review of agency actions, in combination with a void in the TSCA's legislative history indicating Congress' intent that claimants have concurrent review in district courts, the Boegh court found that a claimant lacks standing to assert a claim under the retaliation provision of the TSCA directly in federal district court.

Although Boegh stands for the proposition that the plaintiff lacks standing to bring a retaliation claim in district court directly under the TSCA, the Plaintiff in this case has not asserted a retaliation claim under the TSCA. Rather, Plaintiff in this case asserts retaliation under the FCA.6 Specifically, Plaintiff alleges that his former employer, DuPont, violated reporting obligations under the TSCA, thereby avoiding regulatory fines. It is the alleged avoidance of regulatory penalties that gives rise to Plaintiff's FCA qui tam action and his retaliation claim under the FCA. Considering these fundamental distinctions, the Court finds that the Boegh case is distinguishable from the pending matter and does not support a finding that the Court lacks subject matter jurisdiction over Simoneaux's FCA claims.

Accordingly, DuPont's Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction7 is hereby DENIED.