NEW ORLEANS – E I DuPont de NeMours & Co recently asked the U.S.
Court of Appeals for the Fifth Circuit to dismiss a False Claims Act-based
lawsuit filed against the company by Jeffrey M. Simoneaux.
DuPont is asking the appeals court to vacate a ruling made
by a U.S. district court denying the company’s motion for a summary judgment,
as well as to dismiss all of Simoneaux’s claims.
Simoneaux, a former DuPont safety operator, alleged that the
company retaliated against him when he filed a False Claims Act lawsuit that claimed DuPont did not report carcinogen leaks found at one of its plants in
In an appellate brief filed by DuPont on July 25,
the company said Simoneaux’s argument fails to recognize that Section 8(e) of the
Toxic Substances Control Act (TSCA) contains a reporting obligation, not an
obligation to pay or transmit money to the government.
“To this day, no fine or penalty has been imposed against
DuPont related to its alleged failure to give notice under Section 8(e),”
DuPont said. “Thus, there is not now, nor has there ever been, an obligation to
pay or transmit money to the government which DuPont could have concealed,
decreased or avoided.”
DuPont said an unassessed fine or penalty does not
constitute an obligation to pay the government money. Instead, DuPont said the
TSCA imposes an obligation on manufacturers to report certain events, which the
company said is considered under the TSCA “an activity not inherently linked to
the payment of any money to the government.”
“The mere fact that DuPont’s alleged failure to report might
result in a fine or penalty is insufficient to establish an obligation to pay,”
DuPont said in its appellate brief. “This is unequivocally true in this case
where the United States has not taken any enforcement action to assess a TSCA
In addition, DuPont said any failure to report under the
TSCA does not expose it to a statutorily established fee, but, rather, it could
open the company up to a potential penalty or fine, at the discretion of the
Environmental Protection Agency.
DuPont also said in the brief that Simoneaux mischaracterized
the company’s summary judgment argument regarding the retaliation claim. In
addition to arguing that Simoneaux “had not engaged in protected activity under
the FCA because he had not attempted to stop DuPont from submitting false or
fraudulent claims for payment to the government,” DuPont said it argued that
Simoneaux’s claim should be dismissed because he cannot prove the necessary
elements of a retaliation claim under the FCA.
To prove a retaliation claim, DuPont said Simoneaux would
need to show that he engaged in conduct protected by the FCA, that DuPont knew
that he engaged in that protected activity and that he was retaliated against
because of that protected activity.
“In opposition to DuPont’s motion for summary judgment, (Simoneaux)
did not provide evidence of an investigation of illegality or fraud,” DuPont
Rather than providing evidence of an investigation of fraud, DuPont said
Simoneaux stated that “he specifically complained that there were leaks and
that those leaks were not being reported to the EPA as required by law.”