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United Statesr v. Terrapower, LLC

United States District Court, D. Idaho

December 6, 2019

THE UNITED STATES OF AMERICA, ex rel. DOUGLAS V. TOOMER, Plaintiff,
v.
TERRAPOWER, LLC; BATTELLE ENERGY ALLIANCE, LLC; Defendants.

          MEMORANDUM DECISION AND ORDER

          David C. Nye Chief U.S. District Court Judge

         I. INTRODUCTION

         Pending before the Court is Relator Douglas V. Toomer's Motion for Permission to Petition for an Interlocutory Appeal (28 U.S.C. § 1292(b)). Dkt. 75. Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons set forth below, the Court DENIES Relator's Motion.

         II. BACKGROUND

         On June 6, 2016, Douglas Toomer, an individual, filed a complaint against Defendants TerraPower, LLC (“TerraPower”) and Battelle Energy Alliance, LLC (“BEA”) (collectively “Defendants”) on behalf of the United States' Government. He then filed an Amended Complaint in February 2017, asserting eight claims: (1) presentation of false claims in violation of the False Claims Act (“FCA”); (2) making or using false records or statements in violation of the FCA; (3) failure to deliver possession of property in violation of the FCA; (4) concealing or avoiding obligations to the Government in violation of the FCA; (5) conspiring to commit violations of the FCA; (6) declaratory judgment; (7) unjust enrichment/mistake of fact; and (8) unlawful employment retaliation.

         The FCA does not permit a realtor to serve a complaint on the defendants until the Government decides whether it wishes to intervene or to allow the relator who originally filed the case to proceed with the litigation on the Government's behalf. Thus, Toomer, as the “relator” in the suit, originally only served the Complaint on the Government.

         On November 11, 2017, the Government elected to move for dismissal, rather than allow the litigation to proceed in its name. However, the Government did not formally intervene in the case under 31 U.S.C. § 3730(c)(3) prior to moving for dismissal.

         On October 10, 2018, the Court granted the Government's motion to dismiss of all of Toomer's claims except for his unlawful employment retaliation claim. Dkt. 40.

         On November 7, 2018, Toomer filed a motion for the Court to reconsider its October 10, 2018 order. Dkt. 52. On March 5, 2019, the Court denied his motion. Dkt. 70. The Court treated Toomer's motion to reconsider as a motion to alter or amend under Federal Rule of Civil Procedure 59(e). There are four grounds upon which the Court could grant a motion for reconsideration: “(1) the motion is necessary to correct manifest errors of fact or law; (2) the moving party presents newly discovered evidence; (3) reconsideration is necessary to prevent manifest injustice; or (4) there is an intervening change in the law.” Dkt. 70, at 8 (internal quotation marks and citations omitted). As the Court found that Toomer had not “provided any facts or arguments that warrant reconsideration” under that standard, it denied Toomer's motion. Dkt. 70, at 9.

         Six month later, on September 12, 2019, Toomer filed the pending motion for permission to petition for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Toomer seeks to appeal the Court's October 10, 2018 Order dismissing seven of his claims and its March 5, 2019 Order denying his motion to reconsider (collectively, “Orders”). Dkt. 75.

         III. STANDING

         In Toomer's reply, he raised for the first time the argument that Defendants lacked standing to respond to his motion to file an interlocutory appeal. Citing to no caselaw, he briefly stated that since “neither TerraPower nor BEA were parties to the Government's motion for dismissal, the defendants have no real standing to provide argument on this issue.” Dkt. 79, at 4. Toomer grossly misunderstands the standing doctrine.

         The role of the courts is “neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies.” Maldonado v. Morales, 556 F.3d 1037, 1044 (9th Cir. 2009) (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc)). Courts, therefore, assess the parties' standing before proceeding to the merits of their dispute. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008). To establish Article III standing, a plaintiff must show that “it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, ” that “the injury is fairly traceable to the challenged action of the defendant, ” and that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir. 2006) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).

         Defendants' rights are concretely and actually affected by whether Toomer's case against them will be dismissed. The fact that they were not party to the Government's motion to dismiss does not change that. As Toomer himself made the Defendants party to the case at large and the entire case concerns Defendants' interests and liability, Defendants have the right to provide argument on whether the Court should grant Toomer's ...


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