Chang v. Children's Advocacy Center of Delaware
Filing
83
MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 7/27/2020. (kmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA and
STATE OF DELAWARE ex rel. WEIH
CHANG,
Plaintiffs,
v.
CHILDREN’S ADVOCACY CENTER OF
DELAWARE,
Defendant.
)
)
)
)
)
)
) C.A. No. 15-442(MN)
)
)
)
)
)
MEMORANDUM OPINION
Weih Chang – Pro Se Plaintiff
Thomas J. Gerard, Jack L. Gruenstein, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN,
Wilmington, DE – Attorneys for Children’s Advocacy Center of Delaware
Kathleen Jennings, State of Delaware, Edward K. Black, Deputy Attorney General, Wilmington,
DE – Attorneys for State of Delaware
David c. Weiss, United States Attorney, Dylan J. Steinberg, Assistant United States Attorney –
Wilmington, DE – Attorneys for the United States of America
Edward Scot Husbands – Pro Se Movant
July 27, 2020
Wilmington, Delaware
1
NOREIKA, U.S. DISTRICT JUDGE
On June 1, 2015, Plaintiffs United States of America and State of Delaware, ex rel. Weih
Steve Chang (“Chang”) filed this qui tam action pursuant to the Federal False Claims Act,
31 U.S.C. § 3729, et seq., and the Delaware False Claims and Reporting Act, 6 Del. C. § 1201, et
seq., against Defendant Children’s Advocacy Center of Delaware (“CAC”). (D.I. 2). When
Chang filed the action, the case was assigned to United States District Court Judge Gregory M.
Sleet, who retired from the bench on September 28, 2019. Chang was represented by counsel
when he commenced this action.
I.
BACKGROUND
On March 3, 2016, the United States declined to intervene in the civil action, but Chang
was permitted to continue the civil case in the name of the United States pursuant to 31 U.S.C.
§ 3730. (D.I. 10 at 1). On April 21, 2016, the State of Delaware also declined to intervene.
(D.I. 14).
On April 23, 2018, Chang’s attorney filed a motion to withdraw as counsel. The
motion was denied without prejudice to renew. (D.I. 51).
On May 14, 2018, the Court granted motions to dismiss filed by the United States and the
State of Delaware. (D.I. 56, D. I. 57). On June 12, 2018, Chang filed a pro se notice of appeal.
(D.I. 64). Chang also filed several motions pro se, including a request for this Court to reconsider
its dismissal, a motion to require Chang’s attorneys to continue their legal representation, a motion
for leave to file a second amended complaint, and a motion for the joinder of Edward Scot
Husbands. (D.I. 58, D.I. 59, D.I. 60, D.I. 62). Chang’s attorneys renewed their motion to
withdraw on June 12, 2018 and CAC moved to strike the pro se motions filed by Chang. (D.I. 63,
D.I. 65). On June 18, 2018, the Court denied the motion for reconsideration, granted in part and
1
denied in part the motion to strike, struck the motions at Docket Items 59, 60, 61, and 62, and
granted the renewed motion to withdraw as counsel. (See D.I. 67, D.I. 68).
While the appeal was pending, Chang filed a motion to vacate asking the Court “to
withdraw its previous orders or judgements . . . due to an undisclosed and disqualifying conflict of
interest of former Chief Judge Gregory M. Sleet.” (D.I. 70 at 1). The case was reassigned to me
on July 17, 2019. On July 29, 2019, the motion to vacate was denied for lack of jurisdiction.
(D.I. 74). On September 19, 2019, the United States Court of Appeals for the Third Circuit
affirmed the decisions and orders of Judge Sleet granting the motions to dismiss. 1 (See D.I. 752). On September 12, 2019, the Third Circuit denied as moot Chang’s motion to stay appeal, for
partial remand of bringing the issue of conflict of interest before the District Court. (See D.I. 772 at 15). On December 20, 2019, the Third Circuit denied Chang’s petition for a rehearing en
banc. 2
On January 24, 2020, Chang filed a motion for leave to refile the motion to vacate on the
grounds that this Court had a duty to enforce 28 U.S.C. § 455 and has the power to do this under
the All Writs Act, 28 U.S.C. § 1651(a), and more specifically coram nobis. (D.I. 76 at 1). Chang
states that for “federal civil cases Congress restructured the writ of coram nobis relief into Rule 60
1
The mandate issued October 4, 2019. (D.I. 75 at 2).
2
On March 26, 2020 Chang filed a petition for writ of certiorari before the United States
Supreme Court, Case No. 19-1312 that was placed on the Supreme Court docket on
May 22, 2020. The matter has been distributed for the September 29, 2020 Conference.
Although the timely filing of a notice of appeal generally divests the district court of
jurisdiction over matters involved in the appeal, see Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982), Chang’s petition for a writ of certiorari filed with
the United States Supreme Court does not automatically divest this court of jurisdiction
over this case because it is not a notice of appeal and it is not yet known whether the Court
will grant the petition. See Barbato v. Crown Asset Mgmt. LLC, No. CV 3:13-2748, 2019
WL 1922083, at *1 (M.D. Pa. Apr. 30, 2019) (citations omitted).
2
of the Federal Rules of Civil Procedure.” 3
(Id.). The Court construes the motion as one seeking
relief under Fed. R. Civ. P. 60(b). Edward Scot Husbands (“Husbands”) 4 moves to join the
motion for leave to refile the motion vacate the judgment of the Court. (D.I. 81). CAC, the State
of Delaware, and the United States oppose the renewed motion to vacate. (D.I. 77, D.I. 78,
D.I. 80).
II.
PROCEEDING PRO SE
Chang’s attorneys have withdrawn from this case, he has not retained counsel, and he
proceeds pro se. When a relator files a qui tam suit, the action is deemed to be brought “for the
person and for the United States Government.” 31 U.S.C. § 3730(b)(1). “[W]hile the False
Claims Act permits relators to control the False Claims Act litigation, the claim itself belongs to
the United States.” U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008). Here,
the United States declined to intervene and moved to dismiss the case.
The Third Circuit has held that held that an individual proceeding pro se may not represent
third parties in federal court. See Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir. 2010); see also
28 U.S.C. § 1654 (1982) (providing that in federal court, “parties may plead and conduct their own
cases personally or by counsel . . . . ”). Accordingly, a pro se litigant may not pursue a qui tam
action on behalf of the Government in the absence of any personal interest or injury to vindicate
on account of CAC’s alleged actions. See Downey v. United States, 2020 WL 3119070, at *1
(3d Cir. June 11, 2020). Chang alleged that the CAC “had applied for and received funding from
the state and federal governments by misrepresenting certain material information.” See Chang
3
The writ of coram nobis was abolished in civil cases by Fed. R. Civ. P. 60(b). See Fed.
R. Civ. P. 60(e); Green v. White, 319 F.3d 560, 563 n.1 (3d Cir. 2003).
4
Husbands’ first motion to join was stricken by the Court upon motion. (See D.I. 62, 65,
68).
3
v. Children’s Advocacy Ctr. of Delaware, 938 F.3d 384, 386 (3d Cir. 2019). Chang, as a relator,
however, may not proceed pro se. See Gunn v. Credit Suisse Group AG, 610 F . App’x 155,
(3d Cir. 2015). He must be represented by counsel. He is not and, therefore, lacks standing to
prosecute this matter on behalf of the government.
Chang indicates that he seeks relief under Rule 60(b)(6). (See D.I. 82). Even were Chang
allowed to proceed pro se, Rule 60(b) relief is not warranted.
III.
LEGAL STANDARDS
Rule 60(b) provides that a party may file a motion for relief from a final judgment for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence, that with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reserved
or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). A motion filed pursuant to Rule 60(b) is addressed to the sound discretion
of the trial court guided by accepted legal principles applied in light of all relevant circumstances.
Pierce Assoc., Inc. v. Nemours Found., 865 F.2d 530, 548 (3d Cir. 1988). A motion filed under
Rule 60(b) must be made within a reasonable time and, for motions under Rule 60(b)(1), (2), and
(3), must be filed no more than one year after entry of the judgment or order or the date of the
proceeding. See Fed. R. Civ. P. 60(c)(1).
4
IV.
DISCUSSION
Chang moves the Court to refile a motion to vacate on the grounds that there is a “clear
judicial conflict of interest which violates 28 U.S.C. § 455.” (D.I. 76, D.I. 82). Chang contends
that Judge Sleet’s decade long tenure with Delaware’s Criminal Justice Council constituted, not
only the appearance of conflict but, an actual conflict of interest under the “extrajudicial source
doctrine.” (D.I. 82 at 2). The Delaware Criminal Justice Council is an independent body
committed to leading the criminal justice system through a collaborative approach that calls upon
the experience and creativity of the Council, all components of the criminal justice system and the
community. See https://cjc.delaware.gov/ (last visited July 27, 2020). Chang also argues that
Judge Sleet’s orders enabled a breach of contract and legal malpractice by his counsel of record
when his attorney left one law firm, moved to another law firm, and then moved to withdraw as
counsel. The motion to withdraw was denied, and Chang continued to be represented by counsel.
Chang alleges that his attorney lost interest and failed to request a hearing on the governments’
motions to dismiss. Finally, Chang argues that an attorney representing the United States had a
conflict of interest.
Rule 60(b)(6) “is a catch-all provision that allows relief for any reason justifying relief
from the operation of the judgment.” United States v. Witco Corp., 76 F. Supp. 2d 519, 527
(D. Del. 1999). It is within the sound discretion of the trial court to grant or deny relief under this
section. Lasky v. Continental Products Corp., 804 F.2d 250, 256 (3d Cir. 1986).
The Third Circuit “has consistently held that the Rule 60(b)(6) ground for relief from
judgment provides for extraordinary relief and may only be invoked upon a showing of exceptional
circumstances.” Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002) (internal
citations and quotations omitted); see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (“[O]ur
5
cases have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary
circumstances’ justifying the reopening of a final judgment.”). Rule 60(b)(6) generally requires
the movant to make “a more compelling showing of inequity or hardship” than would normally be
required to reopen a case under any one of the first five subsections of Rule 60(b). Project Mgmt.
Inst., Inc. v. Ireland, 144 F. App’x 935 n.1 (3d Cir. 2005).
In his motion, Chang alleges that Judge Sleet should have recused himself pursuant to
28 U.S.C. § 455(a), which provides that “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). A party seeking recusal need not demonstrate that the judge is
actually biased, but rather that he would appear to be biased to “a reasonable person, with
knowledge of all the facts.” United States v. Wecht, 484 F.3d 194, 213 (3d Cir. 2007) (quoting In
re Kensington Int’l Ltd., 353 F.3d 211, 220 (3d Cir. 2003)). A recusal motion must be based on
“objective facts,” not mere “possibilities” and “unsubstantiated allegations.” United States v.
Martorano, 866 F.2d 62, 68 (3d Cir. 1989).
The facts of this case are similar to one decided by the United States Supreme Court in
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 850-51 (1988), in which the Supreme
Court considered the issue of whether relief under Rule 60(b)(6) was appropriate where a party
learned of a judge’s potential conflict of interest almost a year after the Court of Appeals affirmed
the District Court’s judgment. The Supreme Court held relief under Rule 60(b)(6) was “neither
categorically available nor categorically unavailable” for violations of subsection 455(a), and
identified three factors for the Court to consider in determining whether 60(b)(6) relief is available:
“the risk of injustice to the parties in the particular case, the risk that the denial of relief will
produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial
6
process.” Id. at 864. Of note is “that [the] harmless error analysis can apply to violations of
§ 455(a).” U.S. ex rel. Pritsker v. Sodexho, Inc., 493 F. App’x 309, 311-12 (3d Cir. 2012) (quoting
Shell Oil Co. v. United States, 672 F.3d 1283, 1292 (Fed. Cir. 2012)).
Chang has not shown that Rule 60(b)(6) relief is appropriate. Judges serve on numerous
committees and councils and “a reasonable person, with knowledge of all the facts” would not
question a judge’s impartiality based upon that service.
Moreover, Chang’s assertions of
impartiality are speculative and not based upon objective facts.
In addition, any purported violation of § 455(a) was harmless because the United States
Court of Appeals for the Third Circuit affirmed on appeal Judge Sleet’s legal determination to
grant Defendants’ motions to dismiss on the merits. See U.S. ex rel. Pritsker v. Sodexho, Inc.,
493 F. App’x at 312; Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 171 (3d Cir. 2004)
(recognizing that harmless error applies to violations of § 455(a)); Parker v. Connors Steel Co.,
855 F.2d 1510, 1526 (11th Cir. 1988) (holding that “[it] would . . . be ridiculous to remand this
case and reassign it to another judge after we have already exercised plenary review and have
concluded that summary judgment was proper.”). Notably, one issue raised on appeal was
whether the District Court erred when it granted the governments’ motions to dismiss Chang’s qui
tam action without holding an in-person hearing, an issue Chang seeks to raise in a Rule 60 motion.
The Appellate Court held it was not error.
Finally, Chang’s position for relief rests upon the fact that Judge Sleet issued rulings
adverse to Chang. Adverse legal rulings, however, are not proof of prejudice and generally do
not provide a basis for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994). Even
assuming, arguendo, that Judge Sleet should have recused himself, nothing in the record suggests
that harm resulted under the risk factors as set forth in Liljeberg.
7
V.
CONCLUSION
Chang has not shown that he is entitled to relief under Rule 60(b)(6). Because Rule
60(b)(6) is not appropriate, the Court will deny Chang’s motion for leave to refile the motion to
vacate. (D.I. 76). The Court will deny as moot Husbands’ motion to join Chang’s motion.
(D.I. 81).
An appropriate Order will be entered.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?