1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA et al., Case No. 13-cv-03835-JD
8 Plaintiffs, ORDER RE RECUSAL REQUEST v. 9
10 TETRA TECH EC, INC. et al., Defendants. 11 12 LINDA PARKER PENNINGTON et al., Case No. 18-cv-05330-JD Plaintiffs, 13 v. 14
15 TETRA TECH EC, INC. et al., Defendants. 16 17 BAYVIEW HUNTERS POINT Case No. 19-cv-01417-JD RESIDENTS et al., 18 Plaintiffs, 19 v. 20 TETRA TECH EC, INC. et al., 21 Defendants. 22 JENGJIA CHEN, Case No. 19-cv-03955-JD 23 Plaintiff, 24 v.
25 TETRA TECH, INC. et al., 26 Defendants. 27 1 SAN FRANCISCO SHIPYARD Case No. 19-cv-06137-JD RESIDENTS et al., 2 Plaintiffs, 3 v. 4 TETRA TECH EC, INC. et al., 5 Defendants. 6 7 Defendants Tetra Tech EC, Inc. and Tetra Tech, Inc. (together, “Tetra Tech”) are parties in 8 multiple lawsuits challenging their work under a federal contract to remediate environmental 9 contamination at the Hunters Point Naval Shipyard (“HPNS”) in San Francisco. Some of the 10 cases are whistleblower actions under the False Claims Act, 31 U.S.C. §§ 3729 et seq. The other 11 cases are actions by property owners who allege damages caused by contamination at or near their 12 homes. 13 Several of the property owner lawsuits were originally filed in California state court. Tetra 14 Tech removed those actions to this Court on the grounds, among others, that HPNS was a federal 15 enclave. See Dkt. Nos. 1, 36 in Case No. 18-5330. Plaintiffs strongly objected to removal, and 16 presented a number of factual and legal challenges to federal jurisdiction in support of their 17 request for a remand. See Dkt. Nos. 13, 44. After carefully reviewing the parties’ arguments and 18 the large volume of supporting materials they filed, the Court determined that Tetra Tech properly 19 removed on the basis of federal enclave jurisdiction. Consequently, the Court sustained removal 20 and denied plaintiffs’ motion to remand the cases to state court. Dkt. No. 57. 21 Tetra Tech now claims to see in the remand order a sign that the Court has “prejudged the 22 evidence” and “already decided” that Tetra Tech fraudulently billed the government for work it 23 didn’t perform, as alleged in the whistleblower cases. Dkt. No. 116 in Case No. 13-3835. It 24 points specifically, and only, to a single sentence in the order to the effect that the Navy has paid it 25 substantial sums of money for work that “they did not do, as plaintiffs allege.” Id. at 2. Tetra 26 Tech also reaches back to a criminal sentencing hearing the Court held in May 2018 for a former 27 employee who pleaded guilty to falsifying records in connection with the remediation work at 1 negative signs. In Tetra Tech’s view, these items indicate that the Court has either completely pre- 2 judged that Tetra Tech is liable under the FCA, or may be reasonably questioned as partial. It 3 requests recusal under 28 U.S.C. § 455(a). 4 Motions under Section 455 are determined by the judge to whom the motion is directed. 5 See 28 U.S.C. § 455(a); see also Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 257 F. Supp. 3d 6 1084, 1088 (N.D. Cal. 2017), mandamus denied, In re: Ctr. for Med. Progress and Daleiden, Dkt. 7 No. 17, Case No. 17-73313 (9th Cir. Apr. 30, 2018); United States v. Sibla, 624 F.2d 864, 867-68 8 (9th Cir. 1980) (Section 455 is “directed to the judge,” “is self-enforcing on the part of the judge,” 9 and “includes no provision for referral of the question of recusal to another judge”). The standard 10 for deciding recusal “is an objective one and asks ‘whether a reasonable person with knowledge of 11 all the facts would conclude that the judge’s impartiality might reasonably be questioned.’” Nat’l 12 Abortion Fed’n, 257 F. Supp. 3d at 1089 (quoting United States v. Holland, 519 F.3d 909, 913-14 13 (9th Cir. 2008)). “The ‘reasonable person’ for this inquiry is not ‘someone who is hypersensitive 14 or unduly suspicious, but rather is a well-informed, thoughtful observer.’” Nat’l Abortion Fed’n, 15 257 F. Supp. 3d at 1089 (quoting Holland, 519 F.3d at 913 (internal citations and quotations 16 omitted). A Section 455 motion is also evaluated in light of the traditional principle that a judge 17 has “as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when 18 the law and facts require.” Clemens v. U.S. Dist. Court for Central Dist. of Cal., 428 F.3d 1175, 19 1179 (9th Cir. 2005) (quotation omitted). 20 No reasonable or thoughtful person would conclude that the Court has pre-judged the 21 merits or lacks impartiality with respect to Tetra Tech’s potential liability vel non. To start, Tetra 22 Tech’s interpretation of the sentence in the remand order is untenable. The sentence, which 23 appears in a paragraph discussing the background of the litigation, simply summarized plaintiffs’ 24 allegations against Tetra Tech. The plain words in the sentence -- “as plaintiffs allege” -- makes 25 this patently clear. A reasonable person, especially one familiar with the routine practice of 26 summarizing the parties’ allegations in judicial orders, would not read it in any other way. Tetra 27 Tech’s suggestion to the contrary borders on the frivolous. 1 So too for portions of the colloquy Tetra Tech cites from the sentencing hearing. There is 2 no doubt that the Court engaged in a searching inquiry with the defendant and his counsel. That is 3 because criminal sentences must be sufficient but not greater than necessary to meet the goals of 4 imposing a just and fair punishment. 18 U.S.C. § 3553(a). To that end, the Court is required to 5 consider “the nature and circumstances of the offense,” among other factors, id. at § 3553(a)(1), 6 and may examine any information, without limitation, about the defendant’s conduct that is not 7 otherwise prohibited by law. See 18 U.S.C. §3661; United States Sentencing Guidelines § 1B1.4 8 (Nov. 2018). This is a critical part of “the traditional discretion of sentencing courts to ‘conduct 9 an inquiry broad in scope, largely unlimited either as to the kind of information [they] may 10 consider, or the source from which it may come.’” Pepper v. United States, 562 U.S. 476, 489 11 (2011) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). 12 The Court’s discussion at the sentencing of the former Tetra Tech employee was done 13 under these governing standards, and was directed only to determining a just punishment for the 14 individual before the Court. That individual, Justin E. Hubbard, had admitted in his plea 15 agreement that, among other things, during 2012 he had illegally switched “clean” dirt (obtained 16 from an area he knew to be “outside the relevant marked survey unit”) with “dirt taken from 17 survey units in the North Pier area of HPNS,” all “in direct contravention of the relevant U.S. 18 Navy testing protocols.” Dkt. No. 8 in Case No. 17-cr-278.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA et al., Case No. 13-cv-03835-JD
8 Plaintiffs, ORDER RE RECUSAL REQUEST v. 9
10 TETRA TECH EC, INC. et al., Defendants. 11 12 LINDA PARKER PENNINGTON et al., Case No. 18-cv-05330-JD Plaintiffs, 13 v. 14
15 TETRA TECH EC, INC. et al., Defendants. 16 17 BAYVIEW HUNTERS POINT Case No. 19-cv-01417-JD RESIDENTS et al., 18 Plaintiffs, 19 v. 20 TETRA TECH EC, INC. et al., 21 Defendants. 22 JENGJIA CHEN, Case No. 19-cv-03955-JD 23 Plaintiff, 24 v.
25 TETRA TECH, INC. et al., 26 Defendants. 27 1 SAN FRANCISCO SHIPYARD Case No. 19-cv-06137-JD RESIDENTS et al., 2 Plaintiffs, 3 v. 4 TETRA TECH EC, INC. et al., 5 Defendants. 6 7 Defendants Tetra Tech EC, Inc. and Tetra Tech, Inc. (together, “Tetra Tech”) are parties in 8 multiple lawsuits challenging their work under a federal contract to remediate environmental 9 contamination at the Hunters Point Naval Shipyard (“HPNS”) in San Francisco. Some of the 10 cases are whistleblower actions under the False Claims Act, 31 U.S.C. §§ 3729 et seq. The other 11 cases are actions by property owners who allege damages caused by contamination at or near their 12 homes. 13 Several of the property owner lawsuits were originally filed in California state court. Tetra 14 Tech removed those actions to this Court on the grounds, among others, that HPNS was a federal 15 enclave. See Dkt. Nos. 1, 36 in Case No. 18-5330. Plaintiffs strongly objected to removal, and 16 presented a number of factual and legal challenges to federal jurisdiction in support of their 17 request for a remand. See Dkt. Nos. 13, 44. After carefully reviewing the parties’ arguments and 18 the large volume of supporting materials they filed, the Court determined that Tetra Tech properly 19 removed on the basis of federal enclave jurisdiction. Consequently, the Court sustained removal 20 and denied plaintiffs’ motion to remand the cases to state court. Dkt. No. 57. 21 Tetra Tech now claims to see in the remand order a sign that the Court has “prejudged the 22 evidence” and “already decided” that Tetra Tech fraudulently billed the government for work it 23 didn’t perform, as alleged in the whistleblower cases. Dkt. No. 116 in Case No. 13-3835. It 24 points specifically, and only, to a single sentence in the order to the effect that the Navy has paid it 25 substantial sums of money for work that “they did not do, as plaintiffs allege.” Id. at 2. Tetra 26 Tech also reaches back to a criminal sentencing hearing the Court held in May 2018 for a former 27 employee who pleaded guilty to falsifying records in connection with the remediation work at 1 negative signs. In Tetra Tech’s view, these items indicate that the Court has either completely pre- 2 judged that Tetra Tech is liable under the FCA, or may be reasonably questioned as partial. It 3 requests recusal under 28 U.S.C. § 455(a). 4 Motions under Section 455 are determined by the judge to whom the motion is directed. 5 See 28 U.S.C. § 455(a); see also Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 257 F. Supp. 3d 6 1084, 1088 (N.D. Cal. 2017), mandamus denied, In re: Ctr. for Med. Progress and Daleiden, Dkt. 7 No. 17, Case No. 17-73313 (9th Cir. Apr. 30, 2018); United States v. Sibla, 624 F.2d 864, 867-68 8 (9th Cir. 1980) (Section 455 is “directed to the judge,” “is self-enforcing on the part of the judge,” 9 and “includes no provision for referral of the question of recusal to another judge”). The standard 10 for deciding recusal “is an objective one and asks ‘whether a reasonable person with knowledge of 11 all the facts would conclude that the judge’s impartiality might reasonably be questioned.’” Nat’l 12 Abortion Fed’n, 257 F. Supp. 3d at 1089 (quoting United States v. Holland, 519 F.3d 909, 913-14 13 (9th Cir. 2008)). “The ‘reasonable person’ for this inquiry is not ‘someone who is hypersensitive 14 or unduly suspicious, but rather is a well-informed, thoughtful observer.’” Nat’l Abortion Fed’n, 15 257 F. Supp. 3d at 1089 (quoting Holland, 519 F.3d at 913 (internal citations and quotations 16 omitted). A Section 455 motion is also evaluated in light of the traditional principle that a judge 17 has “as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when 18 the law and facts require.” Clemens v. U.S. Dist. Court for Central Dist. of Cal., 428 F.3d 1175, 19 1179 (9th Cir. 2005) (quotation omitted). 20 No reasonable or thoughtful person would conclude that the Court has pre-judged the 21 merits or lacks impartiality with respect to Tetra Tech’s potential liability vel non. To start, Tetra 22 Tech’s interpretation of the sentence in the remand order is untenable. The sentence, which 23 appears in a paragraph discussing the background of the litigation, simply summarized plaintiffs’ 24 allegations against Tetra Tech. The plain words in the sentence -- “as plaintiffs allege” -- makes 25 this patently clear. A reasonable person, especially one familiar with the routine practice of 26 summarizing the parties’ allegations in judicial orders, would not read it in any other way. Tetra 27 Tech’s suggestion to the contrary borders on the frivolous. 1 So too for portions of the colloquy Tetra Tech cites from the sentencing hearing. There is 2 no doubt that the Court engaged in a searching inquiry with the defendant and his counsel. That is 3 because criminal sentences must be sufficient but not greater than necessary to meet the goals of 4 imposing a just and fair punishment. 18 U.S.C. § 3553(a). To that end, the Court is required to 5 consider “the nature and circumstances of the offense,” among other factors, id. at § 3553(a)(1), 6 and may examine any information, without limitation, about the defendant’s conduct that is not 7 otherwise prohibited by law. See 18 U.S.C. §3661; United States Sentencing Guidelines § 1B1.4 8 (Nov. 2018). This is a critical part of “the traditional discretion of sentencing courts to ‘conduct 9 an inquiry broad in scope, largely unlimited either as to the kind of information [they] may 10 consider, or the source from which it may come.’” Pepper v. United States, 562 U.S. 476, 489 11 (2011) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). 12 The Court’s discussion at the sentencing of the former Tetra Tech employee was done 13 under these governing standards, and was directed only to determining a just punishment for the 14 individual before the Court. That individual, Justin E. Hubbard, had admitted in his plea 15 agreement that, among other things, during 2012 he had illegally switched “clean” dirt (obtained 16 from an area he knew to be “outside the relevant marked survey unit”) with “dirt taken from 17 survey units in the North Pier area of HPNS,” all “in direct contravention of the relevant U.S. 18 Navy testing protocols.” Dkt. No. 8 in Case No. 17-cr-278. Based on these admitted facts, the 19 Court probed defendant on the circumstances of his conduct and his role in the crime, because 20 such facts were indisputably relevant to the determination of a just punishment. The Court 21 expressly made clear that it was not “doing any fact-finding,” Dkt. No. 116 at 9:10, and the 22 colloquy was not directed to the claims raised in the FCA or other cases against Tetra Tech, or any 23 potential liability on its part. The inquiry about what retesting expenses, if any, Tetra Tech might 24 cover, was in response to defendant Hubbard’s assertion that his crime has “been rectified 25 financially.” Dkt. No. 116 at 18:2-4. Nowhere did the Court state, or even suggest, that Tetra 26 Tech should cover any of that expense because of any wrongdoing on its part. No reasonable and 27 well-informed person would conclude otherwise. 1 A good argument can also be made that Tetra Tech failed to act in a timely manner in 2 || connection with the sentencing proceedings. See Preston v. United States, 923 F.2d 731, 732-33 3 (9th Cir. 1991) (it is “well established that a motion to disqualify or recuse a judge under 28 4 || U.S.C. § 144 [as well as] .. . § 455 must be made in a timely fashion”; “absence of such a 5 |} requirement would result in increased instances of wasted judicial time and resources and a 6 || heightened risk that litigants would use recusal motions for strategic purposes’’) (internal citations 7 || omitted). The sentencing took place in May 2018, and the transcript has been publicly available 8 on the ECF docket since April 30, 2019. Dkt. No. 29. Tetra Tech does not say why it waited so 9 || long to act on its suspicions. 10 Consequently, recusal is unwarranted and inappropriate. Tetra Tech has not presented a 11 “legitimate reason to recuse,” and the Court consequently has a “duty to sit.” Clemens, 428 F.3d 12 at 1179. The merits of the claims alleged by the plaintiffs remain wide open and disputed, and a 5 13 date for a jury trial will be set at the upcoming case management conference. IT IS SO ORDERED. 3 15 Dated: October 25, 2019 16
Ye JAMES #PONATO Z 18 United ftates District Judge 19 20 21 22 23 24 25 26 27 28