The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
INTRODUCTION AND BACKGROUND
In the Amended Complaint herein (Dkt. #4), plaintiff, Serotte, Reich & Wilson, LLP ("SRW") has brought this lawsuit against U.S. Immigration Judge Philip J. Montante ("IJ Montante"), alleging that IJ Montante violated SRW's constitutional right to due process guaranteed by the Fifth Amendment to the United States Constitution and that his arbitrary and capricious actions were an abuse of discretion in violation of the Administrative Procedures Act ("APA") (5 U.S.C. §§702 et seq.).
SRW is a limited liability law partnership whose members and associates are attorneys admitted to practice law and whose focus is on the practice of immigration law. SRW claims that it is entitled to injunctive and declaratory relief to redress IJ Montante's egregious and unfounded pattern and practice of extreme prejudice and bias towards SRW and members of its firm during the course of numerous cases upon which he presided, which conduct was outside the scope of his judicial capacity and in violation of SRW's constitutional rights and the APA. SRW alleges that its administrative complaints were ignored or neglected, stating that, "[s]ince the Chief Immigration Judge decided to defer to the OPR [Department of Justice, Office of Professional Responsibility], and OPR took no effective action, there is no available remedy left for SRW, but for the instant action."
Primarily, SRW seeks an injunction precluding IJ Montante from presiding over any of its cases and also seeks declaratory judgment declaring that SRW is able to represent those clients upon whose cases IJ Montante improperly disqualified it, that Judge Montante violated SRW's rights and cannot be fair and impartial in any proceedings before him in which SRW appears.
In lieu of Answer, IJ Montante filed a Motion to Dismiss (Dkt. #8) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (F.R.Cv.P.), arguing that (1) this Court lacks subject matter jurisdiction, (2) there is no constitutional or statutory basis for SRW's claims and (3) any claim for money damages is barred by the doctrine of judicial immunity.*fn2 Plaintiff has replied, oral argument thereon was held and the motion is now before the Court for decision.
Subject Matter Jurisdiction
SRW bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)). Further, in evaluating IJ Montante's motion to dismiss pursuant to F.R.Cv.P. 12(b)(1) for lack of such jurisdiction, the Court will accept SRW's factual allegations as true and draw all reasonable inferences in its favor and may refer to evidence and materials outside of the pleadings without converting the motion to one for summary judgment. Id.; Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (considering evidence outside of the pleadings) and Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (motion is not converted)). It is also noted that ,when there are allegations in a complaint that are not factual and consist chiefly of argument or conclusion, they will not be given this deferential consideration. See Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir. 2004). The Court will then dismiss for lack of subject matter jurisdiction if it finds that it "lacks the statutory or constitutional power to adjudicate it." Makarova, supra at 113; Aurecchione, supra at 638; Cerrone v. U.S., 2006 WL 2795614, *1 (W.D.N.Y. 2006).
IJ Montante argues that the Court lacks subject matter jurisdiction because SRW has not exhausted its administrative remedies. This relates to SRW's Third Cause of Action which alleges that IJ Montante's conduct was arbitrary, capricious and an abuse of discretion, entitling SRW to declaratory and injunctive relief pursuant to the APA*fn3 . The APA requires that an agency action be final before judicial review is allowed.5 U.S.C. §704. SRW does not dispute this and instead argues that it has exhausted its administrative remedies to the extent that those remedies were available to it, or that it should be excepted from such exhaustion requirement.
IJ Montante is an administrative judge appointed by the Attorney General within the Department of Justice's Executive Office for Immigration Review ("EOIR"), and the EOIR is charged with his supervision as having supervisory power over the Immigration Courts. 8 U.S.C. §1101; 6 U.S.C.§521. In addition, the Department of Justice has established an Office of Professional Responsibility ("OPR") for the investigation and discipline of Immigration Judges. 8 C.F.R.§1003.109. The Court thereby finds that it is within the operations of these offices that SRW must have proceeded with finality in order to exhaust its administrative remedies so as to confer jurisdiction under the APA, a finding with which SRW is not in dispute.*fn4 Because both of these agencies are within the U.S. Department of Justice, exhaustion within one or the other would satisfy the requirements of the APA. Nevertheless, SRW claims that it made an attempt to complain to both agencies.
After review of the Amended Complaint and the materials submitted in support of and in opposition to the instant motion, the Court finds that the redress SRW sought before the EOIR and/or OPR was insufficient to exhaust its administrative remedies in this case. The Amended Complaint refers to a series of cases in which it alleges IJ Montante behaved improvidently, yet the administrative complaints it filed with the EOIR and OPR focus on a single matter - to wit, Matter of Martin.*fn5 The Amended Complaint alleges pervasive conduct involved in a number of cases in which SRW claims IJ Montante's behavior, viewed cumulatively, violated the Constitution and/or the APA. Further, SRW consistently points out in its papers that the crux of its complaint against IJ Montante is the persistent pattern and practice of bias and prejudice he has exhibited overall and not just in any single case (or even several cases); hence it is in this manner that its administrative complaint or complaints must have been presented to the OPR or EOIR, which SRW has not proven it did. The Court therefore finds that SRW has not exhausted its administrative remedies so as to confer jurisdiction under the APA.*fn6
SRW argues that, even if it did not exhaust its administrative remedies, it nevertheless meets one or more of the established exceptions to the exhaustion rule. Specifically, SRW argues that the available administrative remedies provide no genuine opportunity for adequate relief in a case of this nature and that administrative appeal would be futile. See Guitard v. U. S. Sec'y of the Navy, 967 F.2d 737, 741 (2d Cir. 1992). To demonstrate this, SRW submits three letters, one from the OPR and two from the EOIR with respect to its complaints to them in the Martin case (Dkt. #9, Ex. D & E). A January 25, 2005 letter from the EOIR states that it shall defer to the remedies already being sought by SRW with the BIA (which challenged the judge's legal authority) and the matter pending before the OPR (which challenged the judge's professional conduct).*fn7 (Dkt. #9, Ex. E). Further, a second letter from the EOIR confirms its unwillingness to address SRW's complaints about IJ Montante in the Martin case (Ibid.). The July 11, 2005 OPR letter states that "it is not within the authority of this Office to 'issue a ruling' that IJ Montante be recused from cases involving your client and further stating that this is a demand which is the subject of your ongoing litigation your client has brought against IJ Montante and can be addressed by the court." (Dkt. #9, Ex. D). From this, the Court concludes that, even if the OPR were to find that IJ Montante acted improperly in any case, or series of cases, they either could not or would not grant the relief sought in the instant Amended Complaint - to wit, blanket recusal.*fn8
Based on the foregoing, the Court finds that neither the EOIR nor the OPR was willing or able to provide a genuine opportunity to seek the desired relief and administrative complaints or appeals with respect to the other cases would therefore be futile. The claims in SRW's Amended Complaint are therefore excepted from the ...