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Serotte, Reich & Wilson, LLP v. Montante

September 18, 2009

SEROTTE, REICH & WILSON, LLP, PLAINTIFF,
v.
PHILIP J. MONTANTE, JR., DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiff Serotte, Reich & Wilson, LLP ("SRW"), a Buffalo-based law firm specializing in immigration law, alleges that Defendant Philip J. Montante, Jr. ("Judge Montante"), a United States Immigration Judge assigned to the Buffalo Immigration Court, acted arbitrarily and capriciously in violation of the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 702 et seq. SRW had also asserted constitutional due process claims, but those claims were dismissed by the Honorable John T. Elfvin, the Senior District Judge to whom this case was previously assigned.*fn1 See Serotte, Reich & Wilson, LLP v. Montante, No. 05-CV-284E, 2006 WL 3827421 (W.D.N.Y. Dec. 27, 2006). Familiarity with Judge Elfvin's decision is presumed.

Presently before this Court is Judge Montante's Motion to Dismiss SRW's APA claim, the only claim remaining in this case.*fn2 For the reasons that follow, Judge Montante's motion is granted.

II. BACKGROUND

A. SRW's APA Claim

In its third cause of action, SRW seeks declaratory and injunctive relief under the APA to redress what it alleges is Judge Montante's "egregious and unfounded pattern and practice of prejudice and bias towards SRW and members of its firm . . . which conduct was entirely outside the scope of defendant's judicial capacity." (See Amended Complaint, Docket No. 4, ¶¶ 6, 58-60.)

SRW's allegations against Judge Montante center around six cases in which SRW appeared as counsel and over which Judge Montante presided. The allegations relate to Judge Montante's disqualification and treatment of SRW lawyers. SRW does not allege any harm or prejudice to its clients, but rather, seeks relief strictly for itself.

1. Proceedings Before Judge Montante

Several of the alleged incidents involve Judge Montante's rulings on disqualification issues. SRW employed Rolando R. Velasquez, Esq., who was a former Assistant District Counsel for the Immigration and Naturalization Service ("INS"). (Amended Complaint, ¶ 8.) Velasquez worked as an Assistant District Counsel from October 1994 through March 2001, at which time he joined SRW and worked there representing respondents through July 2004. (Amended Complaint, ¶¶ 9, 11.)

SRW alleges that Judge Montante acted arbitrarily and capriciously when considering whether a conflict of interest prevented Velasquez individually, or SRW as a firm, from representing respondents in certain cases that Velasquez may have worked on while employed by the INS. For example, SRW alleges that Judge Montante (1) sua sponte ordered SRW to obtain legal opinions, in April and May 2004, from the New York State Bar Association in two cases (Matter of Leonel Agurto and Matter of Martin) as to whether it was a violation of the ethics code for SRW to represent the respondents in those cases in light of Velasquez's previous employment with INS (Amended Complaint, ¶¶ 8, 19, 20, 21); (2) sua sponte disqualified SRW from representing the respondent in Matter of Martin, on November 16, 2004, despite the New York State Bar Association's "informal response" concluding that there was no conflict of interest*fn3 (Amended Complaint, ¶¶ 7-11, 13, 14, 27, 29); and (3) questioned Velasquez's representation of the respondent in Matter of Al Khaliji, in June 2003, despite Velasquez explaining that he had not personally and substantially worked on the case while employed by the INS (Amended Complaint, ¶ 12).

SRW also alleges that Judge Montante demonstrated bias through his treatment of SRW attorney Sophie Feal, Esq. SRW alleges that, in October 2003, Judge Montante questioned the integrity of documents Feal submitted on behalf of the respondent in Matter of El Sayed Mohamed and "suggest[ed] that Ms. Feal had fabricated documents or facts in that case." (Amended Complaint, ¶ 15.) It also alleges that Judge Montante made "unfounded insinuations" about Feal's ethics with regard to the preparation of witness affidavits in Matter of Kouznetsova. (Amended Complaint, ¶ 18.) Further, SRW alleges that Judge Montante accused Feal of withholding information from the New York State Bar Association concerning whether a conflict of interest existed in Matter of Martin. (Amended Complaint, ¶ 30.)

SRW also alleges that Judge Montante had a "serious disagreement" with SRW attorney William Z. Reich, Esq., in October 2003, about whether Reich was disrespectful to Judge Montante during his representation of the respondent in Matter of Andre. (Amended Complaint, ¶ 16.) This disagreement resulted in Judge Montante directing Reich to leave the courtroom, and ultimately Judge Montante sua sponte disqualified Reich from proceeding as counsel. (Amended Complaint, ¶¶ 16, 17.) SRW alleges that Reich was "merely zealously representing his client." (Amended Complaint, ¶ 16.)

Finally, SRW alleges that Judge Montante lodged a "false at best and libelous at worst" allegation against it in his decision removing SRW from Matter of Martin. (Amended Complaint, ¶ 31.) In that decision, Judge Montante allegedly cited a previous case, Matter of Adams, as an example of SRW not effectively screening Velasquez from a case in which he had previously been involved for the INS. (Amended Complaint, ¶ 31.) Based on Matter of Adams, Judge Montante allegedly concluded that SRW had "no effective screening procedures . . . in place" and therefore disqualified SRW in Matter of Martin. (Amended Complaint, ¶ 31.) SRW alleges that lack of screening procedures is a serious allegation that affects its "professional reputation and future representation of other clients." (Amended Complaint, ¶¶ 31, 33.) It further alleges that Judge Montante gave it no opportunity to respond to or challenge this allegation. (Amended Complaint, ¶¶ 33, 35.)

2. SRW's Administrative Complaints

SRW alleges that it attempted to resolve its issues with Judge Montante by writing to the United States Department of Justice, Office of Professional Responsibility ("OPR") and to the Chief Immigration Judge, ...


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