Montgomery v. Internal Revenue Service

District Court, District of Columbia·Decided June 4, 2020·No. Civil Action No. 2017-0918·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) THOMAS A. MONTGOMERY & BETH W. ) MONTGOMERY, ) ) Plaintiffs, ) ) v. ) Civil Action No. 17-918 (JEB) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

Since the dawn of organized sports, fans of losing teams have found a ready scapegoat

for their heroes’ shortcomings: the referee. Taking this lesson to heart, Plaintiffs Thomas and

Beth Montgomery not only assail the Court for adverse rulings, but they also ratchet their

grievances up a substantial and ill-considered notch: they move to disqualify the Court on the

ground of bias. Because their articulated bases lie somewhere between feeble and head

scratching, the Court will deny the Motion.

I. Legal Standard

Plaintiffs ground their Motion on 28 U.S.C. § 455(a) and (b)(1). The former instructs

that a judge “shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.” The latter requires disqualification where the judge “has a personal

bias or prejudice concerning a party . . . .” The Court bears in mind that “[t]he standard under

section 455(a) is objective: a judge must recuse [him]self only if there ‘is a showing of an

1 appearance of bias or prejudice sufficient to permit the average citizen reasonably to question a

judge’s impartiality.’” Karim-Panahi v. U.S. Congress, 105 F. App’x 270, 274 (D.C. Cir. 2004)

(quoting United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981)). Similarly, “[u]nder

section 455(b)(1), bias or prejudice must ‘result in an opinion on the merits on some basis other

than what the judge learned from [his] participation in the case.’” Id. (quoting United States v.

Grinnell Corp., 384 U.S. 563, 583 (1966)).

Before proceeding with its analysis, the Court notes that, while it has the option of

forwarding the Motion to Disqualify to another judge, transfer is not required. Id. at 274–75.

As the issues presented here are neither complex nor compelling, the Court need not impose on a

colleague.

II. Analysis

The lion’s share of the Montgomerys’ Motion complains of prior rulings that have not

gone their way. See, e.g., ECF No. 96 (Motion to Disqualify) at 6 (“The Ziegler Declaration is

a ‘sham affidavit’ that the Court should have disregarded; the government’s FOIA response

should control.”); id. at 7 (“Ignoring the existence of a disputed material fact[,] . . . the Court

granted summary judgment to the government on this official acknowledgment issue.”)

(emphasis omitted); id. (“Allowing the IRS to now neither admit nor deny the existence of

responsive records under the facts of this case would make a farce out of Glomar and FOIA.”);

id. at 8 (“In fact, this Court has gone to great lengths to protect the government from having to

answer whether there are records.”); id. at 9 (“At the very least discovery is required, yet the

Court did not so order.”); id. at 10 (“The Court’s holding that ‘none’ of that submission can be

provided . . . is clearly erroneous . . . .”). What a brave new world this would be if

2 disqualification could be sought any time a party lost a motion. That, of course, is not the

standard: “[J]udicial rulings . . . virtually never provide a basis for recusal.” SEC v. Loving

Spirit Foundation Inc., 392 F.3d 486, 494 (D.C. Cir. 2004).

Plaintiffs, moreover, conveniently omit any mention of the multiple substantive motions

that they have won, as that would not be in keeping with their theory of bias. See, e.g., ECF No.

28 (Memorandum Opinion) (denying Government’s motion for summary judgment and holding

that Plaintiffs’ claims not barred by a settlement agreement, collateral estoppel, or res judicata);

ECF No. 50 (Memorandum Opinion) (granting in part and denying in part each side’s motion for

summary judgment); ECF No. 62 (Order) (granting Plaintiffs’ Motion challenging the

sufficiency of IRS’s declarant and Government’s search); ECF No. 79 (Memorandum Opinion)

(granting Plaintiffs’ motion challenging IRS’s Glomar response); ECF No. 93 (Memorandum

Opinion) (denying Government’s Motion for Partial Summary Judgment and granting in part and

denying in part Plaintiffs’ Cross-Motion). Perhaps the Government could move to disqualify on

the basis of these decisions.

Beyond its rulings, the Montgomerys also believe that certain phrases the Court has used

in its Opinions evince its deep-seated bias. For example, they say that “[b]y characterizing this

action as a ‘never-ending heavyweight bout’ the Court equates private individuals with the entire

U.S. government. . . . The Court’s unfounded and unnecessary statements against Plaintiffs

raise serious questions as to whether the Court is a willing participant in this war (on the side of

the government) as opposed to an objective arbiter.” DQ Motion at 2. Indeed, they say, “Such

statements could chill others from exercising or enforcing the rights granted to them by FOIA.

The risk of public scorn and derision by a respected Federal Court may be viewed as too high a

3 price to pay to learn the truth.” Id. With a straight face, Plaintiffs submit that the use of this

neutral boxing metaphor somehow causes all of the aforementioned harms and is thus a basis for

a motion to disqualify. It isn’t.

One might infer from arguments like these that Plaintiffs prefer a more decorous or

dignified turn of phrase and shrink from any type of infelicitous language. One would be

mistaken. See, e.g., ECF No. 24 (Pl. Sur-Reply) (“Defendant relentlessly distorts Plaintiffs’

burden . . . .”); ECF No. 33-1 (Pl. Opposition) at 3–4 (“Defendant has shown no interest in

complying with the mandates of FOIA . . . . Defendant’s resistance to complying with the rules

of a fair and efficient judicial process with respect to Plaintiffs has not been limited to the current

litigation, but has been a long-standing feature of Defendant’s litigation strategy. . . . Nor does

Defendant mention the other instances where it flouted its responsibilities, including candor to

the court . . . .”) (footnote omitted); id. at 5 (“Given Defendant’s history of evasiveness, lack of

candor, willingness to ignore court orders, and unwillingness to follow the basic rules of fair and

efficient litigation . . . .”); ECF No. 40 (Motion) at 11 (“Defendant’s stipulated testimony in

Southgate was untrue, and the assertions made in its Procedural SJ Motion were equally false or

misleading.”).

In sum, the Court perceives no legitimate basis upon which its “impartiality ‘might

reasonably be questioned.’” Karim-Panahi, 105 F. App’x at 274 (quoting 28 U.S.C. § 455(a)).

For a firm that understandably prides itself on a long and storied past, see White & Case: The

First 100 Years & Beyond, https://history.whitecase.com/white-and-case (last visited June 4,

2020), motions like this one do its reputation no favors.

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