JEFFREY A. LOVITKY, APPELLANT v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, APPELLEE
No. 19-5199
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2019
Decided February 11, 2020
(No. 1:19-cv-01454)
Jeffrey A. Lovitky, pro se, argued the cause and filed the briefs for appellant.
Matthew J. Glover, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Mark B. Stern, Appellate Litigation Counsel, and Christopher A. Bates, Counsel to the Assistant General Counsel.
Before: ROGERS and MILLETT, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
ROGERS, Circuit Judge: The Ethics in Government Act requires public officials, including the President, tо disclose certain personal financial information. Jeffrey Lovitky is an attorney who alleges that President Trump has obscured those required disclosures by commingling his personal liabilities with debts owed by entities he controls, thereby depriving Lovitky of information to which he is entitled and needs to make informed voting decisions in the 2020 presidential primary and general elections. The court affirms the dismissal of Lovitky‘s lawsuit because he has not shown that he has a clear and indisputable right to mandamus-type relief.
I.
Congress enacted the Ethics in Gоvernment Act of 1978 (“Ethics Act“),
The President must file a financial disclosure report with the Director of the Office of Government Ethics (“OGE“) by May 15 of each year.
Regulations implementing the Ethics Act mandate that “each financial disclosure report . . . must identify and include a brief description of the filer‘s liabilities exceeding $10,000 owed to any creditor at any time during the reporting period, and the name of the creditors to whom such liabilities are owed.”
Members of the Executive Branch use OGE Form 278e to file their financial disclosures, reporting liabilities in Part 8 of that form. The instructions in Part 8 direct the filer to “[r]eport liabilities over $10,000 that you, your spouse, or your dependent child owed at any time during the reporting period.” U.S. Office of Gov‘t Ethics, Instructions for Completing Part 8 of the OGE Form 278e: Liabilities.
In addition to the forms, the Office of Government Ethics publishes a Public Financial Disclosure Guide as a “training tool.” U.S. Office of Gov‘t Ethics, Public Financial Disclosure Guide at 10 (2016) (“2016 Guide“). The July 2016 version of the Public Financial Disclosure Guide advised filers that they were “not required to report assets and liabilities of a trade or
What constitutes “unrelated” will vary based on the specific circumstances; however, the following general guidelines apply: . . .
Businesses that are not publicly traded: One nеeds to consider factors such as the type of asset or liability and its relationship to the economic activity conducted by the business. No one factor is necessarily dispositive; however, in many cases, the type of asset itself will demonstrate a nexus between the asset and operations of the business, which removes the need for further analysis. For example, in OGE‘s experience, a filer would not need to itemize office furniture, equipment, supplies, inventory, accounts receivable, accounts pаyable, working capital funds, real estate used in the operations of the business, or any mortgages on such real estate.
You do not need to report the following liabilities in Part 8: . . .
Liabilities of a trade or business, unless you, your spouse, or a dependent child is personally liable (i.e., do not include a loan owed by a LLC, unless you, your spouse, or a dependent child is also personally liable for that same loan).
Congress also created a system to review and enforce the requirements of the Ethics Act. After the President files a report, the OGE Director must review it and: sign it if it complies with applicable laws and regulations, request additional information, or deem it non-compliant and suggest remedial steps. See
Financial disclosure reports must be made available to the public upon written application.
President Trump filed his 2017 financial disclosure in May 2018 and his 2018 financial disclosure in May 2019. Both years, President Trump signed OGE Form 278e, thereby “certify[ing] that the statements I have made in this report are true, complete and correct to the best of my knowledge.” Both years, the OGE reviewing official certified the report as complying with the Ethics Act.
II.
In 2017, Lovitky brought a similar lawsuit against President Trump in his official capacity, alleging that then-candidate Trump had violated the Ethics Act by commingling personal and non-personal liabilities in his May 2016 financial disclosure report. See Lovitky v. Trump, 308 F. Supp. 3d 250, 253 (D.D.C. 2018). The district court dismissed Lovitky‘s lawsuit, finding that it did not have the power to issue the relief sought. Id. at 260. This court affirmed the dismissal, but on a different ground, holding that because the “Mandamus Act applies only to duties that flow from a defendant‘s public office,” and President Trump was merely a candidate for the presidеncy when the alleged duty arose, the court lacked subject matter jurisdiction over Lovitky‘s claims. Lovitky v. Trump, 918 F.3d 160, 161–63 (D.C. Cir. 2019).
After this court affirmed the dismissal, Lovitky filed this lawsuit, alleging that President Trump violated the Ethics Act
The key premise of Lovitky‘s complaint is that the Ethics Act “requires the President to disclose only personal liabilities, i.e., his personal debts.” Compl. ¶ 4. Lovitky does not allege that President Trump failed to include any of the personal liabilities on his disclosures that he was statutorily required to report. Oral Arg. Rec. at 2:57–3:28. Rather, Lovitky alleges that President Trump violated the Act by over-disclosing; that is, by listing debts in Part 8 of his May 2018 and May 2019 financial disclosure reports for which he was not personally liable. For example, Lovitky points out that in both years, President Trump disclosed a $5,000,001 to $25,000,000 liability owed to Amboy Bank for a mortgage on Trump National Golf Club Colts Neck LLC. But Lovitky alleges that the mortgage for that property (which he obtained on a New Jersey public records website) states that no member or manager is liable for the debt secured by the mortgage, so President Trump cannot be personally liable. Lovitky supports his deductions by referring to a New York Times article in which the Chief Financial Officer of the Trump Organization was quoted as saying the President “overdisclosed” his liabilities and was personally liable for only an unidentified “small percentage of the corporate debt” disclosed. Id. ¶ 45 (Lovitky‘s emphasis omitted) (quoting Susanne Craig, Trump‘s Empire: A Maze of Debts and Opaque Ties, N.Y. TIMES (Aug. 20, 2016), https://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html). Based on this evidence, Lovitky concludes that President Trump “commingled personal liabilities[] with debts of corporate entities,” thereby “obscur[ing] the debts that he was required to report.” Compl. ¶ 4.
President Trump moved in the district court to dismiss the complaint for lack of subject matter jurisdiction,
Lovitky appeals, contending that he established his standing, that the district court possessed subject matter jurisdiction, and that the district court issued an “ultra vires advisory opinion” by “hypothetically assuming” it had jurisdiction. See Appellant‘s Br. 4–5. Just like in Lovitky‘s prior appeal, the court begins — and ends — its analysis with subject matter jurisdiction, holding that Lovitky “lacks the clear right to relief based on a clear duty to act that is necessary to obtain mandamus relief.” See Walpin v. Corp. for Nat‘l & Cmty. Servs., 630 F.3d 184, 188 (D.C. Cir. 2011).
A.
Before proceeding to the merits of a case, the court must confirm that it has Article III jurisdiction. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94–95 (1998). Where, as here, “both standing and subject matter jurisdiction are at issue . . . a court may inquire into either and, finding it lacking, dismiss the matter without reaching the other.” Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). On appeal, this court reviews the district court‘s dismissal for lack of jurisdiction de novo and accepts all factual allegations in the complaint as true. Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002).
In his complaint, Lovitky invoked three statutory bases for jurisdiction:
Next, Lovitky has offered no support for his bare assertion that the federal question statute,
That leaves only the Mаndamus Act as a potential source of jurisdiction. That statute provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
“A court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Baptist Mem‘l Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) (internal quotation omitted). “These three threshold requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction.” Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). In other words, “mandamus jurisdiction under
“The remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances.” Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal quotation omitted). “Even when the legal requirements for mandаmus jurisdiction have been satisfied, however, a court may grant relief only when it finds compelling equitable grounds.” In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal
B.
The court will discuss the first two jurisdictional elements for mandamus-type relief — clear right to relief and clear duty to act — concurrently, as it often does. See, e.g., id. at 784–86. Although the term “duty” as used in section 1361 “must be narrowly defined . . . [t]his does not mean that mandamus actions are ruled out whenever the statute allegedly creating the duty is ambiguous.” In re Cheney, 406 F.3d at 729 (citing 13th Reg‘l Corp. v. Dep‘t of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)). Instead, the court must interpret the statute and if, “once interpreted,” the statute “creates a peremptory obligation for the officer to act, a mandamus action will lie.” 13th Reg‘l Corp., 654 F.2d at 760. Accordingly, in order to survive a motion to dismiss, Lovitky must have plausibly alleged that the Ethics Act, once interpreted, imposed a clear and indisputable duty on President Trump to differentiate personal from business liabilities. See Citizens for Responsibility & Ethics in Washington v. Trump, 924 F.3d 602, 606 (D.C. Cir. 2019). He has not done so.
The Ethics Act uses the term “total liabilities.” See
Lovitky argues that it “would have been absurd for Congress to have required disclosure of the debts of an unrelated third party, as such debts would not be likely to create conflict of interest issues.” Appellant‘s Br. 39. Lovitky appears to be invoking what this court has referred to as the absurdity doctrine or the canon against producing absurd results. See, e.g., W. Minn. Mun. Power Agency v. FERC, 806 F.3d 588, 596 (D.C. Cir. 2015). A “statutory outcome is absurd if it defies rationality by rendering a statute nonsensical or superfluous or if it creates an outcome so contrary to perceived social values that Congress could not have intended it.” United States v. Cook, 594 F.3d 883, 891 (D.C. Cir. 2010) (internal quotations and alteration omitted). Here, Lovitky has set up a straw man by arguing that it would have been absurd for Congress to require disclosure of non-personal debts: the question before the court is whether Congress clearly forbade such disclosures or, as Lovitky frames it in his reply brief, required differentiation. Not forbidding a filer to list liabilities beyond those required to be disclosed, or not requiring differentiation, does not render the statute nonsensical or superfluous. Given the threat of civil penalties and criminal prosecution, a cautious filer, or one with complicated financial holdings, may want to err on the side of over-disclosure. In addition, there are plausible reasons why Congress may have written the statute to not forbid, or at least allow, inclusion of liabilities that are not required to be disclosed. Cf. Landstar Express Am., Inc. v. Fed. Mar. Comm‘n, 569 F.3d 493, 498–99 (D.C. Cir. 2009). For example,
Next, Lovitky contends that the OGE regulations support his interpretation of the Act. The regulations require that “each financial disclosure report filed pursuant to this subpart must identify and include a brief description of the filer‘s liabilities.”
Likewise, though OGE‘s instructions for completing Part 8 of Form 278e direct the filer to “[r]eport liabilities over $10,000 that you, your spouse, or your dependent child owed at any time during the reporting period,” they do not clearly prohibit the filer from reporting liabilities owed by a closely held organization. See U.S. Office of Gov‘t Ethics, Instructions for Completing Part 8 of the OGE Form 278e: Liabilities.
Lovitky also relies оn the Public Financial Disclosure Guides published by OGE, which provide additional advice to filers and compliance officials. The 2016 version of the Guide (applicable to 2018 disclosures) advised filers that they were “not required to report assets and liabilities of a trade or business, unless those interests are unrelated to the operations
Despite relying on the Guides in his opening brief, Lovitky concedes in his reply brief that the “Guide does not have the force and effect of law” and that it “is not binding upon the President.” Reply Br. 25. This is an apt concession, because there is no evidence to suggest that the advice provided in the Guides is law. To the contrary, the 2016 Guide expressly stated that it was a “training tool” and that “applicable statutes and regulations are the final authorities.”1 2016 Guide at 10. While undoubtedly helpful to filers, the OGE Guides “would hardly be sufficient to transform [the statute‘s] silence on the subject . . . into the ‘clear duty’ required to justify a grant of mandamus.” Power, 292 F.3d at 786.
In addition, Lovitky leans on the Ethics Act‘s requirement that the annual report include a “full and complete statement”
Next, Lovitky reasons that “there is no functional distinction between an outright refusal to disclose personal liabilities, and disclosing a mixture of personal and non-personal liabilities and requiring ethics officials or members of the public to guess which are the personal liabilities,” asserting that they represent the same duty. See Appellant‘s Br. 41–42. But there is a distinction, at least for purposes of discerning whether there is a clear duty supporting mandamus-type relief. Refusing to disclose liabilities violates the Ethics Act‘s requirement that a filer make “a full and complete statement” of “total liabilities.” See
That said, Lovitky has identified what he perceives as a troubling gap in the Ethics Act, warning that there is “no limit to the ways in which a creative filer could obscure his assets and liabilities by commingling them with the assets and liabilities of businesses, non-immediate family members, or others.” Reply Br. 20. At oral argument, the court posed a hypothetical situation in which a filer voluntarily reports liabilities of family members and friends to willfully obscure the debts the statute requires to be disclosed. Oral Arg. Rec. at 24:35–25:31. The government first responded that the court‘s hypothetical posed a “closer case,” before ultimately taking the position that it “would not be a clear violation of the statute on
Because Lovitky has not shown that there is a “clear and compelling duty under the [Ethics Act] as interpreted” for President Trump to differentiate his personal from his non-personal liabilities on his May 2018 and May 2019 financial disclosure reports, the “court must dismiss the action.” See In re Cheney, 406 F.3d at 729. The district court thus had no appropriate occasion to announce how it would have ruled on the equitable considerations because “[w]hen a court lacks subject-matter jurisdiction” as the district court properly found — “it has no authority to address the dispute presented.” See Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017). Accordingly, the court vacates the portion of the district court‘s decision addressing whether the equities would favor issuing mandamus-type relief but otherwise affirms the judgment of the district court dismissing the case for lack of jurisdiction.