United States District Court, District of Columbia
JEFFREY A. LOVITKY, Plaintiff,
DONALD J. TRUMP, in his official capacity as President of the United States, Defendant.
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Jeffrey A. Lovitky once again sues Defendant Donald J. Trump
in his official capacity as President of the United States
for his allegedly deficient financial disclosures. Whereas
before, Mr. Lovitky challenged President Trump's
disclosure report as a candidate, this time Mr. Lovitky
raises virtually the same objection to two of the
President's disclosure reports while in office.
mandamus, injunctive, and declaratory relief, Mr. Lovitky, a
lawyer appearing pro se, wants the President to
separately identify his personal liabilities, which are
allegedly intermingled with non-personal business
Court dismissed Mr. Lovitky's prior case for lack of
standing. Although the Court of Appeals affirmed, it did so
on different jurisdictional grounds, finding in pertinent
part that the Mandamus Act does not reach an officer's
actions while he was a candidate. Although that issue is no
longer at hand, Mr. Lovitky fails to satisfy this Court that
he has standing to pursue the latest iteration of his claim,
or that this Court has subject-matter jurisdiction to hear
consideration of the briefing, the relevant legal
authorities, and the record as a whole,  the Court shall
GRANT President Trump's  Motion to
Dismiss the Complaint and DISMISS this case.
Statutory and Regulatory Framework
1978, Congress passed the Ethics in Government Act
(“EIGA”), 5 U.S.C. app. § 101 et
seq., which, in pertinent part, imposes financial
disclosure requirements on individuals holding certain public
offices. A sitting President fulfills these EIGA obligations
by filing a disclosure report with the Director of the Office
of Government Ethics (“OGE”). See 5
U.S.C. app. § 101(d), (f); id. § 103(b).
to the Complaint, those disclosures are made using OGE Form
278e. See Compl., ECF No. 1, ¶ 16 (alleging
manner by which President Trump made
disclosures). On Part 8 of that form, the filer
discloses certain financial liabilities. Id.
Instructions for Part 8 indicate that the individual must
“[r]eport liabilities over $10, 000 that you, your
spouse, or your dependent child owed at any time during the
reporting period.” Pl.'s Opp'n, Ex. 21, at ECF
p. 3. With regard to the filer's own liabilities, the
statutory bases for this instruction are 5 U.S.C. app. §
102(a) & (a)(4), which specify that the EIGA report
“shall include a full and complete statement” as
to “[t]he identity and category of value of the total
liabilities owed to any creditor other than a spouse, or a
parent, brother, sister, or child of the reporting individual
or of the reporting individual's spouse which exceed $10,
000 at any time during the preceding calendar year, ”
subject to certain exclusions. Those exclusions consist only
of mortgages on personal residences for certain filers, and
“any loan secured by a personal motor vehicle,
household furniture, or appliances, which loan does not
exceed the purchase price of the item which secures
it.” 5 U.S.C. app. § 102(a)(4)(A),
Implementing regulations likewise provide that the 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,
” with certain further requirements and exceptions. 5
C.F.R. § 2634.305(a), (b). The regulations also require
a President to list a mortgage on a personal residence.
Id. § 2634.305(c)(1).
enforcement mechanisms appear in the EIGA and follow-on
regulations. Officials in each branch-including, in this
case, the Director of OGE-must review disclosure reports for
compliance, request additional information if needed, and
identify further steps necessary to bring the filer into
compliance. 5 U.S.C. app. § 106(a), (b); see
also 5 C.F.R. § 2634.605. Certain officials are
authorized to “take any appropriate personnel or other
action in accordance with applicable law or regulation
against any individual failing to file a report or falsifying
or failing to report information required to be
reported.” 5 U.S.C. app. § 104(c). The responsible
officials, including the Director of OGE, are required to
refer a case to the Attorney General when they have
“reasonable cause to believe [an individual] has
willfully failed” to comply with his filing obligations
or “willfully falsified” required information.
Id. § 104(b). If the Attorney General finds
that an individual who is required to make financial
disclosures under the EIGA “knowingly and willfully
falsifies or . . . fails to file or report any information
that such individual is required to report, ” the
Attorney General has the authority to pursue a civil penalty
and/or to prosecute crimes carrying a punishment of
imprisonment and/or fines. Id. § 104(a)(1),
105 of the EIGA establishes the minimal requirements for
members of the public to obtain copies of these reports
through “written application, ” with certain
limitations on their use. Id. § 105(b), (c).
Factual Background and Procedural Posture
to Mr. Lovitky's Complaint, President Trump submitted
financial disclosure reports on OGE Form 278e on May 15,
2018, and May 15, 2019. Compl., ECF No. 1, ¶¶ 1, 16.
The President did not distinguish in Part 8 between personal
liabilities and non-personal business liabilities. See
Id. ¶¶ 1, 16-26. He “certified his
financial disclosures as being ‘true, complete and
correct.'” Id. ¶ 14 (emphasis
omitted). Reviewing officials found the President's
reports “to be in apparent compliance with the
disclosure requirements of the Ethics in Government
Act.” Id. Mr. Lovitky downloaded copies of the
2018 and 2019 reports from the OGE website, as “[t]here
is no requirement to submit an application for the financial
disclosure reports that have been filed by the President
while in office.” Id. ¶¶ 9, 15.
Lovitky previously challenged the disclosure report that
President Trump filed in 2016, when he was a presidential
candidate. See Lovitky v. Trump, 308 F.Supp.3d 250
(D.D.C. 2018) (Lovitky I). This Court dismissed Mr.
Lovitky's suit because he lacked standing to pursue
either mandamus or declaratory relief. See Id. at
258-60. The Court of Appeals affirmed the dismissal of Mr.
Lovitky's suit. Lovitky v. Trump, 918 F.3d 160
(D.C. Cir. 2019) (Lovitky II). Rather than address
standing, however, that court decided that the mandamus
statute does not apply to a filing made during an
official's candidacy. See Id. at 161, 163.
19, 2019, Mr. Lovitky filed this second suit against
President Trump in his official capacity. Mr. Lovitky claims
that Part 8 of the President's financial disclosures in
2018 and 2019 include the debts of certain business entities
for which he himself is “not liable, ” according
to Mr. Lovitky's scrutiny of mortgage agreements and
related documents. Compl., ECF No. 1, ¶¶ 17-21.
Meanwhile, that research suggests to Mr. Lovitky that
President Trump himself is liable for other debts
listed in Part 8. See Id. ¶¶ 22-25. Mr.
Lovitky alleges that this purported “commingl[ing] [of]
personal liabilities with non-personal liabilities incurred
by business entities . . . . makes it impossible to identify
exactly which liabilities listed on Part 8 of the
President's financial disclosure statements represent
personal liabilities.” Id. ¶ 45.
Lovitky's one-count Complaint alleges that the President
had “a non-discretionary duty to specifically identify
the liabilities that he was required to report.”
Id. ¶ 50. The mandamus-type relief he requests
would “direct[ ] the President to amend his financial
disclosure reports” in 2018 and 2019 “for the
purpose of specifically identifying” those liabilities.
Id. ¶ 56. Mr. Lovitky briefly asserts that he
is entitled to preliminary injunctive relief as well,
“because absent such relief Plaintiff will suffer
irreparable injury.” Id. In his prayer for
relief, Mr. Lovitky also seeks a declaratory judgment that
President Trump's “fail[ure] to provide a full and
complete statement of personal liabilities” on his OGE
Form 278e in 2018 and 2019 violated pertinent provisions of
the EIGA and an implementing regulation. Id. at
after bringing this suit, Mr. Lovitky filed his  Motion
for a Preliminary and Permanent Injunction. He argued that a
prompt decision was necessary in order to provide him with
the information he needed “to evaluate whether the
President's decisions have been or will be impacted by
personal financial considerations” and “to make
an informed voting decision” before the Texas
Republican Presidential primary election in March 2020 and
the general election in November 2020. Pl.'s Mem. in
Supp. of His Mot. for Prelim. and Perm. Inj., ECF No. 4, at
1, 35. The Court expressed its view that the issues would be
better addressed on the merits by an expedited ruling.
Accordingly, the parties agreed that Mr. Lovitky's motion
could be held in abeyance during expedited briefing of
President Trump's Motion to Dismiss the Complaint, which
he filed on June 5, 2019. Mr. Lovitky has asked the Court to
decide President Trump's motion within thirty days of his
opposing brief, filed on June 12, 2019, in order to save time
for appellate review and any remand. Pl.'s Opp'n at
1. Upon completion of briefing, this motion is now ripe for
resolution within the window Mr. Lovitky has requested.
Motions Invoking Rules 12(b)(1) and 12(b)(6)
must dismiss a case pursuant to Federal Rule of Civil
Procedure 12(b)(1) when it lacks subject-matter jurisdiction.
In determining whether there is jurisdiction, “the
court may consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented
by undisputed facts plus the court's resolution of
disputed facts.” Coal. for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)
(quoting Herbert v. Nat'l Acad. of Scis., 974
F.2d 192, 197 (D.C. Cir. 1992)) (internal quotation marks
omitted). “At the motion to dismiss stage, counseled
complaints, as well as pro se complaints, are to be
construed with sufficient liberality to afford all possible
inferences favorable to the pleader on allegations of
fact.” Settles v. U.S. Parole Comm'n, 429
F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable
inferences that a plaintiff receives on a motion to dismiss,
still that “[p]laintiff bears the burden of proving
subject matter jurisdiction by a preponderance of the
evidence.” Am. Farm Bureau v. EPA, 121
F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must
accept as true all factual allegations contained in the
complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1), [a] plaintiff['s] factual allegations in the
complaint . . . will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for
failure to state a claim.” Wright v. Foreign Serv.
Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007)
(internal citations and quotation marks omitted).
Federal Rules also require a complaint to include
“‘a short and plain statement of the claim
showing that the pleader is entitled to relief,' in order
to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355
U.S. 41, 47 (1957)). Although “detailed factual
allegations” are not necessary to withstand a Rule
12(b)(6) motion to dismiss, to provide the
“grounds” of “entitle[ment] to relief,
” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Id. (citing,
e.g., Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Instead, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is
plausible on its face.” Id. at 556, 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]'-
‘that the pleader is entitled to relief.'”
Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Pro Se Attorney Pleadings
Court reiterates its prior observation that an attorney
proceeding pro se is “presumed to have
knowledge of the legal system, ” and “[a]s a
result, he is not entitled to the same level of solicitude
often afforded non-attorney litigants proceeding without
legal representation.” Lempert v. Power, 45
F.Supp.3d 79, 81 n.2 (D.D.C. 2014) (Kollar-Kotelly, J.),
aff'd, 618 Fed.Appx. 3 (D.C. Cir. 2015) (per
curiam). Nonetheless, Mr. Lovitky's Complaint would be
subject to dismissal even if it were construed as liberally
as that of a non-attorney pro se litigant.
Trump has challenged Mr. Lovitky's standing to bring this
suit, as well as the Court's subject-matter jurisdiction
over his claim. “Because Article III courts are courts
of limited jurisdiction, ” the Court must consider its
“authority to hear a case before [it] can determine the
merits.” Wyo. Outdoor Council v. U.S. Forest
Serv., 165 F.3d 43, 47 (D.C. Cir. 1999) (citing
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 118 S.Ct. 1003, 1012-13 (1998)). “Where 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)). In light of likely appellate
review, the Court shall amplify the record by addressing both
threshold issues, even though Mr. Lovitky has failed to carry
his burden as to either issue. See In re Madison Guar.
Sav. & Loan Ass'n, 173 F.3d 866, 870 (D.C. Cir.
1999) (per curiam) (recognizing that “there is no bar
to . . . asserting an alternate ground where both
deficiencies are jurisdictional”).
Article III Standing
well established that the Court can hear this suit only if
Mr. Lovitky has Article III standing to bring it. “As
an aspect of justiciability, the standing question is whether
the plaintiff has ‘alleged such a personal stake in the
outcome of the controversy' as to warrant his invocation
of federal-court jurisdiction and to justify exercise of the
court's remedial powers on his behalf.” Warth
v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)).
“[T]he core component of standing is an essential and
unchanging part of the case-or-controversy requirement of
Article III.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (citing Allen v. Wright,
468737, 751 (1984)). “The law of Article III standing,
which is built on separation-of-powers principles, serves to
prevent the judicial process from being used to usurp the
powers of the political branches.” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 157 (2014) (internal
quotation marks omitted).
the familiar requirements of constitutional standing,
“[t]he plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (citing Defs. of
Wildlife, 504 U.S. at 560-61; Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000)). Mr. Lovitky, “as the party invoking
federal jurisdiction, bears the burden of establishing these
elements.” Id. (citing FW/PBS, Inc. v.
Dallas, 493 U.S. 215, 231 (1990)).
the Court found Mr. Lovitky's failure to establish
redressability was dispositive of his prior case, and shall
again find as much today, the Court shall begin with the
injury prong to show that the serious issues of
redressability are unavoidable.
Injury in Fact
the constitutional standard, Mr. Lovitky's alleged injury
must constitute “‘an invasion of a legally
protected interest' that is ‘concrete and
particularized' and ‘actual or imminent, not
conjectural or hypothetical.'” Spokeo,
Inc., 136 S.Ct. at 1548 (quoting Defs. of
Wildlife, 504 U.S. at 560). An injury is concrete when
it “actually exist[s], ” whether tangibly or
intangibly, and it is particularized when it “affect[s]
the plaintiff in a personal and individual way.”
Id. (internal quotation marks omitted).
Lovitky is alleging an informational injury, which “in
certain circumstances” suffices for an Article III
injury in fact. Elec. Privacy Info. Ctr. v. Presidential
Advisory Comm'n on Election Integrity, 878 F.3d 371,
378 (D.C. Cir. 2017) (EPIC) (citing FEC v.
Akins, 524 U.S. 11 (1998); Am. Soc'y for
Prevention of Cruelty to Animals v. Feld Entm't,
Inc., 659 F.3d 13, 22 (D.C. Cir. 2011)). This kind of
injury arises when a plaintiff allegedly “fail[ed] to
obtain information which must be publicly disclosed pursuant
to a statute, ” and that “statute grants [the]
plaintiff a concrete interest in the information
sought.” Nader v. FEC, 725 F.3d 226, 229 (D.C.
Cir. 2013) (first alteration in original; internal quotation
marks omitted). A plaintiff that has allegedly suffered an
informational injury satisfies the constitutional standard of
concreteness and particularity when “(1) it has been
deprived of information that, on its interpretation, a
statute requires the government or a third party to disclose
to it, and (2) it suffers, by being denied access to that
information, the type of harm Congress sought to prevent by
requiring disclosure.” EPIC, 878 F.3d at 378
(quoting Friends of Animals v. Jewell, 828 F.3d 989,
992 (D.C. Cir. 2016) (internal quotation marks omitted);
citing Spokeo, Inc., 136 S.Ct. at 1549), cert.
denied, 139 S.Ct. 791 (2019).
the first prong of the Friends of Animals inquiry,
Mr. Lovitky alleges that he has not received information that
the EIGA obligates the President to disclose. According to
Mr. Lovitky's interpretation of that statute, the
President must distinguish personal liabilities from
non-personal business liabilities. “[W]hen considering
whether a plaintiff has Article III standing, a federal court
must assume arguendo the merits of his or her legal
claim.” Parker v. District of Columbia, 478
F.3d 370, 377 (D.C. Cir. 2007) (citing Warth, 422
U.S. at 501-02), aff'd in part sub nom. District of
Columbia v. Heller, 554 U.S. 570 (2008). That assumption
extends to informational standing cases, as the Court of
Appeals has expressly recognized in Friends of
Animals and even more recently. See Friends of
Animals, 828 F.3d at 992 (examining plaintiff's
deprivation “on its interpretation” of a
statute); Waterkeeper All. v. EPA, 853 F.3d 527, 533
(D.C. Cir. 2017) (citing Parker, 478 F.3d at 377;
Feld Entm't, Inc., 659 F.3d at 22-23) (crediting
plaintiff's “view of the law” (internal
quotation marks omitted)). Abiding by Supreme Court and
Circuit precedent, this Court ought to accept Mr.
Lovitky's interpretation of the EIGA for standing
Trump counters that Mr. Lovitky is entitled to no more than a
copy of each year's financial disclosure report.
Def.'s Mem. at 24. He cites non-binding authority for the
proposition that “a plaintiff does not suffer an injury
in fact if it seeks only information that the applicable
statute does not require to be disclosed, ” namely the
distinction between President Trump's personal and
non-personal business liabilities. Def.'s Mem. at 25
(quoting Campaign Legal Ctr. v. FEC, 245 F.Supp.3d
119, 125 (D.D.C. 2017)) (internal quotation marks omitted);
see also Def.'s Reply at 15-16 (citing
Friends of Animals, 828 F.3d at 993; Wertheimer
v. FEC, 268 F.3d 1070, 1074-75 (D.C. Cir. 2001); New
England Anti-Vivisection Soc'y v. U.S. Fish &
Wildlife Serv., 208 F.Supp.3d 142, 157 (D.D.C. 2016)).
But the President takes this proposition out of context. In
each of the binding precedents on which the President relies,
Court of Appeals found that the litigant(s) did not actually
seek additional factual information. See Friends of
Animals, 828 F.3d at 993 (characterizing the
plaintiff's request as pertaining to a statute's
“deadline requirement, not its disclosure
requirement”); Wertheimer, 268 F.3d at 1074-75
(finding that ...