Lovitky v. Trump

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Seeking 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 liabilities.

         This 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 it.

         Upon consideration of the briefing, the relevant legal authorities, and the record as a whole, ^[1] the Court shall GRANT President Trump's [14] Motion to Dismiss the Complaint and DISMISS this case.

         I. BACKGROUND

         A. Statutory and Regulatory Framework

         In 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).

         According 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).^[2] 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), (B).^[3] 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).

         Several 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).^[4] 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), (2).

         Section 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).

         B. Factual Background and Procedural Posture

         According to Mr. Lovitky's Complaint, President Trump submitted financial disclosure reports on OGE Form 278e on May 15, 2018, and May 15, 2019.^[5] 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.

         Mr. 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.

         On May 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.

         Mr. 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 21.^[6]

         Shortly after bringing this suit, Mr. Lovitky filed his [4] 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.

         II. LEGAL STANDARD

         A. Motions Invoking Rules 12(b)(1) and 12(b)(6)

         A court 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).

         The 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)).

         B. Pro Se Attorney Pleadings

         The 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.

         III. DISCUSSION

         President 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”).

         A. Article III Standing

         It is 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).

         Under 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)).

         Although 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.

         1. Injury in Fact

         To meet 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).

         Mr. 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).

         Under 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 purposes.

         President 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, ^[7] the 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 ...