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Lovitky v. Trump

United States District Court, District of Columbia

April 10, 2018

DONALD J. TRUMP, in his official capacity as President of the United States, Defendant.



         Plaintiff Jeffrey A. Lovitky, an attorney appearing pro se, wants to compel Defendant President Donald J. Trump to disaggregate personal liabilities from non-personal liabilities allegedly disclosed together on a government form during the latter's candidacy for President of the United States. Defendant seeks dismissal of the complaint for lack of subject-matter jurisdiction and failure to state a claim.

         Upon consideration of the briefing, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's [20] Motion to Dismiss the Second Amended Complaint, and DISMISSES this case.

         I. BACKGROUND

         A. Statutory Framework

         In 1978, Congress passed the Ethics in Government Act (“EIGA”), which, in pertinent part, imposes financial disclosure obligations on individuals holding or seeking certain public offices. See generally 5 U.S.C. app. 4 §§ 101-11 (2016). For presidential candidates, fulfilling the EIGA's requirements involves filing a financial disclosure report with the Federal Election Commission (“FEC”), which then transmits the report to the Director of the Office of Government Ethics (“OGE”). See Id. § 103(c), (e); Def.'s Mot. at 3; U.S. Office of Gov't Ethics, Presidential Candidates, (last visited Apr. 9, 2018). 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. 5 U.S.C. app. 4 § 105. If an individual who is required to make financial disclosures under the EIGA “knowingly and willfully falsifies or . . . knowingly and willfully fails to file or report any information” required by the EIGA, the Attorney General may file suit and may be permitted to recover a civil penalty. Id. § 104(a)(1).

         Executive Branch personnel who must file the above-described report do so through an OGE Form 278e. See Def.'s Mot. at 3; Def.'s Ex. 1, ECF No. 20-1.[2] The pertinent portion of this form is “Part 8, ” where the reporting individual is required to list certain financial liabilities. Def.'s Mot. at 3; Def.'s Ex. 1, ECF No. 20-1. 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.” Def.'s Ex. 1, ECF No. 20-1, at 2. With regard to the filer's own liabilities, the statutory bases for this instruction are 5 U.S.C. app. 4 § 102(a) & (a)(4), which specify that the EIGA report must 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. 4 § 102(a)(4); see also 5 C.F.R. § 2634.305 (2018) (providing that the report “shall identify and include a brief description of the filer's liabilities over $10, 000, ” with certain further clarifications not relevant here). Moreover, “[w]ith respect to revolving charge accounts, only those with an outstanding liability which exceeds $10, 000 as of the close of the preceding calendar year need be reported.” 5 U.S.C. app. 4 § 102(a)(4).

         B. Factual Background and Current Posture

         According to Plaintiff's Second Amended Complaint, Defendant during his presidential candidacy filed a financial disclosure report with the FEC on OGE Form 278e. See 2d Am. Compl., ECF No. 16, ¶¶ 12-13. On May 16, 2016, he “certified his financial disclosures as being ‘true, complete and correct.'” Id. ¶ 13 (emphasis omitted). Reviewing officials found Defendant's report to be “in apparent compliance with the disclosure requirements of the Ethics in Government Act.” Id. On approximately December 15, 2016, Plaintiff applied through the OGE's website for a copy of Defendant's report, which he received on December 19, 2016. Id. ¶ 15.

         On March 14, 2017, Plaintiff pro se filed suit against Defendant in his official capacity as President. Compl., ECF No. 1. On July 30, 2017, Plaintiff filed his Second Amended Complaint with Defendant's consent. Notice of Consent, ECF No. 15; 2nd Am. Compl., ECF No. 16. Plaintiff alleges that Defendant's report includes, in addition to debts for which he is personally liable, others for which his business entities, but not he himself, are liable. E.g., 2d Am. Compl., ECF No. 16, ¶¶ 17, 36, 37. Plaintiff further alleges that this purported “commingl[ing]” of personal and non-personal liabilities “mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [EIGA statutory and implementing provisions].” Id. Plaintiff's one-count Second Amended Complaint alleges the President's “non-discretionary duty to specifically identify the liabilities for which he is personally obligated.” Id. ¶ 46. The mandamus-type relief he requests would “direct[ ] the President to amend his financial disclosure report dated May 16, 2016, for the purpose of specifically identifying any debts he owed during the January 1, 2015 - April 15, 2016 reporting period.” Id. ¶ 51. Additionally, in his prayer for relief, Plaintiff requests a declaratory judgment that Defendant violated pertinent EIGA statutory and implementing provisions “by failing to provide a full and complete statement of his liabilities on his May 16, 2016 financial disclosure statement.” Id. at 14.

         On August 14, 2017, Defendant filed a motion to dismiss Plaintiff's Second Amended Complaint. Def.'s Mot. Upon completion of briefing, this motion is now ripe for resolution.


         A. Subject Matter Jurisdiction under Rule 12(b)(1)

         A court must dismiss a case pursuant to Federal Rule 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.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). “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. Envtl. Prot. Agency, 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).

         B. Failure to State a Claim under Rule 12(b)(6)

         Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 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.” Iqbal, 556 U.S. at 678.

         C. 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. App'x 3 (D.C. Cir. 2015), cert. denied, 136 S.Ct. 1465 (2016). Nonetheless, ...

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