Lovitky v. Trump
| Decision Date | 12 July 2019 |
| Docket Number | Civil Action No. 19-1454 (CKK) |
| Court | U.S. District Court — District of Columbia |
| Parties | JEFFREY A. LOVITKY, Plaintiff, v. DONALD J. TRUMP, in his official capacity as President of the United States, Defendant. |
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.
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 ().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).
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.
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...
To continue reading
Request your trial