Jeffrey Lovitky v. Donald Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2019 Decided February 11, 2020

No. 19-5199

JEFFREY A. LOVITKY,

APPELLANT

v.

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(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.

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Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Ethics in Government Act

requires public officials, including the President, to 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 Government Act of 1978

(“Ethics Act”), 5 U.S.C. app. 4, to “increase public confidence

in the federal government, demonstrate the integrity of

government officials, deter conflicts of interest, deter

unscrupulous persons from entering public service, and

enhance the ability of the citizenry to judge the performance of

public officials.” United States v. Oakar, 111 F.3d 146, 148

(D.C. Cir. 1997) (citing S. REP. NO. 95-170, at 21–22 (1978)).

To that end, the Ethics Act requires specified government

officials and candidates for public office to periodically

disclose information such as their income, gifts received,

property interests, liabilities, real estate and securities

transactions, positions held, and the value of a qualified blind

trust. See 5 U.S.C. app. 4 §§ 101–103.

The President must file a financial disclosure report with

the Director of the Office of Government Ethics (“OGE”) by

May 15 of each year. Id. §§ 101(d), 101(f)(1), 103(b). The

President is required to make “a full and complete statement

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with respect to,” among other information, the “identity and

category of value of the total liabilities owed to any creditor . . .

which exceed $10,000 at any time during the preceding

calendar year.” Id. § 102(a). The President must also disclose

liabilities owed by the President’s spouse or dependent

children. Id. § 102(e)(1)(E). But the President need not report

liabilities owed to immediate family members, certain loans

secured by personal property, or certain revolving charge

account liabilities. Id. § 102(a)(4).

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.” 5 C.F.R. § 2634.305(a). The report must “designate

the category of value of the liabilities in accordance

with § 2634.301(d),” which lists valuation categories ranging

from none to greater than $50 million. See id. §§ 2634.305(a),

2634.301(d).

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

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business, unless those interests are unrelated to the operations

of the business.” 2016 Guide at 268. The Guide further

advised that

What constitutes “unrelated” will vary based on

the specific circumstances; however, the

following general guidelines apply: . . .

Businesses that are not publicly traded: One

needs 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

payable, working capital funds, real estate used

in the operations of the business, or any

mortgages on such real estate.

Id. In December 2018, OGE published an updated Public

Financial Disclosure Guide applicable to disclosure reports

filed after January 1, 2019. U.S. Office of Gov’t Ethics, Public

Financial Disclosure Guide at 1 (2018) (“2018 Guide”). Under

the heading “Other Liabilities That Are Not Reportable,” the

2018 Guide instructed filers that

You do not need to report the following

liabilities in Part 8: . . .

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• 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).

Id. at 209.

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 5 U.S.C. app. 4 § 106; 5 C.F.R. § 2634.605.

When reviewing the report, the “[d]isclosures will be taken at

‘face value’ as correct, unless there is a patent omission or

ambiguity or the official has independent knowledge of matters

outside the report.” 5 C.F.R. § 2634.605(b)(3). The reviewing

official, such as the OGE Director, “shall refer to the Attorney

General the name of any individual [who the reviewing official

has] reasonable cause to believe has willfully failed to file a

report or has willfully falsified or willfully failed to file

information required to be reported.” 5 U.S.C. app. 4 § 104(b).

The Ethics Act empowers the Attorney General to “bring a civil

action . . . against any individual who knowingly and willfully

falsifies or who knowingly and willfully fails to file or report

any information that such individual is required to report

pursuant to section 102,” and allows for civil penalties of up to

$50,000. Id. § 104(a)(1). In addition, the Ethics Act

criminalizes the knowing and willful falsification or failure to

report information required to be reported under section 102.

Id. § 104(a)(2). The parties agree that Lovitky does not assert

a private cause of action under the Ethics Act in this case, and

the court accepts that assumption for purposes of this decision.

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See Appellee Br. 4; Reply Br. 11; Oral Arg. Rec. at 2:25–2:42.

Financial disclosure reports must be made available to the

public upon written application. 5 U.S.C. app. 4 §§ 105(a),

(b)(2). The Office of Government Ethics also publishes the

President’s financial disclosure reports on its website without

requiring a 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

presidency 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

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by obscuring liabilities on his May 2018 and May 2019

financial disclosure reports.

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.

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Lovitky contends that President Trump’s alleged

violations of the Ethics Act “deprived” him of the “opportunity

to make an independent judgment as to the integrity of the

President” and of the “information required to evaluate the past

and future performance of the President.” Id. ¶ 6. Lovitky

alleges that the improper disclosures will preclude him from

making informed voting decisions in the 2020 presidential

primary and general elections. To remedy these alleged

violations, Lovitky asks the district court to issue injunctive

and mandamus-type relief directing the President to amend his

May 2018 and May 2019 financial disclosure reports to

identify his personal liabilities, along with a declaratory

judgment that the President violated the Ethics Act and

accompanying regulations.

President Trump moved in the district court to dismiss the

complaint for lack of subject matter jurisdiction, FED. R. CIV.

P. 12(b)(1), and failure to state a claim, FED. R. CIV. P.

12(b)(6). The district court granted the motion, dismissing

Lovitky’s suit on two independent jurisdictional grounds. See

Lovitky v. Trump, No. CV 19-1454 (CKK), 2019 WL 3068344,

at *1 (D.D.C. July 12, 2019). First, the district court found that

although Lovitky had alleged an injury in fact, he had not

satisfied the constitutional standing requirements because his

alleged injury was not redressable by a federal court, reasoning

that the court could not issue mandamus, injunctive, or

declaratory relief against a sitting President. Id. at *8, *10.

Second, the district court found that it did not have subject

matter jurisdiction to hear Lovitky’s claims because he had not

established the elements of mandamus jurisdiction. Id. at *10.

The court added that if it had not dismissed the case on

jurisdictional grounds, it would have refused to exercise its

discretion to grant equitable or declaratory relief against the

President. Id. at *15.

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III.

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: 28 U.S.C. § 2201 (declaratory judgment), 28

U.S.C. § 1331 (federal question), and 28 U.S.C. § 1361

(mandamus). The court can easily dispense with the first two

statutes as sources of jurisdiction before turning to the third.

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As this court explained in Lovitky’s prior lawsuit, the

declaratory judgment statute, 28 U.S.C. § 2201, “is not an

independent source of federal jurisdiction.” Lovitky, 918 F.3d

at 161 (internal quotation omitted). “Rather, the availability of

declaratory relief presupposes the existence of a judicially

remediable right.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C.

Cir. 2011) (internal quotations and alterations omitted). Thus,

“[r]esort to the Declaratory Judgment Act will not fill a gap in

subject matter jurisdiction.” 14 Helen Hershkoff, Federal

Practice & Procedure § 3655 (4th ed. 2019).

Next, Lovitky has offered no support for his bare assertion

that the federal question statute, 28 U.S.C. § 1331, provides for

jurisdiction for the court to hear his lawsuit. This court has

previously explained that “a request for an injunction based on

the general federal question statute is essentially a request for

a writ of mandamus in this context, where the injunction is

sought to compel federal officials to perform a statutorily

required ministerial duty.” Swan v. Clinton, 100 F.3d 973, 976

n.1 (D.C. Cir. 1996) (citing Nat’l Wildlife Fed’n v. United

States, 626 F.2d 917, 918 n.1 (D.C. Cir. 1980)). Moreover, in

his reply brief and at oral argument, Lovitky conceded that he

asserts no cause of action other than the Mandamus Act. See

Reply Br. at 11; Oral Arg. Rec. at 2:25–2:42. Therefore,

neither can the federal question statute alone serve as the source

of federal jurisdiction. Cf. Lovitky, 918 F.3d at 161–62.

That leaves only the Mandamus 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.” 28 U.S.C. § 1361. The statute uses the term “in the

nature of mandamus” because “Rule 81(b) of the Federal Rules

of Civil Procedure long ago abolished the writ of mandamus in

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the district courts,” although it “permitted ‘[r]elief heretofore

available by mandamus’ to be obtained by actions brought in

compliance with the rules.” In re Cheney, 406 F.3d 723, 728–

29 (D.C. Cir. 2005) (en banc) (quoting FED. R. CIV. P. 81(b)).

“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 § 1361 merges with the

merits.” In re Cheney, 406 F.3d at 729; see also 14 Helen

Hershkoff, Federal Practice & Procedure § 3655 (4th ed.

2019) (“As many lower courts have recognized, whether

jurisdiction exists under Section 1361 ‘is intertwined with the

merits’ because the existence of a legal duty owed to the

plaintiff is critical to whether adjudicative power is present.”).

Such “jurisdictional statutes speak to the power of the court

rather than to the rights or obligations of the parties,” Landgraf

v. USI Film Prods., 511 U.S. 244, 274 (1994) (internal

quotation omitted), an exception to the ordinary rule that “[t]he

question whether a federal statute creates a claim for relief is

not jurisdictional,” Nw. Airlines, Inc. v. Cty. of Kent, 510 U.S.

355, 365 (1994).

“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 mandamus 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

12

quotation and alteration omitted). Ultimately, the “party

seeking mandamus has the burden of showing that its right to

issuance of the writ is clear and indisputable.” Power, 292 F.3d

at 784 (internal quotations omitted).

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 5

U.S.C. app. 4 § 102(a)(4). Lovitky contends that the statute

“obviously refers to liabilities of the filer, as opposed to

liabilities of some unidentified third party.” Appellant’s Br.

39. But the text of the Act does not clearly direct filers to

disclose only their “personal liabilities.” Nor does the text

clearly prohibit filers from listing debts for which they are not

personally responsible. To the contrary, the Ethics Act requires

filers to report some liabilities for which they are not personally

13

liable, such as certain debts owed by their spouse or dependent

children. See 5 U.S.C. app. 4 § 102(e)(1)(E). In addition, the

2016 version of the OGE Guide advised filers that they must

report “liabilities of a trade or business . . . unrelated to the

operations of the business,” for which the filer would not

necessarily be personally liable. 2016 Guide at 268.

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,

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public officials disclosing liabilities owed by entities they

control could promote the statute’s purposes of deterring

potential conflicts of interest and helping citizens judge the

performance and integrity of those officials. See S. REP. NO.

95-170, at 21–22 (1978). In sum, Lovitky has not met the “high

threshold,” Cook, 594 F.3d at 891, needed to show that the

President’s reading of the Ethics Act is absurd.

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.”

5 C.F.R. § 2634.305(a). And the regulations explain that the

term “filer” is “used interchangeably with ‘reporting

individual.’” Id. § 2634.105(g). But like the statute, the

regulations do not prohibit a filer from disclosing more than

what is required or direct a filer to differentiate the debts. Thus,

the regulations do not create a clear and indisputable right to

relief.

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 on 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

15

of the business.” 2016 Guide at 268. Thus, OGE itself advised

filers to report at least some non-personal liabilities. The 2018

version of the Guide (applicable to 2019 disclosures) provided

different advice, telling filers that they “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).” 2018 Guide at 209. Although both

versions of the Guide counseled filers that they were not

required to report certain non-personal liabilities, neither Guide

forbade filers from doing so nor mandated that filers

specifically identify personal liabilities as distinct from non-

personal liabilities.

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”

1

A Welcome page (on which this “Disclaimer” appears in the

2016 version of the Guide) for the 2018 Guide has not been

included in the Joint Appendix and the court is unaware

whether this same disclaimer was provided in the later version.

16

of liabilities, arguing that it “most certainly encompasses a duty

to specifically identify personal liabilities when they are

commingled with non-personal liabilities.” Appellant’s Br. 41

(citing 5 U.S.C. app. 4 § 102(b)(1)). Similarly, Lovitky

contends that the President’s certification of his financial

disclosures as “true, complete and correct” and the requirement

that reviewing officials take the disclosures at face value

impose an identification duty. But Lovitky provides no support

for these arguments, other than his interpretation of the statute.

The “full and complete” provision does not clearly prohibit

filers from disclosing non-personal liabilities or require them

to differentiate such liabilities from their personal liabilities.

To the contrary, particularly in view of the 2016 Guide’s advice

to disclose some business debts, it provides at least a plausible

reason for a prudent filer to err on the side of over-disclosure if

doubtful about whether liabilities of corporate entities must be

reported. Likewise, the certification and face value standard

do not impose a clear duty to separate personal from non-

personal debts.

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 5 U.S.C. app. 4 § 102(a). To the

contrary, as discussed, the Act neither clearly prohibits filers

from commingling liabilities nor directs them to differentiate

the types of liabilities.

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Finally, Lovitky argues that President Trump’s alleged

commingling of liabilities “frustrate[s]” the “basic purposes of

the statute” because “a non-personal liability of a business

entity may have little or no influence on official decision-

making.” Appellant’s Br. 42–43. This argument, however,

confronts only one stated goal of the Act (deterring conflicts of

interest) and ignores the others (e.g., increasing public

confidence in the federal government and demonstrating the

integrity of government officials). See Oakar, 111 F.3d at 148.

More fundamentally, whether the purposes of the statute are

best served by requiring, permitting, or forbidding non-

personal liabilities from being disclosed without differentiation

is a policy judgment that requires balancing competing

interests, a task entrusted to Congress. See, e.g., Diamond v.

Chakrabarty, 447 U.S. 303, 317–18 (1980). As one example,

Congress decided that filers need not expressly differentiate

between their own debts and debts of their spouses. The

potential frustration of the statutory purposes does not make

President Trump’s alleged violation “so plainly prescribed as

to be free from doubt and equivalent to a positive command.”

See Consol. Edison Co. of N.Y., Inc. v. Ashcroft, 286 F.3d 600,

605 (D.C. Cir. 2002) (internal quotation omitted).

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

18

its face,” because the “statute does not prohibit [a filer] from

listing additional liabilities.” Id. at 25:31–27:22. In response,

Lovitky argued that a filer who “obscures the information that

he was required to report” by disclosing more than the Act

requires has “fundamentally not complied with the statute.” Id.

at 30:22–30:50. The court need not resolve how it would

handle this hypothetical situation, however, because Lovitky

has not alleged that it is presented here. But Lovitky has

highlighted a potential for mischief. Although the courts lack

jurisdiction to order the relief Lovitky seeks, he may, of course,

use the political process to press for legislative or regulatory

reforms.

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.