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.
2
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
3
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
4
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: . . .
5
• 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.
6
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
7
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.
8
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.
9
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.
10
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
11
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,
14
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.
17
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.