Jeffrey Lovitky v. Donald Trump , 918 F.3d 160 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2018 Decided March 15, 2019
No. 18-5105
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. 1:17-cv-00450)
Jeffrey A. Lovitky argued the cause and filed the briefs for
appellant.
Matthew J. Glover, Counsel to the Assistant Attorney,
U.S. Department of Justice, argued the cause for appellee.
With him on the brief were Mark B. Stern and Michael Shih,
Attorneys.
Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Officers of the United
States swear to “faithfully discharge the duties of the[ir]
office.” 5 U.S.C. § 3331; see also U.S. Const. art. II, § 1, cl. 8
(requiring the President to swear that he “will faithfully execute
the Office of the President”). When they fall short, the
Mandamus Act offers relief; it vests district courts with
jurisdiction over “any action in the nature of mandamus to
compel an officer or employee of the United States . . . to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The
question here is whether the Act extends to duties pertaining
not to an officer’s public office, but to his pre-election (or pre-
appointment) acts. We hold that it does not.
* * *
This case concerns a dispute about a then-presidential
candidate’s financial disclosure report. Under the Ethics in
Government Act of 1978, candidates for certain offices,
including the Presidency, must file financial disclosures with
the Federal Election Commission. 5 U.S.C. app. § 103(e).
Subject to some limitations, a presidential candidate’s financial
disclosure “shall include a full and complete statement with
respect to,” among other things, the “identity and category of
the total liabilities owed to any creditor.” Id. § 102(a)(4).
Plaintiff Jeffrey Lovitky, appellant here, alleges that, as a
presidential candidate, Donald J. Trump filed a financial
disclosure report with the FEC on May 16, 2016. Compl. ¶ 13,
J.A. 11; see J.A. 28–131. Part 8 of this disclosure listed 16
financial liabilities, identifying each creditor, and describing
the nature and terms of each liability. Compl. ¶ 16, J.A. 12; see
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J.A. 84. The “appropriate reviewing officials” (see generally 5
U.S.C. app. § 106; 5 C.F.R. § 2634.605) determined that
candidate Trump’s disclosures were “in apparent compliance
with the disclosure requirements of the Ethics in Government
Act.” Compl. ¶ 13, J.A. 11; see J.A. 28.
Lovitky sees non-compliance. He alleges that then-
candidate Trump’s financial disclosure included both personal
and business liabilities, Compl. ¶¶ 37–42, J.A. 18–19, and that
this violated the Ethics in Government Act, which, Lovitky
argues, “requires disclosure of only those liabilities for which
candidates are themselves liable . . . or for which the spouse or
dependent child of the candidate are liable,” id. ¶ 24, J.A. 15;
see also id. ¶¶ 43–44, 46, J.A. 19–20. Candidate Trump,
Lovitky contends, “obscured his liabilities by commingling
them with the liabilities of business entities.” Appellant’s Br.
11.
Lovitky brought suit in the district court for the District of
Columbia, seeking “relief in the nature of mandamus, directing
[now-President Trump] to amend his financial disclosure
report” so that it “specifically identif[ies] any debts [that then-
candidate Trump] owed.” Compl. 14, J.A. 21.
On April 10, 2018, the district court dismissed, holding
that Lovitky lacked Article III standing because the court could
not “issue the relief that [he] request[ed]” and thus could not
“redress [his] grievance.” Lovitky v. Trump, 308 F. Supp. 3d
250, 260 (D.D.C. 2018). Lovitky appeals, and we affirm—but
on other grounds.
* * *
We begin (and end) with subject-matter jurisdiction,
without reaching the question of standing. See, e.g., Moms
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Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007)
(“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.”). In his Second
Amended Complaint, Lovitky asserts three bases of federal
subject-matter jurisdiction: 28 U.S.C. § 1331 (federal
question); 28 U.S.C. § 1361 (mandamus); and 28 U.S.C.
§ 2201 (declaratory judgment). Compl. ¶ 3, J.A. 9; see also
Appellant’s Br. 1.
But § 2201 (declaratory judgment) “is not an independent
source of federal jurisdiction.” Metz v. BAE Sys. Tech.
Solutions & Servs. Inc., 774 F.3d 18, 25 n.8 (D.C. Cir. 2014)
(quoting Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)).
And Lovitky makes no effort to challenge the district court’s
finding, see 308 F. Supp. 3d at 260 n.8, that he abandoned
reliance on § 1331 (federal question), thus forfeiting that
possible font of jurisdiction for purposes of this appeal, see
DeJesus v. WP Co., 841 F.3d 527, 532 n.1 (D.C. Cir. 2016).
This leaves the Mandamus Act, which reads in full:
§ 1361. Action to compel an officer of the United States
to perform his duty
The 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 an agency thereof to
perform a duty owed to the plaintiff.
28 U.S.C. § 1361. Lovitky brings this “action . . . to compel”
an individual—namely, President Trump “in his official
capacity.” See Compl. ¶ 2, J.A. 9. We assume, without
deciding, that the President is “an officer” subject to the
Mandamus Act and that the alleged obligation—to provide a
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“full and complete statement” of liabilities, see, e.g., Compl. ¶
44, J.A. 20 (quoting 5 U.S.C. app. § 102(a)(4)); Appellant’s Br.
35 (same)—is one “owed to the plaintiff.” The only question,
then, is whether the obligation sued on, see 5 U.S.C. app.
§ 101(c) (identifying candidates as persons required to file); id.
§ 102(a)(4) (identifying liabilities required to be disclosed), is
a “duty” within the meaning of the Mandamus Act.
It is not. Lovitky has challenged only one of Trump’s
financial disclosure reports—the one filed in May 2016. At
that time, Trump’s obligation to provide a “full and complete
statement” of liabilities arose out of his status as a candidate
for the office of President, as he had not yet been elected. See
5 U.S.C. app. § 101(c) (imposing reporting obligations on
“candidate[s]” for “the office of President . . . other than an
incumbent President”). That makes all the difference. As we’ll
develop below, duties within the meaning of the Mandamus
Act include only those obligations that pertain to a defendant
officer’s (or employee’s) public office. (Because Lovitky
bases his claim on an obligation that was supposedly imposed
by § 101(c), see, e.g., Appellant’s Supplemental Br. 4, we need
not—and do not—express an opinion as to whether other
provisions of the Ethics in Government Act impose a “duty”
within the meaning of the Mandamus Act.)
True, if read in isolation, the phrase “a duty owed to the
plaintiff,” 28 U.S.C. § 1361, could—at least in theory—mean
any “tasks” that any officer of the United States happens to be
“obligat[ed]” to perform—whether by statute, private contract,
or (perhaps) even “feeling[s]” of “moral obligation,” Webster’s
Third New International Dictionary 705 (1981).
But the context points to a narrower meaning. See, e.g.,
Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 740
(2017). Here, “duty” is associated (in the text and title of the
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Act) with “officer,” see 28 U.S.C. § 1361—that is, one “who
performs the duties of the office,” Black’s Law Dictionary 977
(5th ed. 1979) (emphasis added); see also Webster’s Third,
supra, at 1567 (defining an “office” as “a special duty, charge,
or position conferred by an exercise of governmental authority
and for a public purpose”). (The word “officer,” we note, is
itself derived from the Latin word officium, meaning “duty.”
Id.). In this context—where a statute links an officer to his
“duty”—the most natural reading of “duty” refers only to those
duties entailed by the office in question.
The statute’s common law background also supports
reading it to require that the duty a plaintiff seeks to compel via
§ 1361 must pertain to a defendant’s public office. “It is a
settled principle of interpretation that, absent other indication,
‘Congress intends to incorporate the well-settled meaning of
the common-law terms its uses.’” Sekhar v. United States, 570
U.S. 729, 732 (2013) (quoting Neder v. United States, 527 U.S.
1, 23 (1999)). By using the terms “action[s] in the nature of
mandamus,” § 1361 invokes the common-law writ of
mandamus. Apart from defendants of no relevance here (i.e.,
common carriers, corporations, and certain public franchises,
see, e.g., S.S. Merrill, Law of Mandamus §§ 25–28, at 23–28
(Chicago, T.H. Flood & Co. 1892)), the subjects of mandamus
under the common law were persons who owed not just any
act, but an act that “appertain[ed] to their office and duty.”
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 745 (D.C. Cir.
1995) (quoting 3 William Blackstone, Commentaries *110);
accord, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147
(1803) (Marshall, C.J.). The common law writ, in other words,
issued “to compel the performance of an act which the law
enjoin[ed] as a duty resulting from an office, trust or station.”
Merrill, supra, § 13, at 7 (emphasis added), cited in Appellant’s
Supplemental Br. 2 & n.3; accord, e.g., N. Pac. R.R. Co. v.
Washington ex rel. Dustin, 142 U.S. 492, 506 (1892); see also,
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e.g., Eberle v. King, 93 P. 748, 753 (Okla. 1908) (“[W]here the
writ is sought to be invoked, the proper inquiry is, does the duty
sought to be enforced clearly result from an office, trust, or
station?”); Merrill, supra, § 23, at 20 (“The rule is, that this writ
will not . . . lie against an officer for acts done in an unofficial
character.”).
Detachment of the duty from the office of the defendant
would lead to serious incongruities. For example, where an
officer is sued in his official capacity, as here, Rule 25(d) of the
Federal Rules of Civil Procedure automatically substitutes as
defendant the official’s successor in office. See, e.g., Nader v.
Saxbe, 497 F.2d 676, 677 n.1 (D.C. Cir. 1974). Acceptance of
Lovitky’s theory would thus, in principle, mean that a public
official could be compelled to perform the personal financial
disclosure duties of his predecessor (and who knows what other
duties)—an exceedingly odd result.
In sum, the Mandamus Act applies only to duties that flow
from a defendant’s public office. And because the alleged duty
here—directed at candidates for public office—lacks that
defining characteristic, the district court had no jurisdiction
under that Act over Lovitky’s claims.
* * *
For the foregoing reasons, the district court’s judgment
dismissing the case is affirmed.
So ordered.