UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEFFREY A. LOVITKY, Plaintiff, v. Civil Action No. 17-450 (CKK) DONALD J. TRUMP, in his official capacity as President of the United States, Defendant.

MEMORANDUM OPINION (April 10, 2018) 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.

1 The Court’s consideration has focused on the following briefing:

• Def.’s Mot. to Dismiss 2d Am. Compl., ECF No. 20 (“Def.’s Mot.”); • Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss 2d Am. Compl., ECF No. 21 (“Pl.’s Opp’n”); • Reply Mem. in Supp. of Def.’s Mot. to Dismiss 2d Am. Compl., ECF No. 24 (“Def.’s Reply”); and • Notice of Suppl. Auth., ECF No. 25 (“Pl.’s Notice”). 1 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, https://www.oge.gov/web/oge.nsf/Presidential%20Candidates?OpenView (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

2 Because this document lacks page numbers, the Court shall refer to the ECF page number when referencing this document below.

2 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

(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.

3 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.

II. LEGAL STANDARDS

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,

(D.C. Cir. 2003) (citations omitted); see also Jerome

Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005) (“[T]he district

4 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,

(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,

(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.,

(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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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,

.

“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,

.

5 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,

, 81 n.2 (D.D.C. 2014) (Kollar-Kotelly, J.), aff’d, 618 Fed. App’x 3

(D.C. Cir. 2015), cert. denied,

(2016). Nonetheless, Plaintiff’s Second Amended

Complaint would be subject to dismissal even if construed as liberally as that of a non-attorney

pro se litigant.

III. DISCUSSION

The Court shall begin by evaluating the “irreducible constitutional minimum” of Plaintiff’s

standing. Swan v. Clinton,

(D.C. Cir. 1996) (quoting Lujan v. Defs. of Wildlife,

(1992)). The redressability prong of this inquiry will involve some

consideration of the standards for mandamus jurisdiction and declaratory relief.

A. Article III Standing

At the threshold, Defendant argues that Plaintiff lacks Article III standing to pursue his

claim against the President. Def.’s Mot. at 6. Standing is an element of the Court’s subject-matter

jurisdiction, and requires, in essence, that a plaintiff have “a personal stake in the outcome of the

controversy.” Warth v. Seldin,

(1975). A plaintiff cannot be a mere bystander

or interested third-party, or a self-appointed representative of the public interest; he or she must

show that the defendant’s conduct has affected them in a “personal and individual way.” Lujan,

n.1. “The law of Article III standing, which is built on separation-of-powers

principles, serves to prevent the judicial process from being used to usurp the powers of the

6 political branches.” Susan B. Anthony List v. Driehaus,

(2014) (internal

quotation marks omitted). The familiar requirements of Article III standing are:

(1) that the plaintiff have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bennett v. Spear,

(1997) (citing Lujan,

); see also Spokeo,

Inc. v. Robins,

(2016).

Plaintiff argues that Defendant’s failure to “specifically identify his liabilities” caused an

“informational injury” that establishes his injury-in-fact. Pl.’s Opp’n at 2. Defendant maintains

that the statutory scheme does not impose on Defendant the alleged obligation to so specify his

liabilities. Def.’s Reply at 15 (“[Plaintiff] cannot establish such an injury here since EIGA does

not actually confer a right to the information Plaintiff seeks—i.e., identification of personal

liabilities in Defendant’s financial disclosure form.”). While Defendant’s motion was pending,

the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued a decision

finding that a nonprofit organization lacked informational injury that could support standing. Elec.

Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity,

(D.C.

Cir. 2017). Plaintiff filed a notice to bring this case to the Court’s attention, Pl.’s Notice, but he

did not take the opportunity to explain whether or how it supports his position. Insofar as the D.C.

Circuit found that the nonprofit “has not suffered the type of harm” against which the relevant

statute guarded,

Plaintiff would seem obliged to distinguish the case if he is to draw any support

from it.

7 The Court need not decide whether Plaintiff’s alleged injury suffices for Article III standing

purposes, because the Court finds that even if there were injury-in-fact, and it were fairly traceable

to Defendant’s conduct, it is clear that Plaintiff’s injury would not be redressable by this Court.

Plaintiff concedes that EIGA does not supply him with a private right of action to sue for

non-compliance with the statutory scheme. See Pl.’s Opp’n at 8 (“[T]he existence of a private

cause of action is not a required element of standing.”); id. at 36 (urging that “Plaintiff has a right

to judicial review, even in the absence of a statutory cause of action”). Rather, he pursues

1) mandamus through a cause of action allegedly available at common law and now authorized as

well by

, 3 and 2) in the alternative, declaratory relief under

(a). 4

. In order to determine redressability, therefore, the Court will need to evaluate

whether Plaintiff can proceed against the President under the mandamus or declaratory judgment

statutes. As this consideration will require some interpretation of the underlying EIGA statutory

scheme, and could ultimately result in dismissal of the action, “[t]o this extent, mandamus

jurisdiction under [28 U.S.C.] § 1361 merges with the merits.” In re Cheney,

(D.C. Cir. 2005). By contrast, the Court shall not need to discuss any aspects of the merits in

resolving the request for declaratory relief.

3 Because Plaintiff has invoked the statute providing generally for mandamus, and in the absence of any argument that the scope of the common law cause of action exceeds the scope of its codification, the Court does not separately consider the ongoing availability of relief at common law. See Pl.’s Opp’n at 38 (arguing that “enactment of

did not eliminate or narrow the scope of the pre-existing common law cause of action in mandamus cases,” without arguing any greater entitlement under the latter). The Court is unaware of any authority indicating that proceeding under the common law cause of action would make any difference in this Court’s holding. 4 Plaintiff does not cite the statutory basis for declaratory relief in his Opposition, but does so in his Second Amended Complaint, ¶ 3. 8 B. Mandamus Jurisdiction

The Court here considers the requirements for mandamus jurisdiction only as part of its

inquiry into the redressability prong of Article III standing. The mandamus statute provides that

“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.”

(2016). Mandamus is a “‘drastic’ remedy, ‘to be invoked only in

extraordinary circumstances.’” Fornaro v. James,

(D.C. Cir. 2005) (quoting Allied

Chem. Corp. v. Daiflon, Inc.,

(1980)). “To show entitlement to mandamus,

plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government

agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy

exists.” Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016). Yet, even when these

jurisdictional requirements are met, “a court may grant relief only when it finds compelling

equitable grounds.”

(quoting In re Medicare Reimbursement Litig.,

(D.C. Cir.

2005)) (internal quotation marks omitted). “The party seeking mandamus has the burden of

showing that its right to issuance of the writ is clear and indisputable.”

(quoting Power v.

Barnhart,

(D.C. Cir. 2002)) (internal quotation marks omitted). As “Rule 81(b)

of the Federal Rules of Civil Procedure long ago abolished the writ of mandamus in the district

courts,” it is more “technically accurate” to refer to “mandamus-type relief” rather than “petitions

for a writ of mandamus.” In re Cheney,

.

As it has observed before, again “[t]he Court doubts it can issue [mandamus-type relief]

compelling the President to act.” Lozansky v. Obama,

(D.D.C. 2012)

(Kollar-Kotelly, J.). The D.C. Circuit has made abundantly clear that it is not inclined to break

ground in granting mandamus-type relief against the President. That court has observed that it has

9 “never attempted to exercise power to order the President to perform a ministerial duty,” Swan,

, which is the type of duty that Plaintiff claims he seeks to enforce, Pl.’s Opp’n at

39-40. See also Newdow v. Roberts,

(D.C. Cir. 2010) (finding that “injunctive

or declaratory relief against all possible President-elects and the President himself” is

“unavailable”). 5

The parties dispute the ongoing validity of certain older D.C. Circuit precedents

recognizing that the courts could issue mandamus against the President as to a ministerial duty.

See Nat’l Wildlife Fed’n v. United States,

(D.C. Cir. 1980); Nat’l Treasury

Emps. Union v. Nixon,

(D.C. Cir. 1974) (“NTEU”). 6 The D.C. Circuit has

indicated “[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good

law after [the Supreme Court’s plurality opinion in Franklin v. Massachusetts,

(1992)].” Swan,

(“For while the Court in Franklin explicitly left open the question

of whether a court may enjoin the President to perform a ministerial duty, it also issued a stern

admonition that injunctive relief against the President personally is an extraordinary measure not

lightly to be undertaken.”). Assuming, arguendo, that they are still valid, NTEU and National

5 The D.C. Circuit also has observed that analysis of whether injunctive, mandamus, or declaratory relief against the President is available follows similar lines. See Swan,

n.1 (“Although the following discussion is couched in terms of our ability to grant injunctive relief against the President, similar considerations regarding a court’s power to issue relief against the President himself apply to Swan’s request for a declaratory judgment. In addition, we note 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, and that the declaratory judgment statute does not constitute an independent grant of jurisdiction.” (citations omitted)). 6 In neither case did the D.C. Circuit actually issue such relief. See NTEU,

(recognizing authority to issue mandamus but finding it “most appropriate” to “opt instead” to issue declaratory relief); Nat’l Wildlife Fed’n,

(exercising discretion not to issue mandamus or declaratory judgment). 10 Wildlife could support Plaintiff’s assertion of mandamus jurisdiction only if Defendant’s

compliance with his disclosure obligations was a “ministerial” duty, which the Court presently

shall consider.

“A ministerial duty is one that admits of no discretion, so that the official in question has

no authority to determine whether to perform the duty.” Swan,

(citing, e.g.,

Mississippi v. Johnson,

(1866) (“a ministerial duty . . . is one in respect

to which nothing is left to discretion”)). Plaintiff’s argument that “disclosure of the specific loans

for which the President is liable” is a “ministerial duty,” Pl.’s Opp’n at 39, is not facially plausible.

The EIGA does not specify that only personal liabilities are to be listed, and it does not expressly

prohibit the listing of non-personal business liabilities. Defendant argues that he therefore did not

have a ministerial duty, but rather had the discretion to choose how he would comply with the

EIGA’s requirements. See Def.’s Mot. at 14 (refuting argument of “non-discretionary duty”);

Def.’s Reply at 8 (disputing Plaintiff’s argument that “his case is distinguishable because he is

seeking to compel performance of a non-discretionary, ministerial duty”).

It is true that “a ministerial duty can exist even ‘where the interpretation of the controlling

statute is in doubt,’ provided that ‘the statute, once interpreted, creates a peremptory obligation for

the officer to act.’” Swan,

(quoting 13th Regional Corp. v. U.S. Dep’t of the

Interior,

(D.C. Cir. 1980)). But, as stated above, 5 U.S.C. app. 4 § 102(a) and

do not on their face give any indication of a requirement that Defendant do

as Plaintiff wants, nor do they establish that Plaintiff has a “clear and indisputable” right to force

Defendant to do so. 7 The Court therefore need not entertain Plaintiff’s arguments about the policy

7 Plaintiff also makes an argument that Defendant contravened the instructions on the OGE Form 278e. Specifically, he says that Defendant should have written “None” if he had “no reportable liabilities.” Pl.’s Opp’n at 27. But that is not what the instructions say. The instructions indicate 11 intent of Congress. Gen. Elec. Co. v. E.P.A.,

(D.C. Cir. 2004) (“[W]hen the

statutory text is straightforward, there is no need to resort to legislative history.”). Even if the

Court were obligated to examine the legislative history, Plaintiff’s various citations do not

evidence a congressional desire to prohibit Defendant from listing non-personal liabilities in an

exercise of his discretion. See Pl.’s Opp’n at 24-26 (citing, e.g., S. Rep. No. 95-170, 95th Cong.,

2d Sess. (1977), p. 119 (“an owner of an interest in a corporation need not list a loan on which he

is not personally liable” (emphasis added)). And Plaintiff cites no case law for the specific

proposition that Defendant has a ministerial duty to specify his personal liabilities in complying

with EIGA. “The distinction between discretionary and ministerial duties is . . . critical in this case

because the courts do not have authority under the mandamus statute to order any government

official to perform a discretionary duty.” Swan,

. Plaintiff seeks a favorable

exercise of Defendant’s discretion to determine how he wanted to comply with EIGA’s Part 8; the

Court is without power to compel a decision in Plaintiff’s favor. If Defendant chose to disclose

more than strictly necessary, that would not be unlawful on the basis of any provision that Plaintiff

cites.

In light of controlling precedent, the Court would hesitate to issue mandamus even if

Defendant’s duty to specifically disclose personal liabilities were ministerial, but because the

Court has found that it is a discretionary duty, the Court cannot do so. Because the Court is unable

that the filer should “write ‘None’” “if you do not have anything to report.” Def.’s Ex. 1, ECF No. 20-1, at 3. Defendant evidently had something to report, otherwise presumably he would have written “None.” Even if Plaintiff had accurately characterized the instructions, it is important to note that Defendant is not asserting that he had no reportable personal liabilities. Were Plaintiff correct that non-personal liabilities should be disaggregated, Defendant still would not have written “None” because he evidently had some personal liabilities to list. Cf. Def.’s Reply at 13 (“[T]here is no express representation in the form that all liabilities listed are personal ones; nor is such a representation implied, because a financial disclosure report may lawfully contain both personal and non-personal liabilities.”). 12 to redress any injury-in-fact that Plaintiff may have, Plaintiff lacks standing to seek mandamus-

type relief against Defendant.

***

Plaintiff’s remaining arguments are without merit. Here, the Court shall address only a

few. Leaving aside the finding that mandamus cannot issue against the President in this case,

Plaintiff’s argument that Defendant has a duty to Plaintiff that could support mandamus likewise

fails. See Pl.’s Opp’n at 6-7. The EIGA provides for the filer’s duties to the FEC and OGE but

not to the public; the only pertinent duty owed to Plaintiff is OGE’s duty to provide a copy of the

filer’s report upon a request meeting the appropriate conditions. See 5 U.S.C. app. 4 §§ 103(c),

(e); 105(b). “Plaintiff is conflating the public’s right to access executed reports (which is explicitly

codified in EIGA) with a public right to seek a court order compelling a filer to amend or

supplement the contents of a financial disclosure report (which is not codified or even suggested

in EIGA).” Def.’s Reply at 8-9. Only if Plaintiff had a clear and indisputable right and the

President owed a duty to him would the Court need to pass on the adequacy of any alternative

remedy, and ultimately whether “compelling equitable grounds” warranted an exercise of the

Court’s discretion to grant mandamus.

The Court also observes that the implications that Plaintiff circuitously draws about

“unrelated business liabilities,” see generally Pl.’s Opp’n at 30-36, are inapposite. Plaintiff argues

in effect that OGE guidance did require reporting of a defined set of unrelated business liabilities,

but because “none of the business liabilities listed in Part 8 were unrelated to the operations of that

business entity,” Defendant should not have reported any liabilities (here, business liabilities)

except personal liabilities. See id. at 30-34. The Court has found that the applicable statutory and

regulatory provisions do not prohibit the President from disclosing non-personal liabilities together

13 with his personal liabilities. Plaintiff’s discussion of the OGE guidance does not alter that

assessment, nor save Plaintiff from its consequences.

In response to the parties’ various points about enforcement, the Court notes that the

statutory scheme is not without mechanisms for holding the putative errant filer to account. The

Attorney General has authority to sue for certain false or deficient reports provided that the filer

had the requisite scienter. 5 U.S.C. app. 4 §§ 104(a). Moreover, OGE has a role in reviewing

submitted reports and can refer a filer whom OGE has “reasonable cause to believe” fits the

aforementioned profile to the Attorney General for prosecution. Id. § 104(b). There is no

indication that either OGE or the Attorney General sought enforcement in this case.

C. Declaratory Relief

As it did with mandamus jurisdiction, the Court also considers declaratory relief only to

the extent necessary to determine whether Plaintiff’s grievance is redressable and consequently

accords him standing. The Declaratory Judgment Act provides that

In a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

(a) (2016). As the use of the word “may” suggests, “[t]his language is permissive,

not mandatory: even when a suit otherwise satisfies subject matter jurisdictional prerequisites, the

Act gives courts discretion to determine ‘whether and when to entertain an action.’” Swish Mktg.,

Inc. v. FTC,

(D.D.C. 2009) (quoting Wilton v. Seven Falls Co.,

(1995)). See also MedImmune, Inc. v. Genentech, Inc.,

(2007)

(observing that the Declaratory Judgment Act “has long been understood ‘to confer on federal

14 courts unique and substantial discretion in deciding whether to declare the rights of litigants’”)

(quoting Wilton,

).

As noted above, some older D.C. Circuit precedent recognizes that declaratory relief can

be issued against the President. See NTEU,

(declaring “constitutional duty” of

President to issue pay increase to certain public employees pursuant to legislation). But as also

indicated, the D.C. Circuit has subsequently questioned whether this case law remains valid after

Franklin. See Swan,

. And as of 2010, the D.C. Circuit opined that “a court—

whether via injunctive or declaratory relief—does not sit in judgment of a President’s executive

decisions.” Newdow,

(emphasis added) (citing Mississippi,

(quoting Chief Justice John Marshall for the proposition that “enforc[ing]” presidential

performance is “‘an absurd and excessive extravagance’”)); Swan,

n.1. That

assertion in Newdow followed the court’s distinguishing of a Supreme Court case that found

standing in a challenge to a President’s statutory power, but did not concern his executive

decisions. Newdow,

(citing Clinton v. City of New York,

(1998)).

Moreover, it is not clear that the Court even would have jurisdiction to grant declaratory

relief, for “the declaratory judgment statute does not constitute an independent grant of

jurisdiction,” Swan,

n.1. If NTEU is still valid, the D.C. Circuit has indicated that

the mandamus statute is a possible jurisdictional hook for a grant of declaratory judgment. See

NTEU,

(“[B]ecause in this case subject matter jurisdiction is present under section

1361, this Court [i.e., the D.C. Circuit] may utilize the tool of declaratory relief.”). But because

this Court has found that Plaintiff may not avail himself of mandamus jurisdiction, and because

15 Plaintiff does not presently argue any other basis for jurisdiction, 8 the Court finds that Plaintiff has

not proven by a preponderance of the evidence that the Court has subject-matter jurisdiction over

his request for a declaratory judgment.

IV. CONCLUSION

For the foregoing reasons, the Court finds that it cannot issue the relief that Plaintiff

requests in this case, and accordingly cannot redress Plaintiff’s grievance. Because Plaintiff lacks

Article III standing, the Court hereby GRANTS Defendant’s [20] Motion to Dismiss the Second

Amended Complaint and DISMISSES this case.

An appropriate Order accompanies this Memorandum Opinion.

Dated: April 10, 2018

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

8 In his Second Amended Complaint, Plaintiff asserts jurisdiction not only pursuant to the mandamus and declaratory judgment statutes but also pursuant to

, which provides for general federal question jurisdiction. 2d Am. Compl., ECF No. 21, ¶ 3. However, Plaintiff does not mention federal question jurisdiction anywhere in his Opposition to Defendant’s Motion to Dismiss. In light of this omission, and because Plaintiff concedes that EIGA does not provide for a private right of action, as the Court discusses above, the Court considers Plaintiff to have conceded any argument that he can sue purely on the basis of a federal question. 16