Case 0:17-cv-61490-RLR Document 10 Entered on FLSD Docket 09/26/2017 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-61490-CIV-ROSENBERG

PATRICK GOGGINS,

Plaintiff,
vs.

DONALD J. TRUMP, as
PRESIDENT OF THE UNITED STATES.,

Defendant.
___________________________________/

DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT FOR

DECLARATORY RELIEF

Defendant, Donald J. Trump, President of the United States, by and through the

undersigned Assistant United States Attorney and pursuant to Rules 12(b)(1) and 12(b)(6), Federal

Rules of Civil Procedure, moves to dismiss the Amended Complaint for Declaratory Relief filed

by Plaintiff, Patrick Goggins.

INTRODUCTION

Plaintiff filed this lawsuit in the Seventeenth Judicial Circuit Court in and for Broward

County, Florida. Defendant removed the action to this Court on July 26, 2017. In his Amended

Complaint, Plaintiff alleges that, while serving as President of the United States, Defendant Donald

J. Trump maintains a significant present ownership interest in the Trump Organization, a series

of interconnected business entities. Pursuant to Floridas Declaratory Judgment Act, 86.011,

Florida Statues, Plaintiff brought this action seeking a declaration as to whether any monies paid

to the Trump Organization during President Trumps term in office violate Article 2, Section 1,
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Clause 7 of the United States Constitution, i.e., the Domestic Emoluments Clause. See Am. Compl.

at p. 3. The Domestic Emoluments Clause provides that the President shall . . . receive for his

Services, a Compensation . . . and he shall not receive . . . any other Emolument from the United

States, or any of them. U.S. Const. art II, 1, cl. 7.

As explained below, the Court lacks jurisdiction over this action because Plaintiff fails to

allege any injury and, therefore, lacks Article III standing to bring suit. Similarly, by failing to

allege any actual controversy between himself and the President, Plaintiff has failed to state a claim

upon which relief may be granted. Finally, the relief Plaintiff seeks is unconstitutional. The

Supreme Court has long held that courts have no power to grant injunctive or declaratory relief

against the President in an official capacity suit.

ARGUMENT

I. Plaintiff Lacks Article III Standing

Plaintiff alleges no injury whatsoever and therefore lacks standing to bring suit. Article III

of the U.S. Constitution provides that the judicial power of federal courts extends only to actual

cases or controversies. Spokeo, Inc. v. Robins, 136 S.Ct.1540, 1547 (2016) (quoting Raines v.

Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Standing to sue is a doctrine

rooted in the traditional understanding of a case or controversy. Id. [T]he irreducible

constitutional minimum of standing consists of three elements. Id. (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 559560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must

have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. (citing Lujan

at 560561, 112 S.Ct. 2130; and Friends of the Earth, Inc. v. Laidlaw Environmental Services
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(TOC), Inc., 528 U.S. 167, 180181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). A plaintiff bears the

burden of establishing these elements. Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110

S.Ct. 596, 107 L.Ed.2d 603 (1990). At the pleading stage, the plaintiff must clearly ... allege facts

demonstrating each element. Id. (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45

L.Ed.2d 343 (1975)).

To establish injury in fact, a plaintiff must show that he or she has suffered an invasion

of a legally protected interest that is concrete and particularized and actual or imminent, not

conjectural or hypothetical. Id. at 1548 (quoting Lujan, 504 U.S. at 560). Specifically, the injury

must affect the plaintiff in a personal and individual way and must be real not abstract. Id.

This is to ensure that the legal questions presented to the court will be resolved, not in the rarified

atmosphere of a debating society, but in a concrete factual context conducive to a realistic

appreciation of the consequences of judicial action. Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). In this case, Plaintiff does not

allege any injury whatsoever, let alone an injury that is concrete and particularized and actual

or imminent.

Although the Federal Rules pleading standard does not require detailed factual allegations,

there still must be some concrete allegations as to the nature of the harm. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). The Amended

Complaint is devoid of any such allegations. Instead, it raises only a question: whether the

President has violated the Domestic Emoluments Clause. Am. Compl. 5. As such, Plaintiff

has failed to establish the injury-in-fact requirement for Article III standing

Plaintiff has also failed to satisfy the second and third requirements for Article III standing,

i.e., traceability and redressability. As discussed above, Plaintiff does not allege an injury at all;
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in fact, he does not even allege that the President has violated the Domestic Emoluments Clause.

As such, there can be no reasonable inference that he has met the redressability and traceability

prongs of the standing requirements. Thus, Plaintiffs Amended Complaint is merely seeking an

advisory opinion prohibited under Article III. Church v. City of Huntsville, 30 F.3d 1332, 1335

(11th Cir.1994) (Absent a redressable injury, a judicial determination of plaintiff's claim would

amount to an advisory opinion prohibited by Article III's case and controversy requirement.).

The Amended Complaint should be dismissed accordingly. 1

II. Plaintiff Fails to State a Claim Under the Federal Declaratory Judgment Act

Plaintiffs sole cause of action is for a declaratory judgment under Floridas Declaratory

Judgment Act, Fla. Stat. 86.011. Florida's Declaratory Judgment Act . . . is a procedural

mechanism that confers subject matter jurisdiction on Florida's circuit and county courts; it does

not confer any substantive rights. Coccaro v. Geico General Ins. Co., 648 Fed. Appx. 876, 880

(11th Cir. 2016) (citations omitted). Consequently, federal courts construe removed claims under

the Florida Declaratory Judgment Act as though they were brought under the federal Declaratory

Judgment Act, 28 U.S.C. 2201. See id. at 882. See, e.g., Incredible Investments, LLC v.

Fernandez-Rundle, 984 F.Supp.2d 1318 (S.D. Fla. 2013). Just as Plaintiff failed to establish

standing by failing to allege an injury, Plaintiff has failed to state a claim under the federal

1
Lest there be any doubt, Plaintiffs assertion that he is entitled to relief in this court because he
is a member of The Florida Bar, a resident of Broward County, Florida, [] a citizen of the United
States of America (Am. Compl. at p.2) does not establish his standing to sue. Plaintiff provides
no indication that his status as a member of the Bar or a resident of Broward County is affected in
any way by the issues in this action, and it has long been held that ones status as a taxpayer is
generally not enough to establish standing to challenge an action taken by the Federal
Government. Hein v. Freedom From Religion Foundation, 551 U.S. 587, 593 (2007).
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Declaratory Judgment Act by failing to allege any actual controversy between himself and the

President.

The federal Declaratory Judgment Act, 28 U.S.C. 2201, provides that [i]n a case of

actual controversy within its jurisdiction ... any court of the United States, upon the filing of an

appropriate pleading, 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. 28 U.S.C. 2201.

The federal Declaratory Judgment Act thus echoes the case or controversy requirement of

Article III of the Constitution (discussed in I, above), and provides that a declaratory judgment

may only be issued in the case of an actual controversy. Emory v. Peeler, 756 F.2d 1547, 1551

52 (11th Cir.1985). A plaintiff seeking declaratory relief must allege facts from which it appears

there is a substantial likelihood that he will suffer injury in the future. Malowney v. Fed.

Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir.1999) (citing City of Los Angeles v. Lyons,

461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). More importantly, the Supreme

Court has long considered the operation of the Declaratory Judgment Act to be only

procedural, leaving substantive rights unchanged, Medtronic, Inc. v. Mirowski Family

Ventures, LLC, 134 S. Ct. 843, 849, 187 L. Ed. 2d 703 (2014) (citations omitted). The

Declaratory Judgment Act does not allow federal courts to give advisory rulings . . . before a cause

of action has even accrued. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 142 (2007).
2
Accordingly, the plaintiff cannot invoke the Declaratory Judgment Act here.

2
The outcome would be the same under Floridas Declaratory Judgment Act. To properly
invoke jurisdiction under that statute, the party seeking a declaration must show that he is in doubt
as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he
is entitled to have such doubt removed. X Corp. v. Y Person, 622 So.2d 1098, 1100 Fla. 2d DCA
1993) (citing Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So.2d 1020 (Fla. 2d
DCA1979)) (emphasis added). In this regard, the plaintiff must show a bona fide, actual,
present, and practical need for the declaration. Id. (citing Platt v. General Dev. Corp., 122 So.2d
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III. The Relief Plaintiff Seeks is Unconstitutional

Declaratory relief against the President in his official capacity is unconstitutional. In

Mississippi v. Johnson, the Supreme Court held it had no jurisdiction of a bill to enjoin the

President in the performance of his official duties. 71 U.S.475, 50001 (1866) (The Congress is

the legislative department of the government; the President is the executive department. Neither

can be restrained in its action by the judicial department.). 3 A plurality of the Court later

reiterated that principle in Franklin v. Massachusetts. See 505 U.S. at 80203 (In general, this

court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.)

(quoting Mississippi, 71 U.S. at 501). Concurring in Franklin, Justice Scalia explained that, under

Mississippi, courts may impose neither injunctive nor declaratory relief against the President in his

official capacity. Id. at 82728 (noting that such principle is a functionally mandated incident of

the Presidents unique office, rooted in the constitutional tradition of the separation of powers and

50 (Fla. 2d DCA1960), cert. dismissed, 129 So.2d 143 (Fla.1961)). Plaintiff here has identified no
need whatsoever for the declaration he seeks regarding the lawfulness of the Presidents conduct
under the Domestic Emoluments Clause of the United States Constitution. Plaintiff has not
indicated any doubt he has as to the existence or non existence of any legal rights, status,
immunities, powers or privileges which would be affected in any way by the relief he seeks. Far
from demonstrating why he is entitled to the declaration he seeks, Plaintiffs Amended Complaint
merely states that he is a member of The Florida Bar, a resident of Broward County, Florida, [] a
citizen of the United States of America, and as such is entitled to relief in her Courts. Am. Compl.
at p.2. Such a conclusory statement clearly fails to satisfy the requirement of a bona fide, actual,
present, and practical need for the declaration. See id. The Supreme Court of Florida has
indicated that Floridas Declaratory Judgment Act should not be permitted to foster . . . useless
litigation to answer abstract questions, to satisfy idle curiosity, go on a fishing expedition or to
give judgments that serve no useful purpose. Ready v. Safeway Rock Co., 24 So.2d 808, 809 (Fla.
1946). Plaintiffs claim in this action would do just that.
3
The Supreme Court has left open the question whether the President might be subject to an
injunction requiring the performance of a purely ministerial duty. See Mississippi, 71 U.S. at
50001. However, the relief sought in this case cannot fairly be described as purely ministerial.
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supported by our history). Justice Scalia reasoned that just as the President is absolutely immune

from official capacity damages suits, so is he immune from suits for declaratory judgments against

him in his official capacity. Id. at 827 ([m]any of the reasons [the Court] gave in Nixon v.

Fitzgerald, [457 U.S. 731, 749 (1982)], for acknowledging an absolute Presidential immunity from

civil damages for official acts apply with equal, if not greater, force to requests for declaratory or

injunctive relief in official-capacity suits that challenge the Presidents performance of executive

functions). The lower courts have often applied this settled principle. See, e.g., Swan v. Clinton,

100 F.3d 973, 976 n.1 (D.C. Cir. 1996) (similar considerations regarding a courts power to issue

[injunctive] relief against the President himself apply to [the] request for a declaratory judgment);

Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) ([w]ith regard to the President, courts

do not have jurisdiction to enjoin him); Intl Refugee Assistance Project v. Trump, 857 F.3d 557,

605 (4th Cir. 2017) (we find that the district court erred in issuing an injunction against the

President himself), cert. granted, 137 S. Ct. 2080, 2089 (2017). Accordingly, this Court should

dismiss the Amended Complaint for the additional reason that it seeks a remedy the Court is

without jurisdiction to provide.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court dismiss this case

for lack of subject matter jurisdiction or failure to state a claim.

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Date: September 26, 2017 Respectfully submitted,

Miami, Florida

BENJAMIN G. GREENBERG
ACTING UNITED STATES ATTORNEY

By: s/Carlos Raurell

CARLOS RAURELL
Assistant United States Attorney
Florida Bar No. 529893
Carlos.Raurell@usdoj.gov
99 N.E. 4th Street, Suite 300
Miami, Florida 33132-2111
Tel: (305) 961- 9243
Fax: (305) 530-7139

Counsel for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 26, 2017, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document

is being served by email on Plaintiff.

s/Carlos Raurell
CARLOS RAURELL
Assistant United States Attorney