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Nyambal v. Mnuchin

United States District Court, District of Columbia

March 29, 2017

EUGENE NYAMBAL, Plaintiff,
v.
STEVEN MNUCHIN, in his official capacity as Secretary of the United States Treasury and United States Governor at the International Monetary Fund, Defendant.[1]

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         When Eugene Nyambal worked for the International Monetary Fund (“IMF”) as a Senior Advisor to one of the IMF's Executive Directors he raised concerns within the IMF regarding funding the IMF planned to provide for a mining project in Cameroon. Mr. Nyambal alleges that as a result of raising those concerns he was subjected to a campaign of retaliation perpetrated by the IMF. That retaliation included termination of his employment at the IMF. The IMF has steadfastly refused to arbitrate Mr. Nyambal's claims of whistleblower retaliation. Accordingly, Mr. Nyambal petitions the Court, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the mandamus statute, 28 U.S.C. § 1361, to compel the Secretary of the Treasury to comply with a particular provision of the Consolidated Appropriations Act of 2012 and thereby require the IMF to implement whistleblower protections, including the convening of an external arbitration to adjudicate Mr. Nyambal's claims of whistleblower retaliation. The Secretary has moved to dismiss Mr. Nyambal's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Upon consideration of that motion, the response and reply thereto, the applicable law, and for the reasons discussed below, the Secretary's motion is GRANTED.

         I. Background

         Mr. Nyambal was employed by the IMF as Senior Advisor to Executive Director Laurean Rutayisire, who represented 24 African nations on the IMF's Executive Board. Second Am. Compl. (“SAC”), ECF No. 5 ¶ 8.[2] As part of his role as Senior Advisor, Mr. Nyambal was responsible for advising IMF member countries in the course of economic aid negotiations and for safeguarding IMF resources. Id. In 2009, the government of Cameroon sought $60 million in IMF funding, plus additional IMF credit, for a mining project. Id. ¶ 10. Pursuant to his responsibilities as Senior Advisor, Mr. Nyambal “concluded that Cameroon was not supplying adequate information to allow for a proper assessment of the project.” Id. Specifically, Cameroon had not provided information regarding the identity of the Cameroonian stakeholders in the mining project. Id. That lack of information gave rise to Mr. Nyambal's “concerns” as to “the fraudulent nature” of the mining project. See Id. ¶ 14. Accordingly, Mr. Nyambal “raised” his concerns about lack of transparency and potential corruption as to the mining project. Id. ¶ 2. But on June 25, 2009--“a few months after the IMF's approval of funding for the mining project” and within 24 hours of having raised his concerns regarding that project--Mr. Nyambal's employment at the IMF was “terminated without notice or explanation by Mr. Rutayisire.” Id. ¶¶ 2, 11. The funding about which Mr. Nyambal raised concerns went forward “without adequate oversight” and “most of the $60 million in funding was eventually misappropriated through a complex money laundering scheme involving Geovic Mining Corp[oration], ” id. ¶ 10, while Mr. Nyambal was left without a job at the IMF and, upon his termination, “was immediately denied access to his office, ” where his personal belongings were confiscated. Id. ¶ 11. Soon after his termination, while doing some banking at the Credit Union located at the IMF, security guards “ejected [him] from the bank in full view of the public.” Id. About four years later, on July 23 and October 9, 2013, Mr. Nyambal was denied access to a World Bank building. Id. ¶ 17. The World Bank denied Mr. Nyambal entry to its facilities based on its honoring of the IMF's “Do Not Admit” list, on which Mr. Nyambal had been included. See Id. ¶ 21.

         Mr. Nyambal alleges that the abrupt termination of his employment at the IMF and his subsequent ejections from IMF and World Bank facilities constitute “a campaign of retaliation” against him perpetrated by the IMF because he raised concerns within the IMF regarding the funding for the Cameroonian mining project. Id. ¶ 2. Between 2009 and 2011, the IMF conducted two investigations related to the mining project, id. ¶ 12, but it has never permitted Mr. Nyambal to assert his claims of whistleblower retaliation in an external arbitration. See Id. ¶¶ 4, 17, 19-20. Seeking to have those claims adjudicated in an external arbitration, Mr. Nyambal petitions this Court, pursuant to the APA, id. at 1 (citing 5 U.S.C. §§ 555(b), 706(1), 706(2)(A), 706(2)(C), 706(2)(D)) and the mandamus statute, id. (citing 28 U.S.C. § 1361), to issue a writ of mandamus compelling the Secretary of the Treasury to comply with a particular provision of the Consolidated Appropriations Act of 2012 and thereby order the Secretary to, in turn, “require the IMF to implement whistleblower protections, including the convening of an independent adjudication of [Mr. Nyambal's] complaints.” Id. at 15. The provision of the Consolidated Appropriations Act of 2012 on which Mr. Nyambal relies states in full:

The Secretary of the Treasury shall seek to ensure that the IMF is implementing best practices for the protection of whistleblowers from retaliation, including best practices for legal burdens of proof, access to independent adjudicative bodies, results that eliminate the effects of retaliation, and statutes of limitation for reporting retaliation.

Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. I, tit. VII, § 7071(c), 125 Stat. 786, 1255 (hereinafter “section 7071(c)”).

         The Secretary has moved to dismiss this case on various grounds under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See generally Def.'s Mot. to Dismiss, ECF No. 9; Def.'s Mem. in Supp. of Mot. to Dismiss (“Def.'s Mem. Supp.”), ECF No. 9. Mr. Nyambal has opposed that motion, see generally Pl.'s Opp. to Def.'s Mot. to Dismiss (“Pl.'s Opp.”), ECF No. 11, and, subsequent to the filing of the Secretary's reply brief, has filed a “supplement” to his opposition to the Secretary's motion to dismiss. See generally Pl.'s Suppl. to Opp., ECF No. 13. The Secretary has moved to strike Mr. Nyambal's supplemental filing. See generally Def.'s Mot. to Strike, ECF No. 14. These motions are ripe for the Court's adjudication.

         II. Analysis

         A. Motion to Strike

         The Secretary has moved to strike Mr. Nyambal's “supplement” to his opposition to the Secretary's motion to dismiss on the ground that it is an improper and unauthorized surreply. Def.'s Mem. in Supp. of Mot. to Strike, ECF No. 14 at 1. Specifically, the Secretary argues that Mr. Nyambal never sought the required leave of the Court before filing his surreply and, in any event, even if Mr. Nyambal had sought leave of the Court, the surreply should be stricken because it merely puts forth legal arguments and factual allegations that were already put forth in Mr. Nyambal's opposition or that could have been put forth in that opposition. Id. at 1-3. Mr. Nyambal counters that the Secretary has mischaracterized his supplemental filing as a surreply. Pl.'s Opp. to Mot. to Strike, ECF No. 15 at 1. He argues that his supplemental filing does not put forth any new legal arguments that were not made in his opposition and, instead, merely “adds factual context” so that the Court can assess subject matter jurisdiction. Id. at 1-2.

         The Secretary has not mischaracterized Mr. Nyambal's supplemental filing: Because it was filed after the Secretary's reply brief with the purpose of supplementing the opposition to the motion to dismiss, it is a surreply.[3] See Schmidt v. Shah, 696 F.Supp.2d 44, 59 (D.D.C. 2010) (“Because these submissions were filed after Defendant submitted his reply brief, they are surreplies not authorized by the Local Rules.”). “[B]efore filing a surreply, a party must request the Court's permission to do so, and must show that the reply filed by the moving party raised new arguments that were not included in the original motion.” Gebretsadike v. Travelers Home & Marine Ins. Co., 103 F.Supp.3d 78, 86 (D.D.C. 2015) (internal quotation marks and citations omitted). Because Mr. Nyambal has not satisfied either of these requirements, the Court GRANTS the Secretary's motion to strike his supplemental filing.

         B. Motion to Dismiss

         The Secretary has moved to dismiss for a variety of reasons, arguing that: (1) Mr. Nyambal lacks standing under Article III of the Constitution because the Secretary's actions did not cause Mr. Nyambal's injury and because any action that the Court could compel the Secretary to take would not be likely to redress Mr. Nyambal's injury, Def.'s Mem. Supp., ECF No. 9 at 10-13; (2) Mr. Nyambal's claim is nonjusticiable under the political question doctrine, id. at 14-16; (3) the mandamus relief that Mr. Nyambal seeks is unavailable because he has not demonstrated that he has a clear right to relief or that the Secretary has a clear duty to act, id. at 16-18; (4) Mr. Nyambal has failed to state a claim under the APA because the conduct that he challenges is not subject to judicial review and because the action he seeks to compel is not legally required, id. at 18-22; and (5) the Secretary is immune from legal process in his ...


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