United States District Court, District of Columbia
G. Sullivan United States District Judge.
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
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. 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.
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
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)”).
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.
Motion to Strike
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.
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. 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
Motion to Dismiss
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 ...