NYAMBAL v. LEW

Filing 18

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 03/29/2017. (lcegs3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
EUGENE NYAMBAL,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 15-2238 (EGS)
)
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
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

Steven Mnuchin has been substituted as the named defendant
pursuant to Federal Rule of Civil Procedure 25(d).
1

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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

Mr. Nyambal filed a first amended complaint, see First Am.
Compl. (“FAC”), ECF No. 3, and then filed the SAC, but still
appears to rely upon the FAC. See, e.g., Pl.’s Opp. to Def.’s
Mot. to Dismiss, ECF No. 11 at 1. The Court will rely upon the
SAC for purposes of this Memorandum Opinion. In any event, even
if it relied upon the FAC, the Court’s conclusions would not
change.
2

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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
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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
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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.

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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
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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

In fact, it is Mr. Nyambal who has mischaracterized his own
supplemental filing. In his opposition to the Secretary’s motion
to strike, Mr. Nyambal asserts that his supplemental filing is
devoid of any legal argument that was not already raised in his
opposition. Pl.’s Opp. to Mot. to Strike, ECF No. 15 at 1. That
is inaccurate. See, e.g., Pl.’s Suppl. to Opp., ECF No. 13 at
23-24 (making a legal argument relying on the Take Care Clause
of the Constitution that does not appear in the opposition).
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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
capacity as United States Governor of the IMF. Id. at 22. The
Court concludes that Mr. Nyambal lacks Article III standing.
Accordingly, his complaint will be dismissed on that basis, and
the Court need not reach the Secretary’s alternative arguments.
1.

Standard of Review

A motion to dismiss for lack of standing is properly
considered a challenge to the Court’s subject matter
jurisdiction and should be reviewed under Rule 12(b)(1). See
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“[T]he
defect of standing is a defect in subject matter
jurisdiction.”). To survive a Rule 12(b)(1) motion to dismiss,
“the plaintiff bears the burden of establishing jurisdiction by
a preponderance of the evidence.” Moran v. U.S. Capitol Police
Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v.
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Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Because Rule
12(b)(1) concerns a court’s ability to hear a particular claim,
the court “must scrutinize the plaintiff’s allegations more
closely when considering a motion to dismiss pursuant to Rule
12(b)(1) than it would under a motion to dismiss pursuant to
Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd., 826 F. Supp.
2d 59, 65 (D.D.C. 2011). In so doing, the court must accept as
true all of the factual allegations in the complaint and draw
all reasonable inferences in favor of the plaintiff, but the
court need not “accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual
allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C.
2001). In reviewing a motion to dismiss pursuant to Rule
12(b)(1), the court “may consider such materials outside the
pleadings as it deems appropriate to resolve the question
whether it has jurisdiction in the case.” Scolaro v. D.C. Bd. Of
Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see
also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253
(D.C. Cir. 2005).
2.

Mr. Nyambal Lacks Standing

Standing “is an essential and unchanging predicate to any
exercise of . . . jurisdiction” by an Article III court. See Am.
Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 814 (D.C.
Cir. 2006) (internal quotation marks omitted). “[T]he
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irreducible constitutional minimum of standing contains three
elements.” Lujan, 504 U.S. at 560. “First, the plaintiff must
have suffered an injury in fact——an invasion of a legally
protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.” Id.
(internal quotation marks and citations omitted). “Second, there
must be a causal connection between the injury and the conduct
complained of——the injury has to 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.”
Id. (internal quotation marks and alterations omitted). “Third,
it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at 561
(internal quotation marks omitted).
For purposes of his motion to dismiss, the Secretary has
assumed that Mr. Nyambal has suffered an injury in fact and,
accordingly, has focused his arguments on the causation and
redressability prongs of the standing inquiry. See Def.’s Reply,
ECF No. 12 at 3 & n.3. The injury that the Secretary has assumed
that Mr. Nyambal has suffered is “the effects of alleged IMF
retaliation.” Def.’s Mem. Supp., ECF No. 9 at 11. If that were
the relevant injury in fact, it would be clear that Mr. Nyambal
would fail to carry his burden as to the causation prong of the
standing inquiry: The effects of the retaliation——i.e., the
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alleged destruction of Mr. Nyambal’s “career, financial
standing, employability and reputation,” SAC, ECF No. 5 ¶ 27——
can only be traced to the IMF’s, not the Secretary’s, actions of
terminating Mr. Nyambal’s employment and preventing him from
accessing IMF and World Bank facilities. Having failed to
satisfy one of the three independent elements of standing, the
Court would have no need to carry its standing analysis any
further. See Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir.
2010) (“The absence of any one of the[ ] three elements defeats
standing.”).
Although the alleged financial- and career-related injury
is certainly the underlying substantive injury that Mr. Nyambal
ultimately seeks to address, for purposes of his request that
this Court issue a writ of mandamus compelling the Secretary to
take certain actions——namely, (1) to comply with section 7071(c)
and (2) to require the IMF to resolve Mr. Nyambal’s claims of
retaliation in an external arbitration, see SAC, ECF No. 5 at
15——the relevant injury appears to be more procedural in nature:
that Mr. Nyambal has not been permitted to adjudicate his
retaliation claims against the IMF in an external arbitration.
But even taking that absence of arbitral process as the relevant
injury in fact, Mr. Nyambal is still unable to establish that he
has standing because he fails to satisfy the redressability

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element of the relevant inquiry.4 He fails to satisfy that
element for two reasons.
First, “[t]o satisfy this element, a plaintiff must show in
the first instance that the court is capable of granting the
relief sought.” Love v. Vilsack, 908 F. Supp. 2d 139, 144-45
(D.D.C. 2012) (citing Newdow, 603 F.3d at 1010-11; Swan v.
Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996)). Here, part of the
relief that Mr. Nyambal seeks is a writ of mandamus compelling
the Secretary to “require the IMF to implement whistleblower
protections, including the convening of an independent
adjudication of [Mr. Nyambal’s] complaints.” SAC, ECF No. 5 at
15. But the Court lacks the authority to compel the Secretary to
take those actions. Mandamus relief is only permissible when a
plaintiff demonstrates “(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, 812 F.3d 183, 189 (D.C.
Cir. 2016). Here, the provision on which Mr. Nyambal relies
merely directs that the Secretary “shall seek to ensure that the

The Court assumes, without deciding, that the causality element
of the standing inquiry could be satisfied. See Newdow, 603 F.3d
at 1010 (“We will assume, without holding, that plaintiffs’
claimed injury is an injury in fact and that it can be fairly
traced to the conduct of the defendants. It is in the third
element, redressability, where we find two problems with
plaintiffs’ case for standing.”).
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IMF is implementing best practices for the protection of
whistleblowers from retaliation, including best practices for .
. . access to independent adjudicative bodies.” § 7071(c)
(emphasis added). When “seek” is followed by “to” and an
infinitive, as it is here, it means “to make an attempt” or to
“try.” Seek, Merriam-Webster Dictionary Online,
https://www.meriam-webster.com/dictionary/seek (last visited
March 27, 2017). Thus the Secretary’s only clear duty under
section 7071(c) is to try to get the IMF to implement best
practices for getting whistleblower retaliation claimants access
to independent adjudicative bodies. That limited duty forecloses
this Court from issuing a writ of mandamus compelling the
Secretary to “require the IMF to implement whistleblower
protections, including the convening of an independent
adjudication of [Mr. Nyambal’s] complaints.” 5 See SAC, ECF No. 5

The Court is similarly foreclosed from granting this portion of
the relief requested under the APA. See Citizens for
Responsibility & Ethics in Washington v. SEC, 916 F. Supp. 2d
141, 151 (D.D.C. 2013) (“The standards for APA relief under §
706(1) and for mandamus here are identical . . . .”); see also
Ctr. for Biological Diversity v. Brennan, 571 F. Supp. 2d 1105,
1124 (N.D. Cal. 2007) (“Where the relief the plaintiff is
seeking is identical under either the APA or the mandamus
statute, proceeding under one as opposed to the other is
insignificant.”) (citing Indep. Mining Co. v. Babbitt, 105 F.3d
502, 507 (9th Cir. 1997)). To the extent that the Court’s
analysis here veers into a merits inquiry, see People for the
Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d
1087, 1097 (D.C. Cir. 2015) (describing the assessment of
whether an agency “has a policy of non-enforcement that
constitutes agency action unlawfully withheld, in violation of
5

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at 15 (emphasis added). Accordingly, because this Court lacks
the authority to grant a portion of the relief that Mr. Nyambal
has requested, he fails to satisfy the redressability prong of
the standing inquiry. See Lozansky v. Obama, 841 F. Supp. 2d
124, 132-33 (D.D.C. 2012) (holding that “[p]laintiffs . . . lack
standing because the Court cannot issue the requested writ of
mandamus, and thus cannot redress the [alleged] injury”).
Second, the Court does not doubt its authority to provide
the other portion of the mandamus relief that Mr. Nyambal
requests——namely, compelling the Secretary to “comply with
[section 7071(c)]” by trying to ensure that the IMF implements
best practices for the protection of whistleblowers from
retaliation, including best practices for access to independent
adjudicative bodies, see SAC, ECF No. 5 at 15——but this relief
is not likely to redress Mr. Nyambal’s alleged injury of not
having been given arbitral process by the IMF. See Newdow, 603
F.3d at 1011 (the plaintiffs’ “second redressability problem is
that declaratory and injunctive relief against the defendants .
. . would not prevent the claimed injury”). “Redressability

section 706(1) of the APA” as a “non-jurisdictional question”),
and thus improperly fails to “assume the merits of [Mr.
Nyambal’s] claim when determining whether standing exists,” West
Virginia ex rel. Morrisey v. U.S. Dep’t of Health & Human
Servs., 827 F.3d 81, 84 (D.C. Cir. 2016), the Court’s analysis
would remain the same under a Rule 12(b)(6) lens: Mr. Nyambal’s
claims pursuant to the APA and the mandamus statute would be
dismissed for failure to state a claim.
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examines whether the relief sought, assuming that the court
chooses to grant it, will likely alleviate the particularized
injury alleged by the plaintiff.” West v. Lynch, 845 F.3d 1228,
1235 (D.C. Cir. 2017) (internal quotation marks omitted). “The
key word is ‘likely.’” Id. (quoting Lujan, 504 U.S. at 561).
Thus Mr. Nyambal must show that it is “likely, as opposed to
merely speculative,” that his injury——not having access to an
arbitral forum for his retaliation claims against the IMF——will
be redressed by a favorable decision. See Lujan, 504 U.S. at 561
(internal quotation marks omitted). In this case of third-party
causation——where Mr. Nyambal “seeks to change the [Secretary’s]
behavior only as a means to alter the conduct of a third party,
not before the court, who is the direct source of [Mr.
Nyambal’s] injury,” see Common Cause v. Dep’t of Energy, 702
F.2d 245, 251 (D.C. Cir. 1983)——“it is ‘substantially more
difficult’ to establish redressability.” Talenti v. Clinton, 102
F.3d 573, 577 (D.C. Cir. 1996) (quoting Lujan, 504 U.S. at 562).
It is substantially more difficult because “standing to
challenge a government policy cannot be founded merely on
speculation as to what third parties will do in response to a
favorable ruling.” Renal Physicians Ass’n v. U.S. Dep’t of
Health & Human Servs., 489 F.3d 1267, 1274 (D.C. Cir. 2007).
When those third parties can exercise “broad and legitimate
discretion the courts cannot presume either to control or to
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predict,” a court is generally unable to redress the alleged
injury and, accordingly, standing is found wanting. See Talenti,
102 F.3d at 577 (internal quotation marks omitted).
As explained above, the most the Court can compel the
Secretary to do is to try to ensure that the IMF implements best
practices for the protection of whistleblowers from retaliation,
including best practices for access to independent adjudicative
bodies. If the Court were to order the Secretary to engage in
the efforts called for by section 7071(c), reaching the
conclusion that those efforts would bear the relief that Mr.
Nyambal seeks——that the third-party IMF would actually implement
best practices for access to independent adjudicative bodies and
then would arbitrate Mr. Nyambal’s retaliation claims——would
require sheer speculation as to how the IMF would exercise its
broad and legitimate discretion in response to the Secretary’s
efforts. When such “conjecture is necessary, redressability is
lacking.” West, 845 F.3d at 1237 (citing Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 43-44 (1976)).
Mr. Nyambal asserts that the United States is the only
country in the IMF equipped with “a veto power”; that the
Secretary is on the Board of Governors, which is the “highest
decision-making body of the IMF”; that the Secretary’s role is
“to ensure that the IMF complies with applicable laws”; that the
Secretary appoints a “U.S. Executive Director of the IMF to
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oversee day-to-day operations”; and that that Executive Director
“has authority to request any investigation pertaining to the
IMF’s governance.” Pl.’s Opp., ECF No. 11 at 5-6. Assuming that
all of these assertions are true, the United States wields
significant authority at the IMF. Nevertheless, even with that
significant authority there is hardly a high likelihood that if
the Secretary were to make efforts to ensure that the IMF
implements best practices for the protection of whistleblowers
from retaliation that those best practices would actually be
implemented by the IMF and that Mr. Nyambal would get his
sought-after arbitration. Mr. Nyambal suggests that the
Secretary could use the United States’ veto power or the United
States’ votes in elections for the position of IMF Managing
Director to coerce the IMF into implementing best practices for
the protection of whistleblowers. See SAC, ECF No. 5 ¶ 5. But
even if the Secretary took these actions, Mr. Nyambal has
provided no explanation as to how such actions would likely
result in the IMF’s implementation of best practices for the
protection of whistleblowers. The omission of that explanation
is particularly problematic given that there is “considerable
uncertainty” as to whether the actions that Mr. Nyambal suggests
the Secretary could take to coerce the IMF into implementing
best practices for the protection of whistleblowers “would aid
[him] . . . or would tend to drive [the IMF] into even greater
17

intransigence.” See Talenti, 102 F.3d at 578 (internal quotation
marks omitted). That explanation is one Mr. Nyambal was required
to provide. See Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930, 938 (D.C. Cir. 2004) (explaining that when
redressability hinges on the independent choices of a regulated
third party, “it becomes the burden of the plaintiff to adduce
facts showing that those choices have been or will be made in
such manner as to . . . permit redressability of injury”)
(internal quotation marks omitted). Without it, the Court must
conclude that Mr. Nyambal has not satisfied the redressability
element and, accordingly, lacks the standing needed to pursue
his claim. Accordingly, the Court GRANTS the Secretary’s motion
to dismiss.
III. Conclusion
For the reasons stated above, the Secretary’s motion to
strike and motion to dismiss are GRANTED, and this case is
dismissed with prejudice. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
March 29, 2017

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