Nyambal v. Mnuchin

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

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

2 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
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

6
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

3 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).
7
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.

8
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

9
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

10
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

11
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

4 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.”).
12
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

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
13
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.
14
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

15
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

16
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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