United States District Court, D. Massachusetts
MATTHEW J. NASUTI, Plaintiff,
U.S. SECRETARY OF STATE JOHN FORBES KERRY and THE U.S. DEPARTMENT OF STATE, Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Matthew J. Nasuti, Senior City Managment Advisor-U.S Embassy,
Bagdad, Plaintiff, Pro se, Deerfield, MA.
U.S. Secretary of Stat John Forbes Kerry, The U.S. Department
of State, Defendants: Annapurna Balakrishna, LEAD ATTORNEY,
U.S. Attorney's Office, Civil Division, Boston, MA.
M. Gorton, United States District Judge.
action was brought by Matthew J. Nasuti, a former employee of
the United States Department of State (" the
Department" ), against Secretary of State John F. Kerry
and the Department. In his complaint, Nasuti alleges that the
Secretary and the Department have failed to carry out their
duties under certain federal laws to provide adequate body
armor to employees and visitors at United States embassies
abroad. He also alleges misconduct in relation to the
termination of his employment at the Department, as well as
several claims under the Freedom of Information Act ("
before the Court is defendants' motion to dismiss Counts
II and III of the complaint which contain Nasuti's body
armor and employment claims. Also pending is plaintiff's
motion for a preliminary injunction to compel the Department
to rectify alleged deficiencies in its policies relating to
the use of body armor by U.S. embassy employees and visitors.
For the reasons that follow, the motion to dismiss will be
allowed and the motion for a preliminary injunction will be
Background and Procedural History
plaintiff Nasuti was appointed by the Department to a "
one-year excepted service" position as a Senior City
Management Advisor in the Iraq Transition Assistance Office.
After two weeks of training, just before he was to be sent to
Baghdad, plaintiff was fired for " disruptive
behavior." Nasuti v. Merit Sys. Protection Bd.,
504 Fed.Appx. 895, 899 (Fed. Cir. 2013). Nasuti alleges that
he was fraudulently terminated by an employee who lacked the
requisite authority to make such a decision. He also claims
that his termination was engineered in retaliation for his
having raised concerns relating to the inadequacy of the
Department's policies on the use of body armor by U.S.
embassy employees and visitors.
appealed his termination to the Merit Systems Protection
Board which dismissed the appeal on jurisdictional grounds.
Id. He did not appeal that decision which therefore
became final. Id. at 895. Instead, he filed a
complaint with the Office of Special Counsel alleging that he
had been improperly fired for making protected disclosures.
Id. at 896. Some of the claims in that action have
been dismissed but one claim remains pending. Id. at
6, 2015 plaintiff commenced this case against Secretary Kerry
and the Department. Count I of his amended complaint, which
alleges several FOIA violations, is not at issue in the
pending motions. In Counts II and III, Nasuti alleges that
his termination violated federal criminal law and that the
Secretary breached his duty to protect Nasuti from such
He also alleges deficiencies in the Department's policies
relating to personal protective equipment and body armor for
U.S. embassy employees and visitors, which he claims violate
29 U.S.C. § 654, 29 U.S.C. § 668, 29 C.F.R. §
1960.1 et seq. and Executive Order 12196. Count II requests
relief in the form of declaratory judgments relating to both
of those issues, while Count III requests that a mandamus be
directed to Secretary Kerry requiring him to promulgate new
policies to address the alleged body armor problems.
November 24, 2015 Nasuti filed an emergency motion for a writ
of mandamus directing Secretary Kerry to rectify the alleged
violations with respect to the Department's body armor
policies. Eight days later the Court denied the motion on the
grounds that the writ of mandamus has been abolished in the
federal district courts.
December 7, 2015 Nasuti filed a motion for a preliminary
injunction and requested that the Court review the memorandum
he filed in support of his motion for a writ of mandamus. In
response defendants filed a combined opposition to the motion
for a preliminary injunction and memorandum in support of
their motion to dismiss Counts II and III of the complaint
for lack of jurisdiction and failure to state a claim.
Defendants' Motion to Dismiss Counts II and III of the
seek to dismiss Counts II and III on two grounds. First, they
contend that this Court lacks subject matter jurisdiction
over Counts II and III insofar as they relate to the
Department's body armor policies. Second, defendants
assert that neither plaintiff's body armor claim nor his
employment claim in Counts II and III state a claim upon
which relief can be granted. As explained below, the
defendants' motion will be allowed on both grounds and
Counts II and III will be dismissed in their entirety.
Motion to Dismiss for Lack of Subject Matter
opposing a motion to dismiss for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff bears
the burden of establishing that the Court has jurisdiction.
Lujan v. Defenders of Wildlife,504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court assumes
that all material allegations set forth in the complaint are
true. See Mulloy v. United States,884 F.Supp. 622,
626 (D.Mass. 1995); Williams v. City of Boston, 784
F.2d 430, 433 (1st Cir. 1986). The averments of the
complaint, as well as their proper inferences, are construed
in favor of the plaintiff and the claim will not be dismissed
unless " it appears beyond ...