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Nasuti v. Kerry

United States District Court, D. Massachusetts

January 22, 2016

MATTHEW J. NASUTI, Plaintiff,
v.
U.S. SECRETARY OF STATE JOHN FORBES KERRY and THE U.S. DEPARTMENT OF STATE, Defendants

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          Matthew J. Nasuti, Senior City Managment Advisor-U.S Embassy, Bagdad, Plaintiff, Pro se, Deerfield, MA.

         For 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.

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         MEMORANDUM & ORDER

         Nathaniel M. Gorton, United States District Judge.

         I. Introduction

         This 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 (" FOIA" ).

         Pending 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 denied.

         II. Background and Procedural History

         In 2008 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.

         Plaintiff 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 899-900.

         On July 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 violations.

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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.

         On 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.[1]

         On 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.

         III. Defendants' Motion to Dismiss Counts II and III of the Amended Complaint

         Defendants 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.

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         1. Legal Standard

         In 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 ...


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