Braun v. United States

In the Gnited States Court of Federal Clauns

No. 19-349C

Filed: August 30, 2019

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DAVID STEVEN BRAUN,

Plaintiff, Pro Se Plaintiff; Motion to

Dismiss; Subject Matter

Jurisdiction; Privacy Act; 28

U.S.C. § 1494; Administrative

Procedures Act.

Vv.

UNITED STATES,

Defendant.

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David S. Braun, pro se, Gallatin Gateway, MT.

Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With her were

Martin F. Hockey, Jr., Deputy Director, Commercial Litigation Branch, Civil Division,

Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and

Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil

Division.

OPINION

HORN, J.

FINDINGS OF FACT

On March 6, 2019, pro se plaintiff David Steven Braun filed a complaint in the

United States Court of Federal Claims asserting numerous and varied allegations against

multiple government agencies. In the 78 pages of exhibits attached to his complaint,

plaintiff includes correspondence with various governmental agencies and filings from

plaintiff's prior suits in federal courts. Plaintiff includes two letters to the National Security

Agency (NSA), cited in the complaint, in which plaintiff alleges, among other things, that

he has been subjected to varied, unrelated experiences with unspecified governmental

agencies, “including mikies,["] wire taps, currently cell phone gps servalance, email

problems, etc.” and “forced drugs” causing “several medical events, due to say Mikes.”2

1 Plaintiff alleges on numerous occasions in his filings and exhibits submitted to this court

in the above captioned case that he has been “milked” or “pored several Mikes.” Plaintiff

appears to refer to what he describes as a “drug” that “seams to dull long term memory”

and “makes you very lethargic.”

2 Capitalization, grammar, punctuation, and other errors quoted in this Opinion are as

they originally appear in plaintiff's submissions to this court.

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Plaintiff also alleges in what he terms a motion for a preliminary injunction, filed on the

same date as the complaint, that he has been subject to “a large quantity of strange speed

tickets, traffic violations that occurred over half off the Western United states, and

perpetual and obvious intentionally created service problems with email, phone, cell etc.”

In addition to the many confused, and difficult to follow, allegations in his complaint,

plaintiff lists a “Claim Number 1” and a “Claim Number 2.” Plaintiff alleges that “Claim

Number 1” “is a result of the NSA [National Security Agency] denying a record request

__.. The records that were not furnished buy the agency were results off requested

investigations [by plaintiff] from the Military intelligence facility.” In “Claim Number 1,”

plaintiff contends that, in response to plaintiff's “exhibited record request, the NSA,

through their FOIA [Freedom of Information Act] office failed to comply and produce the

requested records.” Plaintiff asserts that the “requested records” “would halve implicated

a third party in multiple instances, including illegal wire tapping and surveillance, and

engaging in plain closed military intelligence activities on American Civilians on American

Soil.” Plaintiff attaches as an exhibit to his complaint a letter, dated, April 4, 2013, labeled

“Privacy act request, request for help from NSA,” which plaintiff claims to have sent to the

NSA.? In the April 4, 2013 letter, plaintiff stated that “[t]here were allot off drugs forced on

me, without a court order, Haldol etc. | have no criminal record. If you can’t find a record

off this, please let me know.”

Plaintiff also attaches to his complaint a letter dated April 9, 2013, which appears

to be on letterhead titled: “NATIONAL SECURITY AGENCY CENTRAL SECURITY

SERVICE.” The April 9, 2013 letter, addressed to plaintiff in a format suggesting it written

by Pamela A. Phillips, who indicated she was the by Chief of the “FOIA/PA Office.” The

letter states:

The classified nature of the National Security Agency’s efforts prevents us

from either confirming or denying the existence of intelligence records

responsive to your request, or whether any specific technique or method is

employed in those efforts. The fact of the existence or non-existence of

responsive records is a currently and properly classified matter in

accordance with Executive Order 13526, as set forth in Subparagraph (c)

of Section 1.4. Thus, your request is denied pursuant to the first exemption

of the FOIA, which provides that the FOIA does not apply to matters that

are specifically authorized under criteria established by an Executive Order

to be kept secret in the interest of national defense or foreign relations and

are properly classified pursuant to such Executive Order.

3 In the exhibits to plaintiff's complaint and what he labels as a motion for a preliminary

injunction, plaintiff includes numerous requests for records and information sent to

governmental agencies, including five requests sent to the Federal Bureau of

Investigation (FBI) and to the Department of Justice (seeking appeals of FBI responses

to plaintiff's inquiries), eight requests sent to the Central Intelligence Agency (CIA), and

five requests sent to the NSA. Plaintiff also asserts that he “spoke with a Special Agent

in the Parking lot of Fort Mead Maryland,” which triggered a “base incident report.”

2

Moreover, the third exemption of the FOIA provides for the withholding of

information specifically protected from disclosure by statute. Thus, your

request is also denied because the fact of the existence or non-existence

of the information is exempted from disclosure pursuant to the third

exemption.

According to plaintiff's complaint, had the NSA furnished the “record request” in full, “you

would halve detailed result of requested investigation that you could take to an

appropriate court and request a summary Judgment for what ever entity was found to

halve committed the acts as a result of the NSA’s investigation.” Due to the NSA’s alleged

withholding of the agency’s “records” requested by plaintiff, plaintiff claims that “the

Agency/US Government assumes the Liability” for any “civil implications” under “the Civil

clause off the Privacy Act 5 USC 552a(g)(1)(b).” Under “Claim Number 1,” plaintiff

requests relief of “750,000,000” in damages, which plaintiff suggests “could easily be

amortized over a ten year period.” According to plaintiff, the $750,000,000.00 is to

compensate for “Pain, damage, as well as the amount off time that has been put in buy

the plaintiff to fully correct these issues.”

Plaintiff's “Claim Number 2” allegedly “arises out off the Plaintiff mechanical failure

of a Civil Background Check” “due to some data point/entry in at least one of the national

database,” so that “Plaintiff no longer has the right to sue civilly” and “prevents any kind

off out of court or administrative settlement.” Plaintiff asserts that the alleged “Datapoint”

“was created illegally, I.E. either buy forgery or falsification of records and is highly illegal.”

As part of plaintiffs confused allegations regarding the alleged “Datapoint,” plaintiff states

that “under 1491(a)(2) to provide an entire remedy, this section clearly gives this court the

Jurisdiction to issue any order directing the correction of any applicable records.”

Regarding the potential origin of the “Datapoint,” plaintiff asserts that “[i]t is my

understanding that there are several legal changes off status that might as an ancillary

issue prevent this court from hearing any civil claims, regardless of what the claim is for

a specific Plaintiff.” Further, plaintiff asserts:

The plaintiff is unaware off any reason he should be failing this background

check. | am not currently in prison or halve any open criminal cases. | also

halve never been employed or signed an employment contract buy the US

Government or the US Military. It is the Plaintiff understand that this is false

data point was put in the database deliberately, and upon response to this

complaint and this claim, the US Government will be unable to provide any

believable documentation to substantiate this failure, |.E. such as a military

employment contract and service record. It just does not exist. It is the

Plaintiff experience that once this statement is maid, their will be nothing

presented to the court that would indicated that there is an issue as to why

this law suite cannot proceeded.

This point is in at least one national database that is maintained buy the US

Government. | am not sure exactly if this is the FBI [Federal Bureau of

Investigation] West Virginia Data Center, the DOD [Department of Defense]

has the Man Power Data Center. It is unclear who actually administers this

database check. It is done buy the apposing counsel. Basically they take

the Plaintiff name and run it through the database. Normally | guess there

is no problem, and the lawyer is free to proceeded as they see fit. In the

case of the Plaintiff, the database fails to clear me for civil activity.

Plaintiff alleges that this “Datapoint” has caused him “great harm” and seeks to recover

“for the harm plus the effort, the stress the damage to [his] life, and the time required and

put in to correct the problem, and make the plaintiff whole going forward.” Plaintiff's “Claim

Number 2” requests both a “monetary Judgment” of “500,000 a month for life” to

compensate him for the impact of the alleged undefined “Datapoint,” as well as a court

order “removing the datapoint or modifying it in such a way that it allows for among other

things a normal civilian civil and hiring process.”

Plaintiff also filed a motion for what he termed a preliminary injunction in this court

on March 6, 2019, requesting the court order to remove or modify the alleged “Datapoint”

“injunctively and/or . . . on a Permanent Basis.” According to plaintiff in his purported

motion for a preliminary injunction, “[slince early 2013, the plaintiff became aware and

has been using quite a bitt of docket time in federal court to terminate and correct some

illegal electronic surveillance buy one off the Federal Government Military intelligence

agencies.” In his purported motion for a preliminary injunction, plaintiff alleges that his

identity has been confused with the “backgrounds” of “two fictious residents” who are

“actually real people, they are real government ID's with real criminal histories. They halve

actually been deliberately added to a federal postal database. They would be viewed as

brothers and occupants off my rule Montana ski condo.” Plaintiff also asserts in his

purported motion for a preliminary injunction:

The criminal background off the other two Fictious brothers, in conjunction

with this datapoint attached to the Plaintiffs social security number was used

to obtain and convince several public telecommunication companies such

as Google, Verizon, Yahoo and my local copper phone company to export

on a feed, my electronic information.

Plaintiff requests that the court “remove or modify” the “Datapoint” and “terminate and

correct some illegal electronic surveillance buy one off the Federal Government Military

intelligence agencies.”

Defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1)

(2018) of the Rules of the United States Court of Federal Claims (RCFC) for lack of

subject matter jurisdiction. Defendant argues that any action brought pursuant to the

Privacy Act of 1974, as amended, 5 U.S.C. § 552a(g)(1) (2018), must be brought in

federal District Court and that the United States Court of Federal Claims lacks subject

matter jurisdiction to adjudicate any claims pursuant to the Privacy Act. Defendant also

filed a response to plaintiffs purported motion for a preliminary injunction, in which

defendant argues that plaintiffs request for a preliminary injunction fails “because the

Court’s equitable authority does not encompass his claims.”

Plaintiff filed a reply in support of his purported motion for a preliminary injunction,

incorporating what plaintiff alleges are “several additional statues that give this court

Jurisdiction in addition to 5 USC 1491(a).”4 Plaintiff's reply alleges that “since the Plaintiff

is beings legally wronged, or at least adversely affected, | think you can justify a claim

under 1491(a) simply for the record correction in that 5 U.S. 702 gives you the right to

proceeded directly into court.” Additionally, plaintiff argues that this submission to the NSA

on September 16, 2015 “constitutes a proper submission for settlement as referenced

under 28 U.S. Code 1494(1).” According to plaintiff, “over three years halve elapsed

without settlement and no suit has been brought by the United States. Their for | believe

this court has the right to proceeded and adjudicate this claim as directed under 28 U.S.

Code 1494.”

Plaintiff also filed a response to the motion to dismiss, along with a motion for

appointment of counsel.® In his response to the motion to dismiss, a substantial portion

appears to be copied directly from plaintiff's reply to defendant's response to the

purported motion for a preliminary injunction, plaintiff argues:

The US Government, has produced nothing or even tried to argue that there

is any reason why the Plaintiff is not entitled to a submission to the OMB

[Office of Management and Budget], or a normal civil process ... . | submit

that the US Government has consistently failed to act in an official capacity

of color of legal authority, and am request the court intervene and correct

this situation.

4 The statute referenced by plaintiff, “5 USC 1491(a),” does not exist. Moreover, in his

confused reply to defendant’s response to plaintiff's motion for a preliminary injunction,

plaintiff dedicates over half a page to discussing a speeding violation he was given the

day following the initial filing of his complaint.

5 In plaintiff's motion for appointment of counsel, plaintiff contends that “[a]pparently, this

database entry, cause the attorneys not to want to represent me in a civil situation. This

in it self a violation off my rights.” The court notes that “civil litigants generally have no

right to free legal aid in civil lawsuits.” Synergy Assocs. v. Sun Biotechnologies, Inc., 350

F.3d 681, 684 (7th Cir. 2003) (citing Fidelity Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat!

Title Ins. Co., 310 F.3d 537, 540 (7th Cir. 2002) (“Litigants have no right to free legal aid

in civil suits.”)). Therefore, plaintiff is not entitled by right to receive assistance of counsel

when appearing before the United States Court of Federal Claims. See Arnesen_v.

Principi, 300 F.3d 1353, 1360 (Fed. Cir. 2002) (noting that civil litigants generally have no

right to appointed counsel absent a potential loss of personal freedom (citing Lassiter v.

Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981))); Heuss v. United States, 75 Fed. Cl. 636,

637 (2007) (“Plaintiff does not have the right to assistance of counsel in this matter before

the Court of Federal Claims.” (citing Lariscey v. United States, 861 F.2d 1267, 1270-71

(Fed. Cir. 1988))).

Thereafter, defendant filed a reply in support of its motion to dismiss and reiterated

its argument that plaintiffs complaint “should be dismissed because the Court does not

possess jurisdiction to entertain his claims for alleged violations of section 552a(g)(1) of

the Privacy Act of 1974, as amended (5 U.S.C.).” Defendant's reply also asserts that

plaintiff's “opposition largely restates his allegations in additional detail,” but “this detail

does not change the nature of the claims.” Responding to the additional statutory citations

alleged by plaintiff in the “Response to Motion to Dismiss,” defendant contends that 28

U.S.C. § 1491(a) (2018) fails to provide a “substantive basis for jurisdiction in this Court,”

and plaintiff is precluded from bringing claims under “5 U.S.C. §§ 702 and 703” before

this court.” According to defendant's reply, “[i]n addition, Mr. Braun previously brought

these arguments before the [United States Court of Federal Claims] in an earlier-filed

suit.” See Braun v. United States, No. 18-1521C.

After defendant filed its reply to the motion to dismiss, plaintiff filed what he

describes as a “Motion For Guidance” in which plaintiff contends that defendant's

“response” “did not in any way present any argument as to why 28 USC 1494 did not

apply, and there is a injunctive motion and a request in the second claim for the court to

consider quit a bit off non monetary issue.” Plaintiff further alleges that “[f]rom my previous

experiences in the district courts, their has been a need for further submission to get the

issues corrected. I.E. on two separate occasions | had to make written request to the NSA

to assists and correct issues that had been found to be in the military.”

Defendant filed a response to plaintiff's “Motion For Guidance” addressing

plaintiff's assertion that 28 U.S.C. §1494 “provides an alternative basis for this Court to

exercise jurisdiction over his claims.” According to defendant, “Section 1494 grants [this

Court] jurisdiction to determine the amount, if any, due to or from the United States by

reason of any unsettled account of any officer or agent of, or contractor with, the United

States.” (alteration in original) (quoting Kalos v. United States, 748 F. App’x 993, 994

(Fed. Cir. 2018)) (internal quotation marks omitted). According to defendant's response,

however, “Mr. Braun does not appear to contend, or to allege any facts to support, that

he is or has ever been an officer, agent, contractor, or guarantor of a contractor, so as to

bring him within the class of persons to invoke section 1494 pursuant to the statute’s plain

terms.” As such, defendant argues that “any claims now based on section 1494 should

be dismissed for lack of jurisdiction or, alternatively, for failure to state a claim.” Plaintiff

then filed a difficult to follow “Reply to Response to Motion for Guidance” requesting that

“the court not seriously consider the new legal argument that 28 USC 1494 does not give

this court Jurisdiction over at least the First Claim in the law suite.” Plaintiff asserts that

he “their for request that the court consider [defendant's] argument as untimely and not

consider it in its deliberation.” Plaintiff's filing seems to assert that his claims fall under 28

U.S.C. § 1494, not because of his supposed status as “an officer, agent or contractor of

the United States, but under 31 U.S Code 3702, claims off my type are settled buy the

Director of the Office and Management and Budget. And | believe he qualifies as an

officer, agent or contractor with the United States Government.” Plaintiff then proceeds to

allege “in the governments untimely and comical remarks, they halve argued that 28 USC

1494 does not apply, but | you make this argument, then you would now halve to present

a believable reason as to why 5 USC 703 does not apply.” Further, plaintiff states that

“703 clearly gives the right to proceeded in court and review any agency action in a civil

or criminal proceeding .. . . [T]here is clear sub paragraph that states this would also

include agency inaction.” Plaintiff also alleges “there is a large request before the court to

xerert it teeth and correct the records that are causing the submissions under 3702 to not

be responded to. This gives jurisdiction to this claim under 702 in that it is requests the

court consider non monetary issues.”

In addition to repetitive and disjointed and unproductive filings in this case, the

court notes that it appears that plaintiff has filed numerous lawsuits in federal courts on a

variety of issues, many revolving around similar allegations of illegal surveillance, failure

to provide him with requested information, and governmental interference. Plaintiff's

previously filed suits include one additional complaint filed in the United States Court of

Federal Claims and multiple complaints in Federal District Courts, including the United

States District Court for the District of Montana, the United States District Court for the

District of Columbia, and the United States District Court for the Northern District of

California. Plaintiff's earlier suit filed in the United States Court of Federal Claims, Braun

v. United States, Case No. 18-1521C, alleged that federal agencies had violated plaintiff's

“right to due process by their failure to provide him with the complete results of any

investigation each agency undertook pursuant to Plaintiff's Privacy Act and FOIA

requests.” Braun v. United States, No. 18-1521C, slip op. at 2 (Fed. Cl. Mar. 11, 2019).

The Judge in Case No. 18-1521C granted defendant's motion to dismiss, finding no

jurisdiction over plaintiff's Fifth and Fourteenth Amendment claims because they were not

“money-mandating,” as well as finding no jurisdiction “over Plaintiffs claims of identity

theft, negligence, and invasion of privacy, as this Court lacks jurisdiction [over] claims

sounding in tort.” Braun v. United States, No. 18-1521C, slip op. at 3. Plaintiff appealed

this decision to the United States Court of Appeals for the Federal Circuit, which

subsequently dismissed plaintiffs appeal for failure to prosecute, as plaintiff neither paid

the filing fee nor filed a brief. See Braun v. United States, No. 19-1711 (Fed. Cir. June 28,

2019).

Plaintiff also filed a complaint in the United States District Court for the District of

Montana pursuant to 5 U.S.C. § 552a(g)(1), demanding “monetary damages from the

[NSA] for its alleged failure to disclose an extensive investigation into Braun’s daily life

and its alleged involvement in his uninvited psychiatric treatment.” See Braun v. Nat'l Sec.

Agency, No. 6:15-0018, 2015 WL 12591720, at *1 (D. Mont. Oct. 30, 2015). The United

States District Court for the District of Montana in Braun v. National Security Agency

concluded:

NSA’s sovereign immunity has not been waived. Braun brings his claim

under the Privacy Act, which provides for limited remedies. The Court may

order NSA to order the production of documents; it may also issue as

damages “reasonable attorney fees and other litigation costs reasonably

incurred in any case under this paragraph in which the complainant has

substantially prevailed.” § 552a(g)(3)(A), (B). The Privacy Act waives

immunity only to the extent of the expressly allowed damages; sovereign

7

immunity is not waived as to Braun’s claim for $750,000 in damages.

Braun's objection requesting further time to seek waiver cannot succeed

where the statute unequivocally states the extent of waiver.

Nor may Braun proceed to seek the remedies allowed by statute. Braun has

failed to state a claim upon which relief may be granted. Following Braun's

request for records, NSA produced all records required under the Privacy

Act. NSA’s invocation of exemptions expressly provided under § 552a(b)

and (k) of the Privacy Act cannot give rise to a cause of action under

subsection (g) of the same act. Braun’s objection does not cure his initial

failure to state a claim upon which relief may be granted because he has

not asserted any basis in law or fact for an argument against application of

the statutory exemptions.

Braun v. Nat'l Sec. Agency, 2015 WL 12591720, at *1. The United States District Court

for the District of Montana entered judgment in favor of the government on November 2,

2015. Braun v. Nat'l Sec. Agency, No. 6:15-0018 (D. Mont. Nov. 2, 2015).

Plaintiff also filed suit in the United States District Court for the District of Columbia,

asserting that “[iJn other suites the Plaintiff has been illegally wiretapped. It is also possible

that [the ‘datapoint’] added in gaining access to the Plaintiffs electronics.” See Complaint

at 2, Braun v. Fed. Bureau of Investigation, No. 18-2145 (D.D.C. Sept. 14, 2018). Mr.

Braun cited to the Freedom of Information Act and the Privacy Act and took issue with the

government’s responses to his requests for records searches. On July 25, 2019, the

United States District Court for the District of Columbia granted defendant's motion for

summary judgment and denied Mr. Braun’s motion for summary judgment. See Braun v.

Fed. Bureau of Investigation, No. 18-2145, 2019 WL 3343948, at *7 (D.D.C. July 25,

2019).

DISCUSSION

The court recognizes that plaintiff is proceeding pro se. When determining whether

a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, a pro se

plaintiff is entitled to a more liberal construction of the pro se plaintiff's pleadings. See

Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se

complaint be held to “less stringent standards than formal pleadings drafted by lawyers’),

reh’g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),

reh’g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322

(Fed. Cir. 2014); Jackson v. United States, 143 Fed. Cl. 242, 245 (2019); Diamond v.

United States, 115 Fed. Cl. 516, 524 (2014), aff'd, 603 F. App’x 947 (Fed. Cir.), cert.

denied, 135 S. Ct. 1909 (2015). However, “there is no ‘duty [on the part] of the trial court

-.. to create a claim which [plaintiff] has not spelled out in his [or her] pleading... .”

Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original) (quoting

Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clark v. Nat'l Travelers Life

Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed.

Cl. 89, 94, aff'd, 443 F. App’x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl.

8

249, 253 (2007). “While a pro se plaintiff is held to a less stringent standard than that of

a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden

of establishing the Court's jurisdiction by a preponderance of the evidence.” Riles _v.

United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9; and

Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2002)); see also Hale v. United States, 143 Fed. Cl. 180, 184 (2019) (“[E]ven

pro se plaintiffs must persuade the court that jurisdictional requirements have been met.”

(citing Bernard v. United States, 59 Fed. Cl. 497, 499, affid, 98 F. App’x 860 (Fed. Cir.

2004))); Golden v. United States, 129 Fed. Cl. 630, 637 (2016); Shelkofsky v. United

States, 119 Fed. Cl. 133, 139 (2014) (“While the court may excuse ambiguities in a pro

se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.” (quoting

Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995))); Harris v. United States, 113

Fed. Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent

standard, such leniency ‘with respect to mere formalities does not relieve the burden to

meet jurisdictional requirements.” (quoting Minehan v. United States, 75 Fed. Cl. at 253)).

“Subject-matter jurisdiction may be challenged at any time by the parties or by the

court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing

Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh'g and reh’g

en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also St. Bernard

Parish Gov't v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019) (“[T]he court must

address jurisdictional issues, even sua sponte, whenever those issues come to the court’s

attention, whether raised by a party or not, and even if the parties affirmatively urge the

court to exercise jurisdiction over the case.” (citing Foster v. Chatman, 136 S. Ct. 1737,

1745 (2016)); Int'l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed.

Cir. 2007). The Tucker Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this court as

follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);

see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.

Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487

F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,

552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable

under the Tucker Act. The claim must be one for money damages against the United

States... .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United

States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116

(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that

creates the right to recovery of money damages against the United States.”); Jackson v.

United States, 143 Fed. Cl. at 245. In Ontario Power Generation, Inc. v. United States,

the United States Court of Appeals for the Federal Circuit identified three types of

monetary claims for which jurisdiction is lodged in the United States Court of Federal

Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver... . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))....

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastport $.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “oarticular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 US.

[392,] 401-02 [(1976)] ("Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unless, as the Court

of Claims has stated, that basis ‘in itself. . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a “money-mandating”

statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004): see

also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon “can fairly be

interpreted as mandating compensation by the Federal Government.” United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see

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also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.

Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.

Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief

must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.

at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional

provision[] that operate[s] to waive sovereign immunity for claims premised on other

sources of law (e.g., statutes or contracts).”). “If the statute is not money-mandating, the

Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject

matter jurisdiction.” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,

1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);

see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United

States, 402 F.3d at 1173 (noting that the absence of a money-mandating source is “fatal

to the court's jurisdiction under the Tucker Act”); Jackson v. United States, 143 Fed. Cl.

at 245 (“If the claim is not based on a ‘money-mandating’ source of law, then it lies beyond

the jurisdiction of this Court.” (citing Metz v. United States, 466 F.3d 991, 997 (Fed. Cir.

2006)).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant's favor. See Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's motion to dismiss, a

judge must accept as true all of the factual allegations contained in the complaint.” (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,

1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as

true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));

Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.

2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

“Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiffs claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)),

reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97

Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.

Cl. 710, 713 (2010). A plaintiff need only state in the complaint “a short and plain

statement of the grounds for the court's jurisdiction,” and “a short and plain statement of

the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2019); Fed. R.

Civ. P. 8(a)(1), (2) (2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl.

Corp. v. Twombly, 550 U.S. at 555-57, 570). To properly state a claim for relief,

“Iclonclusory allegations of law and unwarranted inferences of fact do not suffice to

support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J.,

concurring in part, dissenting in part) (quoting C. WRIGHT AND A. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723

(7th Cir. 1981) (“[C]onclusory allegations unsupported by any factual assertions will not

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withstand a motion to dismiss.”), affd, 460 U.S. 325 (1983). “A plaintiff's factual

allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from

conceivable to plausible.” Three S Consulting v. United States, 104 Fed. Cl. 510, 523

(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App’x 964 (Fed.

Cir.), reh’g denied (Fed. Cir. 2014); see also Hale v. United States, 143 Fed. Cl. at 190.

As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor

does a complaint suffice if it tenders ‘naked assertion[s] devoid of ‘further factual

enhancement.” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. at 555).

In its motion to dismiss for lack of subject matter jurisdiction, defendant alleges

that “Mr. Braun asserts that he is a civilian (not a military serviceman or veteran) who is

asserting two claims pursuant to section 552a(g)(1) of the Privacy Act of 1974, as

amended (5 U.S.C.). ‘Claim 1’ seeks monetary damages related to the Government's

alleged withholding of documents. ‘Claim 2’ seeks to compel production and correction of

agency records and money damages.”

As noted above, plaintiff alleges that “Claim Number 1” “is a result of the NSA

denying a record request... . The records that were not furnished buy the agency were

results off requested investigations [by plaintiff] from the Military intelligence facility.” In

“Claim Number 1,” plaintiff contends that, in response to plaintiffs “exhibited record

request, the NSA, through their FOIA [Freedom of Information Act] office failed to comply

and produce the requested records.” Plaintiff asserts that the “requested records” “would

halve implicated a third party in multiple instances, including illegal wire tapping and

surveillance, and engaging in plain closed military intelligence activities on American

Civilians on American Soil.” Due to the NSA’s alleged withholding of the agency's

“records” requested by plaintiff, plaintiff claims that “the Agency/US Government assumes

the Liability” for any “civil implications” under “the Civil clause off the Privacy Act 5 USC

552a(g)(1)(b).” As also noted above, plaintiff's “Claim Number 2” in the case before this

court focuses on the existence of an unidentified “Datapoint” in a federal database. In the

above-captioned case, in support of “Claim Number 2,” plaintiff alleges that the

“Datapoint” causes a “mechanical failure of a Civil Background Check’ that “fails to clear

[plaintiff] for civil activity” and “prevents any kind off out of court or administrative

settlement.” Plaintiff also contends that “I halve tried to ask them, who exactly supports

these systems, who would contact about this, |.E. is this the FBI. The DoD has several

datacenters, they are simply un-responsive. They refuse to answer any questions about

it.”

Plaintiff's allegations in both “Claim Number 1” and “Claim Number 2” in the above-

captioned complaint allege claims under the Privacy Act, 5 U.S.C. § 552a(g)(1). The

Privacy Act, 5 U.S.C. § 552a(g)(1), provides that “the district courts of the United States

shall have jurisdiction” over civil actions concerning the relevant statute. See 5 U.S.C.

§ 552a(g)(1). “Although the Privacy Act creates a civil cause of action for monetary

damages, the Act expressly vests jurisdiction for such claims in the United States District

Courts.” Parker v. United States, 77 Fed. Cl. 279, 291 (2007) (citing 5 U.S.C.

12

§ 552a(g)(1)), aff'd, 280 F. App’x 957, 958 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2008). “The Federal Circuit has clearly held... that this court lacks jurisdiction

to consider Privacy Act claims.” Ghaffari v. United States, 125 Fed. Cl. 665, 667 (2016)

(quoting Bush v. United States, 627 F. App’x 928, 930 (Fed. Cir. 2016) (citing Treece v.

United States, 96 Fed. Cl. 226, 232 (2010))); see also Rebish v. United States, 120 Fed.

Cl. 184, 188 (2016) (“To the extent that Mr. Rebish intended to allege that the Bureau

committed violations of the Privacy Act, jurisdiction over such a claim would lie in district

court, not the Court of Federal Claims.” (citing 5 U.S.C. § 552a(g)(1))); Madison v. United

States, 98 Fed. Cl. 393, 395 (2011); Treece_v. United States, 96 Fed. Cl. at 232;

Stephanatos v. United States, 81 Fed. Cl. 440, 444-45 (2008).§ Any claims that plaintiff

wishes to pursue under the Privacy Act can only be brought ina District Court, and cannot

be brought in this court. The court, therefore, lacks jurisdiction over plaintiff's alleged

claims under the Privacy Act.’

Notwithstanding the above, plaintiff asserts that “28 U.S. Code 1494(1)” grants this

court jurisdiction over his claims because following his submission to the NSA for

settlement, “over three years have elapsed without settlement and no suit has been

brought by the United States.” From this lack of settlement, plaintiff argues, “this court

has the right to proceeded and adjudicate this claim as directed under 28 U.S. Code

1494.” In plaintiff's “Motion For Guidance,” plaintiff alleges that defendant “did not in any

way present any argument as to why 28 USC 1494 did not apply.” Defendant's

subsequent response to plaintiff's “Motion For Guidance” contends that “[t]o the extent

[plaintiff] now seeks to assert claims based on section 1494, such claims should be

dismissed for lack of jurisdiction or, in the alternative, for failure to state a claim.”

Defendant argues that 28 U.S.C. § 1494 applies to an unsettled account of an officer,

agent, or contractor of the United States. Defendant alleges, however, that “Mr. Braun

6 In an unpublished decision, the United States Court of Appeals for the Federal Circuit

stated that, “while ‘the Privacy Act creates a civil cause of action for monetary damages,

the Act expressly vests jurisdiction for such claims in the United States District Courts.”

Bias v. United States, 722 F. App’x 1009, 1014 (Fed. Cir. 2018) (quoting Parker v. United

States, 77 Fed. Cl. at 291 (citing 5 U.S.C. § 552a(g)(1))); see also Conner v. United

States, 641 F. App’x 972, 975 (Fed. Cir. 2016) ("We also agree with the [United States

Court of Federal Claims] that it lacks jurisdiction over Privacy Act claims .. . because the

federal district courts possess exclusive jurisdiction over such matters.” (citing 5 U.S.C.

§ 552a(g)(1))). The Federal Circuit in Bias also observed that the Privacy Act fails to

“contain{[] money-mandating provisions that would give the Court of Federal Claims

jurisdiction over claimed violations of the Act.” Bias v. United States, 722 F. App’x at 1014

(citing Frazier v. United States, 683 F. App’x 938, 940 (Fed. Cir. 2017)).

7 The court notes that in addition to the court lacking jurisdiction over the plaintiff's claims,

given previously filed case and prior decisions on the same subject matter and on the

same operative facts, in other federal courts, including Braun v. National Security Agency,

2015 WL 12591720 and Braun v. Federal Bureau of Investigation, 2019 WL 3343948, Mr.

Braun may also be prevented from bringing his claims in this court under the doctrine of

res judicata and 28 U.S.C. § 1500 (2018).

13

does not appear to contend, or to allege any facts to support, that he is or has ever been

an officer, agent, contractor, or guarantor of a contractor, so as to bring him within the

class of persons to invoke section 1494 pursuant to the statute's plain terms.”

Under Section 1494, this court has “jurisdiction to determine the amount, if any,

due to or from the United States by reason of any unsettled account of any officer or agent

of, or contractor with, the United States,” provided (1) claimant applies to the proper

department for settlement, (2) three years have elapsed since plaintiffs application, and

(3) claimant has not previously brought a suit on the claim in the United States. See 28

U.S.C. § 1494. The United States Court of Federal Claims lacks jurisdiction if plaintiff

“fails to allege sufficient facts to establish jurisdiction, pursuant to 28 U.S.C. § 1494.”

Striplin v. United States, 100 Fed. Cl. 493, 498 (2011) (citing RCFC 12(b)(1)); see also

Watson v. United States, 86 Fed. Cl. 399, 402 (2009) (holding if plaintiff is unable to meet

the requirements of Section 1494, the United States Court of Federal Claims does not

have jurisdiction over the claim)).® Plaintiff cannot prevail on the basis of 28 U.S.C. § 1494

because plaintiff has not alleged that he is “officer or agent of, or contractor with, the

United States.” On multiple occasions in his filings before this court, plaintiff expressly

denies any employment relationship with the government: “I also halve never been

employed or signed an employment contract buy the US Government or the US Military.”

Thus, plaintiff cannot successfully raise a claim under Section 1494 and, to the extent

plaintiff attempts to assert his claims under 28 U.S.C. § 1494, this court must dismiss

plaintiff's claims for lack of jurisdiction.

Plaintiff further alleges that this court has jurisdiction over plaintiff's claims under

the Administrative Procedure Act (APA) in sections 702 and 703 until Title 5. See 5 U.S.C.

§§ 702, 703 (2018). According to plaintiff, “703 clearly gives the right to proceeded in

court and review any agency action in a civil or criminal proceeding” and, further, plaintiff

asserts that “there is a large request before the court to xerert it teeth and correct the

records that are causing the submissions under 3702 to not be responded to. This gives

jurisdiction to this claim under 702 in that it is requests the court consider non monetary

issues.”

Defendant responds that plaintiffs “APA claims are outside this Court’s limited

jurisdiction because the APA does not authorize an award of money damages at all; to

the contrary, section 10(a) of the APA, 5 U.S.C. § 702, specifically limits the Act to action

seeking relief other than money damages.” (internal quotation marks omitted) (quoting

Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006)). Section 703 of the

8 Certain decisions in the United States Court of Federal Claims have concluded that

plaintiff has either failed to state a claim upon which relief can be granted or lacks standing

to make a claim pursuant to Section 1494, instead of finding a lack of jurisdiction. See,

e.g., Roberson v. United States, 115 Fed. Cl. 234, 241 (2014) (holding that if plaintiff fails

to meet any of the statute’s criteria or if plaintiff does “not allege[] that [he or] she is an

officer, agent of, or contractor with the United States,” “the court must dismiss plaintiff's

claims under 28 U.S.C. § 1494 for failure to state a claim upon which relief can be

granted”).

14

Administrative Procedure Act (APA), 5 U.S.C. § 703, “entitles a person legally wronged

by agency action to seek judicial review, thus waiving sovereign immunity of the United

States.” Strand v. United States, 138 Fed. Cl. 633, 638 (2018) (citing 5 U.S.C. § 703;

Weaver v. United States, 46 Fed. Cl. 69, 76 (2000)). Under Section 702 of the APA, “Tal

person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial

review thereof.” 5 U.S.C. § 702. The relief authorized under the APA, however, is not an

award for money damages, “to the contrary, section 10(a) of the APA, 5 U.S.C. § 702,

specifically limits the Act to actions ‘seeking relief other than money damages.” Wopsock

v. Natchees, 454 F.3d at 1333 (citation omitted in original). “Consequently, the Court of

Federal Claims lacks jurisdiction over APA claims.” Albino v. United States, 104 Fed. Cl.

801, 815 (2012) (citing Martinez v. United States, 333 F.3d 1295, 1303, 1314 (Fed. Cir.

2003)). As such, the “Federal district courts—not the Court of Federal Claims—are the

proper fora for APA actions.” Stroughter v. United States, 89 Fed. Cl. 755, 762-63 (2009)

(citing 5 U.S.C. § 703; Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed.

Cir. 2005)); see also Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)

(affirming the United States Court of Federal Claims holding “that it lacks the general

federal question jurisdiction of the district courts, which would allow it to review the

agency's actions and to grant relief pursuant to the Administrative Procedure Act, 5 U.S.C.

§§ 701-706 (1994)”); Allen v. United States, 140 Fed. Cl. 550, 563 (2018) (citing

Stroughter v. United States, 89 Fed. Cl. at 763); Amber Res. Co. v. United States, 68

Fed. Cl. 535, 544 (2005), aff'd, 538 F.3d 1358 (Fed. Cir. 2008) (“In the absence of a

contrary statute, a challenge to administrative discretion can only be reviewed in district

court pursuant to the APA.”). Thus, to the extent that plaintiff asserts claims under 5 U.S.C

§§ 702 and 703, such APA claims must be dismissed for lack of subject matter jurisdiction.

CONCLUSION

For the reasons discussed above, defendant's motion to dismiss is GRANTED.

Plaintiff's complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT

consistent with this Opinion.

IT IS SO ORDERED.

fhedbisch

-“MARIAN BLANK HORN

Judge

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