BRAUN v. USA

Filing 17

Order of Dismissal granting 5 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Mary Ellen Coster Williams. (ac7) Service on parties made.

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No. 18-1521C
(Filed: March 11' 2019)
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DAVID STEPHEN BRAUN,
Plaintiff,
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THE UNITED STATES,
Defendant.
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ORDER OF DISMISSAL

WILLIAMS, Senior Judge.
This matter comes before the Court on Deiendant's motion to dismiss' For the reasons
stated below, Defendant's motion to dismiss is granted.

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plaintilf pro se David Braun is a resident of the state of Montana. Plaintiff alleges that he
as the
has been ttie victim of illegal wiretapping and electronic surveillance by unnamed parties
result ofthe United States Postal Service ("Postal Service") adding two fictitious individuals with
criminal backgrounds, to the postal database as residents at Plaintiffs address' Compl.2 Plaintiff
states that he has filed four law suits, three in the United States District Court for the District of
Columbia and one in the United States District Court for the District of Montana, and has made
numerous requests pursuant to the Privacy Act of 1974 and the Freedom of Information Act
and Budget, the Federal
C,FOIA") to ihe Naiional Security Agency, the Office of Management
i,rr"uu oi In,r"rtigation, and the United States Postal Service Olfice oflnspector General regarding
the postal Servici's alleged tampering with Plaintiff s mail and electronic surveillance. Compl'
2-5; see qenerally Compl. Attachs. 1-104. Plaintiff alleges that he has been denied due process
due to thi failure of theie agencies to provide him with the results of any agency investigations,
and that he has suffered an invasion ofprivacy due to alleged wiretapping, electronic surveillance,
This background is derived from Plaintiffls complaint and the 104 pages of exhibits.

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and identity theft. Id. at 1. Plaintiff seeks damages in the form
$100,000,000 as well as annual payment of$10,000,000 for life.

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lump sum payment of

Discussion

Plaintiff has the burden of establishing subject-matter jurisdiction in this Court. See
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,748 (Fed. Cir. 1988). The Court must
dismiss the action if it finds subject-matter jurisdiction to be lacking. Adair v. United States, 497
F3d 1244, 1251 (Fed. Cir.2007). The Court assumes all factual allegations as true, and will
construe the complaint in a manner most favorable to Plaintiff when ruling on a motion to dismiss
pursuant to Rule 12(b)(1). Pennineton Seed. Inc. v. Produce Exch. No. 299,457 F.3d 1334' 1338
(Fed. Cir.2006).

ofplq se litigants are held to "'less stringent standards than formal pleadings
drafted by lawyers."' Naskar v. United States, 82 Fed. Cl. 319, 320 (2008) (quoting Haines v.
The filings

Kerner,404 U.S .519,520 (1972)). However, p1q se plaintiffs still bear the burden ofestablishing
the court's jurisdiction and must do so by a preponderance of the evidence. See Reynolds, 846
F.2dat748 Tindle v. United States,56 Fed. Cl.337,341 (2003).
The Tucker Act provides that this Court:
shall have jurisdiction to renderjudgment 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. $ 1a91(a)(1) (2012). The Tucker Act is not money-mandating, but rather is

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jurisdictional statute. United States v. Testan,424U.5.392,398 (1976). To establish jurisdiction,
a plaintiff must seek money damages under a source of substantive law. "[T]he claimant must
demonstrate that the source of substantive law he relies upon 'can fairly be interpreted as
mandating compensation by the Federal Government for the damages sustained. "' United States
v. Mitchell, 463 u.s. 206,216-17 (1983) (quoting Testm,424 U.S. at 400); see Jan's HelicoDter
Serv.. Inc. v. Fed. Aviation Admin. , 525 F.3d 1299, 1306 (Fed. Cir. 2008) ('[A] plaintiff must
ia"trtiiy u separate source of substantive law that creates the right to money damages." (internal
citation and quotation marks omitted)).
Plaintiff alleges that the National security Agency, the office of Management and Budget,
the Federal Bureau of Investigation, and the United States Postal Service Office of Inspector
General violated his right to due process by their failure to provide him with the complete results
ofany investigation each agency undertook pursuant to Plaintiff s Privacy Act and FOIA requests.
However, this Court lacks jurisdiction over this claim, as the Due Process clauses of the Fifth and
Fourteenth Amendments are not money-mandating. LeBlanc v. United States, 50 F.3d 1025,1028
(Fed. Cir. 1995). Nor does this Court have jurisdiction over Plaintiff s claims of identity theft,
negligence, and invasion ofprivacy, as this Court lacksjurisdiction claims sounding in tort' Rick's
Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir' 2008); Reid v United
States, 95 Fed. Cl. 243,249 (2010) (finding that identity theft and invasion of privacy sound in
tort).

Although Plaintiff invokes 42 U.S.C. $ 1983, 5 U.S.C. $ 552a(gx1)(s), 31 U.S.C. $
3702({(), and 28 U.S.C. $ 1339 as bases for this Court's jurisdiction, none of these statutory
provisions grant this Courtjurisdiction over Plaintiffs claims. Jurisdiction over civil rights claims
brought pursuant to 42 U.S.C. $ 1983 is vested exclusively in the district courts, and this Court is
not a district court. Shame v. United States, 112 Fed. CI.468, a76 Q013); Del Rio v' United
States, 87 Fed. Cl. 536, 540 (2009). Section 552a(gx1)(B) of Title 5, a provision ofthe Privacy
Act that govems records maintained on individuals, provides a civil remedy to an individual in the
district courts when an agency "refuses to comply with an individual request" for access to an
individual's record "or to any information pertaining to him" in that agency's system ofrecords.
5U.S.C.$552a(g)(1)(B)(2012);Addinetonv.UnitedStates,94Fed.Cl'779,784(2010)' Section
3702(a)(4) of Title 31, entitled authority to settle claims, is not money-mandating and provides no
right of action. Curtin v. United States, 91 Fed. Cl. 683, 687 (2010). Section 1339 of Title 28,
entitled Postal matters, grants jurisdiction over "any civil action arising under any Act ofCongress
related to the postal service" exclusively to the district courts. 28 U.S.C. $ 1339 (2012); Elgin
Builders. Inc. v. United States, 10 Cl. Ct. 40, 42 (1986).
Conclusion
Defendant's motion to dismiss is GRANTED. Plaintiff s motions for corrective action
and for a hearing are DENIED as moot. The Clerk is directed to dismiss this action'