UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
DAVID S. BRAUN, )
)
Plaintiff, )
)
v. ) Civ. Action No. 17-1050 (EGS)
)
OFFICE OF MANAGEMENT AND )
BUDGET, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff, David Steven Braun, alleges that defendant,
Office of Management and Budget (“OMB”), must be compelled to
“process and settle” four claims that Mr. Braun has submitted to
federal agencies requesting various forms of relief. Mr. Braun
asserts that such an order would be proper under the Barring
Act, 31 U.S.C. § 3702(a)(4), which he submits requires the
federal government to settle all claims.
Pending before the court are three motions. First, OMB
moves to dismiss Mr. Braun’s claims pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Def.’s Mot. to Dismiss, ECF No.
12. Second, Mr. Braun asks that the Court order OMB to process
one of his four claims “independently from the other three.” See
Pl.’s Mot. to Process Fourth Claim, ECF No. 15. Third, Mr. Braun
requests that the Court schedule a Rule 16 conference so that
the parties can move toward summary judgment. See Pl.’s Mot. for
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a Rule 16(b)(1)(B) Conf., ECF No. 17. For the following reasons,
the Court GRANTS OMB’s motion to dismiss, and DENIES Mr. Braun’s
motion to process the fourth claim and motion for a Rule 16
conference as moot.
I. BACKGROUND
A. Factual Background
Mr. Braun asserts that the basis of this lawsuit are four
claims that he has submitted to various agencies. See Compl.,
ECF No. 1 at 1. 1 Specifically, he points to the following four
claims:
a. Claim Exhibit 1 shows the submission of a
claim based on a [National Security Agency]
record request denial. This falls under the
Privacy Act.
b. Claim Exhibit 2 shows a claim submission
based on a [Federal Communications
Commission] record request denial. This
claim is governed buy 2 the Privacy Act.
c. Claim Exhibit 3 shows a claim submission
based on a [Federal Bureau of Investigation]
1 Mr. Braun does not number all of the paragraphs in his
complaint, nor does his complaint contain page numbers. As such,
for ease of reference, the Court refers to both the paragraph
numbers (where available) and the page numbers designated by ECF
when citing to the complaint. Likewise, because Mr. Braun does
not include page numbers on the exhibits to his complaint or his
motion papers, the Court refers to the page numbers designated
by ECF when citing to these documents.
2
Mr. Braun's complaint and motion papers are riddled with
significant spelling and grammatical errors. Accordingly, the
Court does not include [sic] after each error when quoting Mr.
Braun's complaint or motion papers.
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record request denial. This claim is
Governed buy the Privacy Act.
d. Claim Exhibit 4 shows a claim that was
based on add hock court cases and tort
submissions as well as one privacy act case.
This was small and intended to be processed
easily and quickly.
Compl. ¶ 1, ECF No. 1 at 2.
Mr. Braun also attaches 33 pages of exhibits to his
complaint. See ECF No. 1-1. Mr. Braun’s exhibits indicate that
the first claim at issue in this lawsuit was created “when the
[National Security Agency] FOIA/PA office denied [his] record
request for result of investigation/contacts” that he had made
to that agency. Compl. Ex. 1, ECF No. 1-1 at 1. Mr. Braun states
that he “did notify the agency that [he] believed [he] had a
claim with a standard form 95 on 2/3/2014.” Id. 3 Mr. Braun
acknowledges that a magistrate judge in a federal civil suit
related to his records request to the National Security Agency
dismissed Mr. Braun’s case after finding that the records were
properly withheld by the agency. Id.
Mr. Braun’s second claim was submitted to OMB as an
“official request to initiate a settlement/claim against the US
government for correcting the liability that was created when
3
Standard Form 95 is a form developed by the Department of
Justice to facilitate agency processing of claims under the
Federal Tort Claims Act. Chung v. Chao, 518 F. Supp. 2d 270, 272
n.2 (D.D.C. 2007).
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the [Federal Communications Commission] Denied [his] [FOIA]
request’s for results off investigation from the consumer call
Center and [Federal Communications Commission] Enforcement.”
Compl. Ex. 2, ECF 1-1 at 2. Mr. Braun again acknowledges that a
federal court upheld the agency’s denial of his record request.
Id. Mr. Braun further asserts that, after the denial of his
request, he submitted a claim on Standard Form 95 to the Federal
Communications Commission in which he had requested $300,000 “a
month for life in financial assistance.” Id.
Mr. Braun’s third claim was also submitted to OMB. This
claim related to the Federal Bureau of Investigation’s denial of
a “records request for all off the results for requested
criminal investigations.” Compl. Ex. 3, ECF No. 1-1 at 3. Mr.
Braun again acknowledges that a federal court found that the
records were properly withheld and again asserts that he
submitted a Standard Form 95 requesting damages. See id., ECF
No. 1-1 at 6, 10.
Finally, Mr. Braun’s fourth claim to OMB is based on a tort
claim submitted to the Social Security Administration. See
Compl. Ex. 4, ECF No. 1-1 at 11-13. This claim appears to stem
from the Social Security Administration’s delay in approving Mr.
Braun’s request for disability payments. Id. at 11.
In this lawsuit, Mr. Braun asserts that, pursuant to 31
U.S.C. § 3702(a)(4), "the Federal Government is required to
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settle all claims." Compl., ECF No. 1 at 4. Accordingly, he asks
that OMB "simply introduce an Attorney and process and Seattle
the submitted claims as it would for any other US citizen." Id.
at 5. Mr. Braun also requests that the Court “unbundle[]” the
four claims and process the fourth claim on an expedited basis.
See Pl.’s Mot. to Process the Fourth Claim, ECF No. 15. Finally,
Mr. Braun requests a Rule 16 conference to “discuss facilitating
settlement . . . or setting a scheduling order for say putting
the 4 claims on the docket as a summary judgment and allowing
the bench to process the claim as a Judgment.” See Pl.’s Mot.
for Rule 16(b)(1)(B) Conf., ECF No. 17.
II. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotation marks omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
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on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). A claim is facially
plausible when the facts pled in the complaint allow the court
to "draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. The standard does not amount to
a "probability requirement," but it does require more than a
"sheer possibility that a defendant has acted unlawfully." Id.
"[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint." Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotation marks omitted). In addition, the court must
give the plaintiff the "benefit of all inferences that can be
derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). A "pro se complaint is
entitled to liberal construction." Washington v. Geren, 675 F.
Supp. 2d 26, 31 (D.D.C. 2009) (citation omitted). Even so,
"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements" are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
III. ANALYSIS
Mr. Braun brings this lawsuit pursuant to the Barring Act,
31 U.S.C. § 3702(a). In relevant part, that statute provides:
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(a) Except as provided in this chapter
or another law, all claims of or against the
United States Government shall be settled as
follows:
(1) The Secretary of Defense shall
settle--
(A) claims involving uniformed service
members' pay, allowances, travel,
transportation, payments for unused accrued
leave, retired pay, and survivor benefits;
and
(B) claims by transportation carriers
involving amounts collected from them for
loss or damage incurred to property incident
to shipment at Government expense.
(2) The Director of the Office of
Personnel Management shall settle claims
involving Federal civilian employees'
compensation and leave.
(3) The Administrator of General
Services shall settle claims involving
expenses incurred by Federal civilian
employees for official travel and
transportation, and for relocation expenses
incident to transfers of official duty
station.
(4) The Director of the Office of
Management and Budget shall settle claims
not otherwise provided for by this
subsection or another provision of law.
Id. Mr. Braun points to this last provision which requires OMB
to “settle claims not otherwise provided for” as support for his
requested relief – i.e., an order compelling OMB to process the
four outstanding claims previously submitted by Mr. Braun to
various agencies.
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In its motion to dismiss, OMB asserts that Mr. Braun’s
lawsuit must be dismissed because the four claims arise under
other, specific statutes, thereby precluding recovering under
the Barring Act. See Def.’s Mot. to Dismiss, ECF No. 12 at 5.
Specifically, because Mr. Braun’s claims arise under the Privacy
Act and the Social Security Act, OMB argues that they are not
subject to the catch-all provision of the Barring Act. Id.
(citing West’s Fed. Admin. Prac. § 516). 4
The Barring Act specifically directs OMB to settle claims
“not otherwise provided for by this subsection or another
provision of law.” 31 U.S.C. § 3702(a)(4). Here, three of Mr.
Braun’s claims are governed by the Privacy Act, while the fourth
is governed by the Social Security Act. See generally Compl. and
Exs. 1-3, ECF Nos. 1 and 1-1. Mr. Braun’s only remedy for a
denial of access to records under the Privacy Act is an order to
the agency to provide the improperly withheld records. 5 U.S.C.
§ 552(a)(g)(3)(A). The Court may also order the agency to pay
reasonable attorneys’ fees. Id. § 552(a)(g)(3)(B). Plaintiff is
not entitled to any other damages. Because these provisions of
the Privacy Act govern Mr. Braun’s first three claims, he cannot
4
Although the treatise cited pertains to the Government
Accountability Office – an agency that reports to Congress and
is not part of the executive branch – the treatise explains that
the Legislative Branch Appropriations Act of 1996 transferred
claim settlement authority from the Government Accountability
Office to OMB. See West’s Fed. Admin. Prac. § 516 n.1.
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pursue these claims under the Barring Act. See 31 U.S.C. §
3702(a) (explaining that the section applies “[e]xcept as
provided in this chapter or another law”). Likewise, the Social
Security Act sets forth the sole basis for challenging a denial
of disability benefits, and damages are not available to Mr.
Braun under that Act. See 42 U.S.C. § 405(g); Rattler v. Sec. of
Health and Human Servs., No. 11-cv-729, 2011 WL 3841604 (D.D.C.
2011). Accordingly, Mr. Braun may not pursue his fourth claim
under the Barring Act either. Therefore, OMB’s motion to dismiss
the complaint is GRANTED, and this case is DISMISSED. Moreover,
in light of the dismissal of Mr. Braun’s claims, his motion to
process the fourth claim independently is denied as moot, as is
his motion for a scheduling conference. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
SIGNED: Emmet G. Sullivan
United States District Judge
March 20, 2018
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