Braun v. United States

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
DAVID STEVEN BRAUN,
Plaintiff,
v.
UNITED STATES,
Defendant.
REPORT AND RECOMMENDATION
TO GRANT DEFENDANT’S MOTION
TO DISMISS (DOC. NO. 8)
AND DISMISS ACTION WITHOUT
PREJUDICE
Case No. 1:25-cv-00074
District Judge David Barlow
Magistrate Judge Daphne A. Oberg
David Braun, proceeding without an attorney, brought this action against the
United States under the Administrative Procedures Act1 and Privacy Act,2 seeking to
correct unspecified information about him in a government database somewhere.3 Mr.
Braun believes this information is causing him to fail background checks, preventing him
from fostering casual and romantic relationships, thwarting his access to government
agencies and his success in the court system, denying his access to weight-loss drugs,
and interfering with his personal and financial transactions.4
1 5 U.S.C. §§ 701–706.
2 5 U.S.C. § 552a.
3 (See Compl., Doc. No. 1.)
4 Mr. Braun previously filed a case in this district asserting similar claims against the
United States. See Braun v. United States, No. 1:22-cv-00108, 2023 U.S. Dist. LEXIS
169684 (D. Utah July 19, 2023) (unpublished), R. & R. adopted, 2023 U.S. Dist. LEXIS
169133 (D. Utah Sept. 21, 2023) (unpublished).
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The United States has moved to dismiss for lack of subject-matter jurisdiction
and failure to state a claim.5 Mr. Braun opposes the motion. Although the United
States claims sovereign immunity, it has waived immunity under the APA and the
Privacy Act. Nevertheless, the court lacks jurisdiction over Mr. Braun’s APA claims
where he fails to allege a final agency action. Mr. Braun also fails to state a plausible
claim for relief under the Privacy Act. Accordingly, the undersigned6 recommends the
district judge grant the motion to dismiss and dismiss this action without prejudice.
BACKGROUND7
Mr. Braun brought this non-monetary “corrective action” to fix information about
him that he believes the United States government is storing in a database
somewhere.8 He does not know what the information is, where it is stored, or which
5 (Mot. to Dismiss (Mot.), Doc. No. 8.)
6 This case is referred to the undersigned magistrate judge under 28 U.S.C.
§ 636(b)(1)(B). (See Doc. No. 6.)
7 The following allegations, which are assumed true for purposes of addressing the
motion to dismiss, are from Mr. Braun’s complaint and (where appropriate) the attached
exhibits and court records referenced therein. Review of these latter materials does not
require the court to convert the motion to dismiss into a motion for summary judgment.
See Brown v. City of Tulsa, 124 F.4th 1251, 1263–64 (10th Cir. 2025) (explaining that
on a motion to dismiss, a court may consider “documents attached to the complaint as
exhibits” and “matters subject to judicial notice”); Hodgson v. Farmington City, 675 F.
App’x 838, 840–41 (10th Cir. 2017) (unpublished) (explaining that “facts subject to
judicial notice may be considered in a Rule 12(b)(6) motion” without converting it into a
motion for summary judgment, including “another court’s publicly filed records
concerning matters that bear directly upon the disposition of the case at hand” (internal
quotation marks omitted)).
8 (See Compl. ¶¶ 1, 3, Doc. No. 1.) In describing where he believes the government is
storing the erroneous information, Mr. Braun uses various terms, including “database,”
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federal agency is responsible.9 But he believes the database is causing him to fail
background checks, which is preventing him from fostering casual and romantic
relationships.10 He contends “people locally” are unfriendly after running a background
check on him.11 And although women will talk to him online, they will not date or start a
relationship with him.12 He has been unable to determine what the background checks
say or why he is “failing” them.13
Mr. Braun claims the database issue also prevents his efforts to have the
government fix the erroneous information.14 According to Mr. Braun, his requests to
several agencies to correct his information have either been unsuccessful, gone
unanswered, or failed to fix the problem.15 For instance, his requests to the FBI and
“databases,” “datacenter,” “datacenters,” “facility,” and “facilities.” (See, e.g., id. ¶¶ 3,
20, 21.) For clarity, this report and recommendation uses the term “database.”
9 (Id. ¶¶ 30–31.)
10 (Id. ¶¶ 90–133 (Counts 3 and 4 seeking to “correct” the “matrimonial” and “local”
background checks).)
11 (Id. ¶¶ 21, 111.)
12 (Id. ¶¶ 20, 90–95, 97–98.)
13 (Id. ¶¶ 31, 105.)
14 (See id. ¶¶ 50–89 (Count 1 seeking to “correct” the database issue’s effect on his
ability to “experience any administrative civil process”); see also id. ¶¶ 147–51 (Count 6
seeking review of “complaints to the CIA”); id. ¶¶ 209–14 (Count 9 seeking review of
“unreviewed complaints” to federal agencies).)
15 (Id. ¶¶ 4, 50, 52, 64.)
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CIA in 2016 and 2018 were unsuccessful.16 He submitted five “complaints” to the CIA
between April 2020 and February 2021, but the “building ca[u]sing these problems” has
not been “shut down or corrected.”17 Other submissions to the Department of
Homeland Security and Office of Inspector General “did not correct the problems.”18
The Office of Management and Budget (OMB) did not respond to multiple requests to
correct the database issue and settle claims.19 And Mr. Braun has been unable to
submit a request to “the Congressional Liaison” to the United States Attorney General
or the “executive branch to discuss the issue.”20
Relatedly, Mr. Braun claims the database itself is somehow thwarting his efforts
to correct his information through the courts.21 He has filed cases in this district22 and
other federal and state courts.23 But he “has never been able to obtain a scheduling
16 (Id. ¶¶ 7–9, 11.)
17 (Id. ¶¶ 147–50.)
18 (Id. ¶¶ 209, 209a.) The complaint includes two paragraphs numbered 209. (See id.
at 56, 57.)
19 (Id. ¶¶ 58–60.) For instance, Mr. Braun contends a former OMB director failed to
respond to one request, in violation of the Barring Act, 31 U.S.C. § 3702. (Id. ¶ 58.)
20 (Id. ¶¶ 25, 120, 130.)
21 (Id. ¶¶ 69–89 (seeking “correction of civil process in state and federal court houses”).)
22 (See id. ¶¶ 16, 52, 70 (referencing Braun v. United States, No. 1:22-cv-00108 (D.
Utah filed Aug. 24, 2022).)
23 (See id. ¶ 71.)
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order with a trial date.”24 He suspects the database is “preventing the normal flow” of
his cases, which have been “strangely dismissed” in “very strange long winded”
opinions.25 He believes “something that is being checked” in the database prevents
courts from setting a schedule and trial date.26
Apart from hindering his efforts to correct the database, Mr. Braun claims the
database causes other issues in his personal life. For instance, he contends the
database somehow prevents him from obtaining a weight-loss drug.27 It is unclear what
federal agency “is responsible for this.”28 But he alleges the government’s database is
screening Medicare policy holders and forcing “vendors” to deny access to or coverage
for the drug.29
In addition, Mr. Braun claims the government is accessing and using his
information to somehow affect or interfere with his personal and financial
“transactions.”30 He alleges his personal messages are “being exported” to a federal
24 (Id. ¶ 69.)
25 (Id. ¶¶ 70, 74–75, 87.)
26 (Id. ¶¶ 72, 83.)
27 (Id. ¶¶ 162–208 (seeking to “correct the Force Majeure” clause on his Medicare policy
to ensure he is covered for and receives Mounjaro).)
28 (Id. ¶ 195.)
29 (Id. ¶¶ 29, 195–96.)
30 (Id. ¶¶ 134–46 (Count 5 claiming the government is improperly accessing and using
“secure messaging data”); id. ¶¶ 152–61 (Count 7 claiming the government is
improperly accessing and using “electronic financial transaction data”); id. ¶¶ 215–38
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entity and “used to cause issues.”31 The government allegedly has access to his
“remote financial transactions,” which always “essentially end up as schemes” that have
caused him “to wire money into space.”32 For example, he has received unsolicited
messages for crypto investments and women interested in dating.33 At first, the
investments were profitable, but then the accounts “disappeared.”34 And the women he
was messaging and sending money to never showed up.35 One woman Mr. Braun
wired money to in Kazakhstan just asked for more money.36 Another woman was in “a
strange car accident.”37 Another got stuck in Dubai, asked him for money, then lost
contact.38 He suspects the database is causing these issues.39
(Count 10 claiming the government is engaging in “terrorism” by using “matrimonial” and
“civil” background checks to prevent “transaction[s]”).)
31 (Id. ¶ 140.)
32 (Id. ¶¶ 155, 157.)
33 (Id. at 37.)
34 (Id.)
35 (Id. ¶¶ 137, 153, 215–20.)
36 (Id. ¶¶ 153, 215–18.)
37 (Id. ¶¶ 137, 219–20.)
38 (Id. ¶¶ 221–24.)
39 (Id. ¶ 232.)
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Mr. Braun asserts ten causes of action based on these allegations. He seeks to
correct the “administrative civil process” (Count 1),40 the “civil process” in state and
federal court (Count 2),41 the “matrimonial” and “local” background checks (Counts 3
and 4),42 and his Medicare policy to ensure he receives Mounjaro, a weight-loss drug
(Count 8).43 He requests review of his complaints to the CIA and other federal agencies
(Counts 6 and 9).44 And separately he claims the government is improperly accessing
and using his “secure messaging data” and “electronic financial transaction data”
(Counts 5 and 7)45 and engaging in “terrorism” by using the background checks to
prevent “transaction[s]” (Count 10).46
Deciphering the legal basis for each of Mr. Braun’s claims is challenging. He
generally relies on various criminal statutes, the Privacy Act, and the Administrative
Procedure Act.47 But at the core, he brings an APA challenge; he claims the United
40 (Id. ¶¶ 50–89.)
41 (Id. ¶¶ 69–89.)
42 (Id. ¶¶ 90–133.)
43 (Id. ¶¶ 162–208.)
44 (Id. ¶¶ 147–51, 209–14.)
45 (Id. ¶¶ 134–46, 152–61.)
46 (Id. ¶¶ 215–38.)
47 (Id. ¶ 1.)
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States has violated the APA with regard to all counts.48 In addition, Mr. Braun relies on
subsections (g)(1)(C), (g)(1)(D), and (e) of the Privacy Act for Counts 1 through 4.49
And he cites four criminal statutes—18 U.S.C. §§ 241, 242, 245, and 1343—in three of
his counts.50 Although Mr. Braun generally cites 42 U.S.C. § 1983, he does so only in
reference to the court’s jurisdiction. He does not link any specific claims to this
statute.51 Finally, Mr. Braun seeks various forms of non-monetary relief, asking the
court: to correct the database information (including whatever is preventing his
administrative submissions and court cases); to remove the problematic background
checks; to review his agency submissions, messaging data, and personal and financial
transactions; to shut down the database and replace it with a new one; and to ensure
any involved individuals are charged criminally.52
LEGAL STANDARDS
The United States moves to dismiss the complaint for lack of subject-matter
jurisdiction and failure to state a claim. Rule 12(b)(1) of the Federal Rules of Civil
48 (Id. ¶¶ 54, 57, 80, 99–100, 103, 122–23, 126,141, 150, 157, 199, 212 (citing 5 U.S.C.
§§ 702, 703); id. at 63 (same).)
49 (Id. ¶¶ 58, 61–63, 78, 81–82, 99, 101, 104, 122–24, 127 (citing 5 U.S.C. §§ 552a,
552a(g)(1)(C), 552a(g)(1)(D), or 552a(e)).)
50 (Id. ¶¶ 130, 157; id. at 63.)
51 Mr. Braun briefly cites § 1983 in Counts 2 and 5 as a basis for jurisdiction, but he
does not make any claims under the statute. (Id. ¶¶ 82, 141.) Both counts are properly
construed as APA challenges, based on the allegations in the complaint.
52 (Id. ¶¶ 64–68, 83–88, 105–10, 128–33, 142–46, 151, 158–61, 201, 204, 213–14,
237–38.)
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Procedure permits dismissal for lack of subject-matter jurisdiction.53 “The federal courts
are courts of limited subject-matter jurisdiction” and, as such, “may only hear cases
when empowered to do so by the Constitution and by act of Congress.”54 It is the
plaintiff’s burden to establish the court has subject-matter jurisdiction over his claims.55
He “must ‘allege in his pleading the facts essential to show jurisdiction,’ and ‘must
support them by competent proof.’”56 A motion to dismiss under Rule 12(b)(1) may
mount a facial attack, which looks only to the allegations in the complaint, assumes
them to be true, and argues they fail to establish jurisdiction.57 When a federal court
concludes it lacks subject-matter jurisdiction, the action must be dismissed.58
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for
“failure to state a claim upon which relief can be granted.”59 To avoid dismissal under
this rule, a complaint must allege “enough facts to state a claim to relief that is plausible
53 Fed. R. Civ. P. 12(b)(1).
54 Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015) (citation omitted).
55 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998).
56 U.S. ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 551 (10th Cir. 1992) (quoting
McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)) (alterations
changed to original).
57 See Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020).
58 Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
59 Fed. R. Civ. P. 12(b)(6).
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on its face.”60 At the motion to dismiss stage, courts accept well-pleaded factual
allegations as true and view them in the light most favorable to the plaintiff, drawing all
reasonable inferences in the plaintiff’s favor.61 But a court need not accept a plaintiff’s
conclusory allegations as true.62 “[A] plaintiff must offer specific factual allegations to
support each claim,”63 and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”64
Because Mr. Braun proceeds pro se (without an attorney), his filings are liberally
construed and held “to a less stringent standard than formal pleadings drafted by
lawyers.”65 Still, a pro se plaintiff must follow the same procedural rules as other
litigants.66 For instance, a pro se plaintiff “still has the burden of alleging sufficient facts
on which a recognized legal claim could be based.”67 While courts make some
allowances for a pro se plaintiff’s “failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity
60 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
61 Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
62 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
63 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
64 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
65 Hall, 935 F.2d at 1110.
66 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
67 Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation marks
omitted).
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with pleading requirements,”68 courts “will not supply additional factual allegations to
round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”69
DISCUSSION
The United States contends the court lacks subject-matter jurisdiction over Mr.
Braun’s claims “brought pursuant to” 28 U.S.C. § 1331, 28 U.S.C. § 1339, and 42
U.S.C. § 1983 because the United States has not waived sovereign immunity under
these statutes.70 In addition, the government argues the court lacks jurisdiction over Mr.
Braun’s claims under § 702 and § 703 of the APA because (1) he fails to allege a final
agency action under § 702, and (2) no private right of action exists under § 703.71 Next,
the government argues the court lacks jurisdiction over claims brought under criminal
statutes because they do not provide a private cause of action.72 Finally, the United
States asserts Mr. Braun otherwise fails to state a claim under subsections (g)(1)(C)
and (g)(1)(D) of the Privacy Act.73
68 Hall, 935 F.2d at 1110.
69 Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (citation omitted).
70 (Mot. 6–8, Doc. No. 8.)
71 (Id. at 8–10.)
72 (Id. at 10–11.)
73 (Id. at 11–15.) The government also argues Mr. Braun fails to state a claim under 28
U.S.C. § 1346, (id. at 15), but this is a jurisdictional statute, not an independent cause of
action. See Gonzalez v. U.S. Air Force, 88 F. App’x 371, 377 (10th Cir. 2004)
(unpublished) (explaining that 28 U.S.C. § 1346(a) “is itself only a jurisdictional statute;
it does not create any substantive right enforceable against the United States for money
damages” (quoting United States v. Testan, 424 U.S. 392, 398 (1976))); Clark v. United
States, 234 F. Supp. 3d 1127, 1135 (D. Colo. 2014) (explaining that 28 U.S.C.
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Mr. Braun’s opposition is difficult to follow.74 He does not substantively address
the sovereign immunity issue.75 But he states he “is not [o]pposed to dismissing this
action on 12(b)(1) grounds.”76 Elsewhere, Mr. Braun argues some of his APA claims
can be addressed through “appropriate remanding action” under 28 U.S.C. § 1491.77
Finally, he notes the United States’ failure to address the fact that his Privacy Act claims
cite to subsection (e).78 Mr. Braun does not respond to the government’s other
arguments in his opposition.
§ 1346(b) “does not itself create a substantive cause of action against the United
States; rather, it provides a mechanism for bringing a state law tort action against the
federal government in federal court” (quoting Lomando v. United States, 667 F.3d 363,
372 (3d Cir. 2011))). The complaint cannot fairly be read as asserting a claim under this
statute, where Mr. Braun only cites it once without explanation, none of the alleged facts
apply, and Mr. Braun explicitly states this suit is for “non[-]monetary corrective action.”
(Compl. ¶ 1, Doc. No. 1.)
74 (Resp. to Mot. (Opp’n), Doc. No. 9.)
75 (See id. at 2 (stating he filed the complaint “under the spirit of Sovereign Immunity”).)
76 (Id. at 11.)
77 (Id. at 4 (referencing Counts 1 through 4 and 8).) Where 28 U.S.C. § 1491 generally
vests the United States Court of Federal Claims and district courts with jurisdiction over
certain contract-based monetary claims against the United States, it does not apply to a
non-contract suit for non-monetary corrective action. See 28 U.S.C. § 1491(a)
(providing Court of Federal Claims with exclusive jurisdiction over certain claims,
including contract claims, against the United States); id. § 1491(b) (providing Court of
Federal Claims and district courts with concurrent jurisdiction over actions objecting to
solicitations by a federal agency for “bids or proposals for a proposed contract or to a
proposed award or the award of a contract” or an allegedly unlawful “procurement or a
proposed procurement”).
78 (Opp’n 2, Doc. No. 9.)
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The motion to dismiss should be granted. As explained below, the government’s
sovereign immunity argument is misplaced, where Mr. Braun’s claims are brought under
the APA and the Privacy Act and those statutes contain waivers of sovereign immunity.
However, the court lacks jurisdiction over Mr. Braun’s APA claims because he fails to
allege any final agency action (or inaction). And Mr. Braun fails to state a claim under
the Privacy Act or criminal statutes. Accordingly, all claims should be dismissed.
A. Sovereign Immunity
As an initial matter, the United States contends it has sovereign immunity from
Mr. Braun’s claims “brought pursuant to” 28 U.S.C. § 1331, 28 U.S.C. § 1339, and
42 U.S.C. § 1983.79 It is true that, as a sovereign, the United States is immune from
lawsuits unless it has statutorily consented to being sued.80 But Mr. Braun does not
bring claims under any of these statutes. He only cites them as a basis for this court’s
jurisdiction.81 Indeed, sections 1331 and 1339 are jurisdictional statutes which do not
give rise to independent causes of action.82 And while 42 U.S.C. § 1983 does provide a
79 (Mot. 8, Doc. No. 8.)
80 See United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Sherwood,
312 U.S. 584, 586 (1941); United States v. Thompson, 98 U.S. 486, 489 (1878).
81 (See Compl. ¶¶ 1, 81–82, 99, 104, 122, 127, 141, 199, Doc. No. 1.)
82 See 28 U.S.C. § 1331 (providing federal district courts “shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States”);
28 U.S.C. § 1339 (providing federal district courts “shall have original jurisdiction of any
civil action arising under any Act of Congress relating to the postal service”); Hanson v.
Wyatt, 552 F.3d 1148, 1157 (10th Cir. 2008) (explaining that 28 U.S.C. § 1331 does not
create substantive rights); Unicover Corp. v. U.S. Postal Serv., 859 F. Supp. 1437, 1443
(D. Wyo. 1994) (explaining that 28 U.S.C. § 1339 does not itself “create a cause of
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cause of action,83 Mr. Braun’s reference to § 1983 as a jurisdictional basis cannot
reasonably be construed as raising claims under that statute. Although he briefly cites
§ 1983 in counts 2 and 5,84 those counts challenge the federal government’s actions (or
inaction) in failing to correct the database problem. Mr. Braun makes no arguments
related to § 1983 and he does not outline any facts that could make up a § 1983
claim.85 Accordingly, the United States’ sovereign immunity argument is misplaced.
Instead, Mr. Braun brings his claims under the Privacy Act, the APA, or both.86
Because the United States has waived its sovereign immunity under these statutes,87
sovereign immunity does not bar Mr. Braun’s claims.
action” and instead “merely give[s] [district courts] jurisdiction over an otherwise existing
cause of action”).
83 See 42 U.S.C. § 1983 (providing a civil action for “deprivation of any rights, privileges,
or immunities secured by the Constitution and [federal] laws” by a person acting under
color of state law); see also Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir. 2017)
(explaining § 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred” (citation omitted)).
84 (Compl. ¶¶ 82, 141, Doc. No. 1.)
85 If the complaint could fairly be read to include claims under § 1983, the government
would be correct that sovereign immunity would bar such claims. Section 1983 applies
“only to actions by state and local entities, not the federal government.” Beals v. U.S.
Dep’t of Justice, 460 F. App’x 773, 775 (10th Cir. 2012) (unpublished). And § 1983
does not waive the United States’ sovereign immunity. Id.
86 (Compl. ¶¶ 58, 61–63, 78, 81–82, 99, 101, 104, 122–24, 127, Doc. No. 1 (citing 5
U.S.C. §§ 552a, 552a(g)(1)(C), 552a(g)(1)(D), or 552a(e)); id. ¶¶ 54, 57, 80, 99–100,
103, 122–23, 126,141, 150, 157, 199, 212 (citing 5 U.S.C. §§ 702, 703); id. at 63
(same).)
87 See Rural Water Sewer & Solid Waste Mgmt. v. City of Guthrie, 654 F.3d 1058, 1070
(10th Cir. 2011) (“Generally, the United States, through the APA, has waived its
sovereign immunity to ‘[a]n action in a court of the United States seeking relief other
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B. APA Claims (All Counts)
Mr. Braun brings all his claims under the APA, which authorizes judicial review of
agency action.88 But under the APA, the court has “jurisdiction to review only final
agency actions.”89 As explained below, because Mr. Braun fails to allege a final agency
action, the court lacks jurisdiction over his APA claims.
Section 702 of the APA “authorizes suit by ‘[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within
the meaning of a relevant statute.’”90 To establish a claim under the APA, a plaintiff
than money damages.’” (quoting 5 U.S.C. § 702)); Harrell v. Fleming, 285 F.3d 1292,
1293 (10th Cir. 2002) (“Congress waived the sovereign immunity of the United States
when it enacted the Privacy Act but imposed a two-year statute of limitations.”).
88 Mr. Braun purports to bring counts 1 and 5 through 10 under § 702 of the APA.
(Compl. ¶¶ 57, 141, 150, 157, 199, 212, Doc. No. 1; id. at 63.) And he purports to bring
counts 1 through 5, 8, and 10 under § 703 of the APA. (Id. ¶¶ 54, 80, 99–100, 103,
122–23, 126, 141, 199; id. at 63.) Section 702 provides a right of judicial review to a
person adversely affected by agency action, while section 703 addresses the form of
the action and venue. See 5 U.S.C. §§ 702, 703. The government urges dismissal of
the claims brought under § 703 because that section, in isolation, does not create a
right of action. (Mot. 10, Doc. No. 8.) But sections 701 through 706 of the APA, in
combination, provide a framework for judicial review of agency actions. See 5 U.S.C.
§§ 701–706; N. New Mexico Stockman’s Assoc. v. U.S. Fish & Wildlife Serv., 494 F.
Supp. 3d 850, 971 (D.N.M. 2020) (“The APA contains a framework for judicial review of
agency determinations.”). Construing Mr. Braun’s pro se complaint liberally, it is
apparent all his claims seek judicial review under the APA generally, regardless of the
particular section cited in each count. For this reason, the undersigned declines to
recommend dismissal of any counts on the basis that only § 703 is referenced.
89 Farrell-Cooper Mining Co. v. U.S. Dep’t of Interior, 864 F.3d 1105, 1109 (10th
Cir. 2017); see also New Mexico v. McAleenan, 450 F. Supp. 3d 1130, 1190 (D.N.M.
2020) (collecting Tenth Circuit cases finding a lack of final agency action to be a
jurisdictional issue).
90 Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702).
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must allege “an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority.”91 Accordingly, “agency action” is a
core and necessary element for judicial review.92
The APA defines “agency action” as “the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to act.”93 And
“[w]here no other statute provides a private right of action, the ‘agency action’
complained of must be ‘final agency action.’”94 That is, “the action must mark the
consummation of the agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature”—and it “must be one by which rights or obligations
have been determined, or from which legal consequences flow.”95
The United States is correct that Mr. Braun fails to allege a final agency action.
As discussed above, Mr. Braun generally claims his “submissions” to several agencies
have gone unanswered and his inaccurate database information (whatever and
wherever that may be) has not been corrected.96 Even setting aside that Mr. Braun
91 5 U.S.C. § 702.
92 Norton, 542 U.S. at 62 (explaining that §§ 702, 704, and 706(1) “all insist upon an
‘agency action’”).
93 Id. (referencing 5 U.S.C. § 551(13)); Utah Native Plant Soc’y v. U.S. Forest Serv., 923
F.3d 860, 865 (10th Cir. 2019) (quoting 5 U.S.C. § 551(13)).
94 Norton, 542 U.S. at 61–62 (quoting 5 U.S.C. § 704) (emphasis omitted).
95 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).
96 (See Compl. ¶ 25, Doc. No. 1.)
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does not know which agency is responsible for the database error,97 his allegations do
not suggest any agency took an action marking the end of the agency’s decision-
making process or determining legal rights or consequences. Although Mr. Braun
alleges facts suggesting some finality on his denied requests under the Freedom of
Information Act,98 he does not challenge those denials here.99 Nor does he bring a
FOIA claim or sue any agency directly—he sues only the United States.100 Mr. Braun’s
APA claims are not based on any final agency action, in the typical sense.
However, the thrust of Mr. Braun’s complaint concerns government inaction in
the face of his Privacy Act requests to various agencies. The APA’s definition of
97 (Id. ¶¶ 30–31.)
98 (Id. ¶¶ 7–9 (citing TF Ex. 1 to Compl., Doc. No. 1-2 at 1 (2016 FOIA and Privacy Act
request to FBI); TF Ex. 2 to Compl., Doc. No. 1-2 at 2 (2016 response from FBI stating it
“conducted a search” but was “unable to identify” responsive records); TF Ex. 3 to
Compl., Doc. No. 1-2 at 3 (2017 letter from the Department of Justice “affirming the
FBI’s action” and explaining FOIA now permits him “to file a lawsuit in federal district
court in accordance with 5 U.S.C. § 552(a)(4)(B)”)); id. ¶ 209b (generally alleging FOIA
requests submitted to United States Marshals FOIA office, resulting in response and
appeal denial).) Two sets of numbered exhibits are attached to the complaint, with the
second set labeled “TF,” for unknown reasons. (See Doc. No. 1-2.)
99 None of Mr. Braun’s claims are based on the denied FOIA requests to the FBI. (Id.
¶ 56 (alleging “the FBI does not [have] jurisdiction over the facilities or facility causing
this problem” of agencies not responding or fixing the erroneous database information).)
And, although Count 9 references the FOIA requests to the United States Marshals
Service, that count is based on the government’s alleged failure to review Mr. Braun’s
requests seeking to fix the database issue, not to provide records.
100 See Braun, 2023 U.S. Dist. LEXIS 169684, at *9–10 (finding Mr. Braun failed to state
a FOIA claim because the United States was the “sole” defendant and FOIA only “gives
district courts jurisdiction to enjoin agencies” and order “production of agency records”).
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“agency action” also includes an agency’s “failure to act.”101 And although the APA’s
“final agency action” requirement “does not square well” with a failure to act, the
Supreme Court has “considered ‘what limits the APA places upon judicial review of
agency inaction.’”102 Specifically, a failure-to-act claim under the APA “can proceed
only where a plaintiff asserts that an agency failed to take a discrete agency action that
it is required to take.”103 “If the plaintiff plausibly alleges both elements . . . , the court
must then determine whether the agency ‘unlawfully withheld’ or ‘unreasonably delayed’
in carrying out its duty.”104
Here, Mr. Braun does not plausibly allege any agency failed to take an action it
was required to take. Instead, as noted, he broadly complains of an inability to contact
or receive responses from agencies and he contends the database issue remains
unfixed.105 But such broad allegations do not demonstrate a failure to take a legally
required discrete action.106 The most specific assertion in the complaint is that the OMB
101 5 U.S.C. § 551(13). Section 702, as noted above, authorizes claims “that an agency
or an officer or employee thereof acted or failed to act in an official capacity or under
color of legal authority.” 5 U.S.C. § 702 (emphasis added). See also Norton, 542 U.S.
at 62 (“The APA provides relief for a failure to act . . . .”).
102 Utah Native Plant Soc’y, 923 F.3d at 874 (quoting 5 U.S.C. § 551(13) and Norton,
542 U.S. at 61).
103 Norton, 542 U.S. at 64 (emphasis original).
104 Wyo-Ben Inc. v. Haaland, 63 F.4th 857, 875 (10th Cir. 2023) (quoting 5 U.S.C.
§ 706(1)).
105 (Compl. ¶¶ 25, 147–50, 58–60, 209–10, Doc. No. 1.)
106 See Norton, 542 U.S. at 64 (“The limitation to discrete agency action precludes . . .
broad programmatic attack[s.]”); id. at 65 (“The limitation to required agency action rules
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failed to act “as specified” in subsection (a)(4) of the Barring Act by not responding to
Mr. Braun’s requests to fix the database issue.107 But the Barring Act “establishes
default procedures for how a variety of ‘claims of or against the United States
Government shall be settled’” by certain agencies, including by the OMB.108 Although
the statute requires the government to settle claims it deems valid,109 the statute does
not require an agency response for every claim submitted.110 Accordingly, the OMB’s
failure to respond to Mr. Braun’s submissions does not demonstrate the agency failed to
take a discrete action the Barring Act required it to take.111
out judicial direction of even discrete agency action that is not demanded by law . . . .”
(emphasis original)). To the extent Mr. Braun bases his APA claims on Privacy Act
violations, he has not stated a Privacy Act claim, as explained below.
107 (Compl. ¶ 58, Doc. No. 1 (citing Ex. 10 to Compl., Doc. No. 1-1 at 33 (letter to the
“Director” of the OMB stating “this is an official submission off [sic] a claim against the
US Government under 31 U.S.[C.] [§] 3702(a)(4)” based on the database issue and
related Privacy Act and Freedom of Information Act claims)).)
108 Soto v. United States, 605 U.S. 360, 362 (2025) (quoting 31 U.S.C. § 3702(a)); see
also 31 U.S.C. § 3702(a)(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.”).
109 See Soto, 605 U.S. at 363 (explaining the “term settle . . . refers to determining the
amount of money a claimant is due” and “flows from the well-established principle that
. . . when the government determines that a claim is valid, the claim should be paid in
full” (citation modified)).
110 See generally 31 U.S.C. § 3702.
111 Mr. Braun does not characterize his assertion that the OMB failed to act in terms of
the agency’s failure to settle his Privacy Act or FOIA claim submissions as required
under the Barring Act. But even if he had, he fails to demonstrate the agency failed to
take a discrete and required action; the Barring Act only requires agencies to settle valid
claims, but Mr. Braun fails to state a claim under the Privacy Act (or FOIA). See Soto,
605 U.S. at 363 (explaining the first inquiry “relevant to settling a claim” is “whether the
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In short, Mr. Braun fails to allege facts demonstrating a final agency action (or
inaction), meaning the court lacks jurisdiction over his claims for judicial review under
the APA.
C. Failure to State a Claim Under the Privacy Act (Counts 1–4)
Next, the complaint fails to state a claim under the Privacy Act, which Mr. Braun
appears to assert in counts 1 through 4.112 In general, the Privacy Act “governs the
government’s collection and dissemination of information and maintenance of its
records.”113 The statute “allows individuals to gain access to government records on
them and to request correction of inaccurate records.”114 It also “gives agencies
detailed instructions for managing their records and provides for various sorts of civil
relief to individuals aggrieved by failures on the Government’s part to comply with the
requirements.”115 Specifically, a plaintiff can seek redress under the Privacy Act on four
grounds, two of which are relevant here: (1) for an agency’s failure to maintain accurate
claim is valid”); Gavin v. Dep’t of Air Force, 324 F. Supp. 3d 147, 152–53 (D.D.C. 2018)
(explaining that § 3702 “governs the processing of claims” and “merely invoking § 3702
does not satisfy [the plaintiff’s] obligation to explain the nature of the [underlying]
claim”).
112 (Compl. ¶¶ 58, 61–63, 78, 81–82, 99, 101, 104, 122–24, 127, Doc. No. 1 (citing
5 U.S.C. §§ 552a, 552a(g)(1)(C), 552a(g)(1)(D), or 552a(e)).)
113 Gowan v. U.S. Dep’t of Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998).
114 Id.
115 Doe v. Chao, 540 U.S. 614, 618 (2004).
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records (subsection (g)(1)(C)), and (2) for an agency’s failure to comply with any other
Privacy Act provisions causing an adverse effect (subsection (g)(1)(D)).116
In Counts 1 through 4, Mr. Braun asserts claims under these subsections by
alleging the government is failing to maintain accurate information on him and is not
complying with several of the Privacy Act’s record management requirements.117 He
fails to state a claim under either cause of action. Mr. Braun also cites to subsection
(e), which sets out various records requirements, including that agencies maintain only
relevant and necessary information collected directly from the individual (as much as
possible) and that they ensure accuracy and confidentiality.118 But relying on
subsection (e) alone is untenable because it is not a cause of action.
116 Gowan, 148 F.3d at 1187. Individuals may also seek redress under the Privacy Act
for an agency’s failure to review the denial of an amendment or to attach a statement of
disagreement (subsection (g)(1)(A)) and for an agency’s denial of access to records
(subsection (g)(1)(B)). Id. Mr. Braun does not assert causes of action or allege facts
supporting claims under these subsections. (Compl. ¶¶ 57, 61–63, 81–82, 99, 104,
122, 127, Doc. No. 1.)
117 (See Compl. ¶¶ 57, 61–63, Doc. No. 1 (seeking to correct the administrative
process); id. ¶¶ 81–82 (seeking to correct process in the courts); id. ¶¶ 99, 104 (seeking
to correct “matrimonial” background checks); id. ¶¶ 122, 127 (seeking to correct local
background checks).)
118 See 5 U.S.C. § 552a(e)(1) (requiring an agency to “maintain in its records only such
information about an individual as is relevant and necessary to accomplish” its
purpose); id. § 552a(e)(2) (requiring agencies to “collect information to the greatest
extent practicable directly from the subject individual”); id. § 552a(e)(5) (requiring an
agency to “maintain all records . . . with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness”); id. § 552a(e)(6)
(requiring that agencies “make reasonable efforts to assure that such records are
accurate, complete, timely, and relevant for agency purposes”); id. § 552a(e)(10)
(requiring agencies to “establish appropriate administrative, technical, and physical
safeguards to insure the security and confidentiality of records”).
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1. 	Failure to Maintain Accurate Records, 5 U.S.C. § 552a(g)(1)(C)
To start, Mr. Braun fails to state a claim under subsection (g)(1)(C) of the Privacy
Act. To establish a claim under subsection (g)(1)(C), a plaintiff must show: (1) “he has
been aggrieved by an adverse determination;” (2) the agency “failed to maintain his
records with the degree of accuracy necessary to assure fairness in the determination;”
(3) the agency’s “reliance on the inaccurate records was the proximate cause of the
adverse determination;” and (4) the agency “acted intentionally or willfully in failing to
maintain accurate records.”119
Here, Mr. Braun generally alleges the government is storing inaccurate
information about him in a database somewhere, and his requests to several agencies
have failed to correct this issue or gone unanswered.120 But he does not know what the
incorrect information is, where it is stored, or which agency is responsible.121 He has
been unable to submit a request to “the Congressional Liaison” to the United States
Attorney General or the “executive branch to discuss the issue.”122 He submitted five
“complaints” to the CIA, which he generally asserts has “failed to act in its full official
capacity” to “fully correct the problem.”123 Similarly, his submissions to the Department
119 Gowan, 148 F.3d at 1192 (citation omitted).
120 (Compl. ¶¶ 7–9, 11, 25, 58–60, 148, 150, 209, Doc. No. 1.)
121 (Id. ¶¶ 30–31.)
122 (Id. ¶ 25.)
123 (Id. ¶¶ 147–50.)
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of Homeland Security and Office of Inspector General “did not correct the problems.”124
And the OMB did not respond to multiple requests to correct the database issue.125
These allegations do not suggest any of the referenced agencies made an
adverse determination. Nor do they suggest any agency relied on inaccurate records or
intentionally or willfully failed to maintain accurate records on him. Indeed, it is even
unclear which agency Mr. Braun complains has failed to accurately maintain his
records. Accordingly, Mr. Braun fails to state a claim under subsection (g)(1)(C) of the
Privacy Act.
2. 	Record-Keeping Requirements, 5 U.S.C. § 552a(g)(1)(D)
Mr. Braun similarly fails to state a claim under subsection (g)(1)(D) of the Privacy
Act. To state a claim under subsection (g)(1)(D), a plaintiff must establish: (1) the
agency “failed to fulfill its record-keeping obligation;” (2) “the agency acted intentionally
or willfully” in so failing; (3) “the failure proximately caused an adverse effect” on the
124 (Id. ¶ 209a.)
125 (Id. ¶¶ 58–60.) Mr. Braun also alleges he submitted records requests and requests
to “correct[] the record” to the FBI and CIA in 2016 and 2018. (Id. ¶¶ 7–9, 11 (citing TF
Ex. 1 to Compl., Doc. No. 1-2 at 1 (August 18, 2016, Freedom of Information and
Privacy Act request to the FBI), TF Ex. 2 to Compl., Doc. No. 1-2 at 2 (November 22,
2016, response from FBI), and referencing Braun v. Fed. Bureau of Investigation, et al.,
No. 1:18-cv-02145, (D.D.C. Sept. 14, 2018) (asserting Privacy Act claims)).) It is
unclear whether Mr. Braun intended these requests to also serve as the basis for his
Privacy Act claims. Other allegations in the complaint suggest he did not. (See, e.g.,
id. ¶ 56 (alleging “the FBI does not [have] jurisdiction over the facilities or facility causing
this problem”).) Regardless, the allegations about these requests are insufficient to
state a Privacy Act claim. And they appear to be time-barred. See 5 U.S.C.
§ 552a(g)(5) (providing that a Privacy Act claim must be brought “within two years after
discovery by the individual”).
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plaintiff; and (4) he “suffered actual damages.”126 Mr. Braun asserts only conclusory
allegations of noncompliance with the Privacy Act’s record-keeping obligations.127 And
as explained above, it is unclear what information or records are at issue, which agency
failed in managing them, how the agency failed, or that any agency did so intentionally
or willfully. It is also unclear how the allegedly inaccurate information (whatever it may
be) in some unspecified agency’s records has proximately caused the issues Mr. Braun
complains of—agencies not responding to him (Count 1), courts not issuing scheduling
orders (Count 2), women not dating him (Count 3), or his neighbors not being friendly
(Count 4). For these reasons, Mr. Braun fails to state a claim under subsection
(g)(1)(D) of the Privacy Act.
3. 	5 U.S.C. § 552a(e)
Finally, Mr. Braun is correct that the United States did not address his reliance on
subsection (e) of the Privacy Act. But he fails to state a claim under subsection (e)
because it does not provide for a cause of action under the Privacy Act.128 Subsection
126 Speaker v. U.S. Dep’t of Health & Hum. Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010); see also Thompson v. Dep’t of State,
400 F. Supp. 2d 1, 8 (D.D.C. 2005) (similarly stating these elements), aff’d, 210 F. App’x
5 (D.C. Cir. 2006) (unpublished).
127 (Compl. ¶¶ 63, 81, 104, 127, Doc. No. 1 (alleging that “the records being maintained”
about him “are not relevant and necessary to accomplish the purpose of the agency,”
“were not collected from” him, “are not accurate and relevant,” “are routinely
disseminated” and no “effort is made to assure” accuracy, and the records “are in the
database” and “the integrity of the record system has been compromised”).)
128 See Gowan, 148 F.3d at 1187 (explaining that the Privacy Act only creates four
causes of action under subsections (g)(1)(A)–(D)).
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(g)(1)(D), the act’s catch-all provision, provides a vehicle for claims alleging violations of
other provisions of the Privacy Act129 (unless one of the other three causes of action
applies).130 But Mr. Braun fails to state a claim under either subsections (g)(1)(C) or
(g)(1)(D), as explained above, and subsection (e) does not provide an independent
cause of action. For these reasons, the complaint fails to state a claim under the
Privacy Act.
D. Failure to State a Claim Under 18 U.S.C. §§ 241, 242, 245, and 1343
Finally, to the extent he intends to, Mr. Braun fails to state a claim under
18 U.S.C. §§ 241, 242, 245, and 1343, which he references in counts 4, 7, and 10.131
129 See 5 U.S.C. § 552a(g)(1)(D) (“Whenever any agency . . . fails to comply with any
other provision of this section, . . . the individual may bring a civil action against the
agency, and the district courts of the United States shall have jurisdiction in the matters
under the provisions of this subsection.”).
130 See, e.g., Gowan, 148 F.3d at 1192 (precluding claim under 5 U.S.C. § 552a(e)(5)
and (g)(1)(C) for failing to maintain an accurate, relevant, timely, and complete record
where the record did not reside in a system of records); Doe v. United States, 821 F.2d
694, 697 n.8 (D.C. Cir. 1987) (en banc) (noting that the standard in subsection (e)(5) is
reiterated in (g)(1)(C)); see also Deters v. U.S. Parole Comm’n, 85 F.3d 655, 660–61 &
661 n.5 (D.C. Cir. 1996) (requiring suit under subsection (g)(1)(C), not (g)(1)(D), for
violation of subsection (e)(5)).
131 (Compl. at 63, Doc. No. 1 (citing 18 U.S.C. §§ 241 and 242); id. ¶ 130 (citing 18
U.S.C. § 245); id. ¶ 157 (citing 18 U.S.C. § 1343)); see also 18 U.S.C. § 241
(criminalizing conspiracies to interfere with rights); 18 U.S.C. § 242 (criminalizing
deprivation of rights under color of law); 18 U.S.C. § 245 (criminalizing interference with
federally protected activities); 18 U.S.C. § 1343 (criminalizing wire fraud).
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Because these criminal statutes do not provide for private civil causes of action,132 Mr.
Braun fails to state a plausible claim under them.133
* * *
In sum, the court lacks jurisdiction over Mr. Braun’s APA claims, and he fails to
state a claim for relief under the Privacy Act or any criminal statute. Accordingly, the
United States’ motion to dismiss should be granted and the complaint should be
dismissed without prejudice.134
132 See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.”); Tucker
v. U.S. Ct. of Appeals for Tenth Cir., 815 F. App’x 292, 294 (10th Cir. 2020)
(unpublished) (holding the plaintiff failed to state a claim under 18 U.S.C. §§ 241 and
242 because these “criminal statutes . . . do not provide for private civil causes of
action”); Henry v. Albuquerque Police Dep’t, 49 F. App’x 272, 273 (10th Cir. 2002)
(unpublished) (explaining it is “settled law” that § 241 and § 242 “like other [criminal]
statutes, do not provide for a private civil cause of action”); see also Clements v.
Chapman, 189 F. App’x 688, 692 (10th Cir. 2006) (unpublished) (affirming dismissal of
claims brought under 18 U.S.C. § 1343 because no private civil cause of action existed
to enforce that criminal statute); Kelly v. Rockefeller, 69 F. App’x 414, 415 (10th Cir.
2003) (unpublished) (“The district court correctly dismissed plaintiff’s claims under 18
U.S.C. § 241 and § 245, for failure to state a claim, because the criminal statutes do not
provide for private civil causes of action.”).
133 Although the government characterizes this issue as jurisdictional, (see Mot. 10–11,
Doc. No. 8), claims brought under statutes which do not provide a private cause of
action may properly be dismissed under Rule 12(b)(6) for failure to state a claim. See,
e.g., Tucker, 815 F. App’x at 294; Kelly, 69 F. App’x at 415.
134 Dismissal for lack of jurisdiction must be without prejudice. See Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006). Where all counts reference the APA,
and the court lacks jurisdiction over the APA claims, the undersigned recommends
dismissal of all claims without prejudice.
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RECOMMENDATION
Because the court lacks jurisdiction over Mr. Braun’s APA claims, and Mr. Braun
fails to state a plausible claim for relief under the Privacy Act or criminal statutes, the
undersigned recommends the district judge grant the United States’ motion to
dismiss135 and dismiss this action without prejudice.
Mr. Braun has the right to object to this Report and Recommendation within
fourteen days, and failure to object may be considered a waiver of objections.136
DATED this 3rd day of February, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
135 (Doc. No. 8.)
136 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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