Thundathil v. Sessions, 709 F. App'x 880

Background

Plaintiff Christina Thundathil, a former Army service member (2002–2004), alleged she was raped in 2004, that Army CID investigation was inadequate, and that she was later retaliated against and charged under Article 15.
She sought correction of military records (removal of an Article 15 "false report" charge) through the Army Board for Correction of Military Records (ABCMR) and was denied relief.
Thundathil filed suit in federal district court alleging a mix of causes of action (Bivens, Privacy Act, § 1983, Civil Rights Act, Nassar-based retaliation), but proceeded pro se in district court and later obtained counsel on appeal.
The district court dismissed the First Amended Complaint for lack of subject-matter jurisdiction as to military/DoD defendants (except a Privacy Act theory) and for failure to state a claim; it denied as moot a motion to transfer to the Court of Federal Claims.
On appeal Thundathil abandoned most claims and argued primarily that the district court erred by not treating her pleading as seeking judicial review of the ABCMR decision and by failing to transfer any Tucker Act claim to the Court of Federal Claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the First Amended Complaint sufficiently alleged a claim seeking judicial review of the ABCMR decision (APA review)	Thundathil contends her complaint and attachments gave notice of an adverse ABCMR decision and sought judicial review/correction of records	Defendants argued complaint did not identify a final ABCMR decision or invoke the APA, and claims pleaded were Privacy Act and other theories, not APA review	Court held complaint did not pled a cognizable APA/ABCMR judicial-review claim; two stray references did not put parties on notice and the ABCMR letter was not part of the operative pleading
Whether the district court had subject-matter jurisdiction over compensatory relief tied to military-record correction (Tucker Act/Court of Federal Claims)	Thundathil argued the court should have transferred any Tucker Act claim to the Court of Federal Claims	Defendants argued plaintiff had elected not to pursue monetary/Tucker Act relief in her First Amended Complaint	Court held plaintiff did not articulate a Tucker Act monetary claim in the operative complaint and denying transfer was not an abuse of discretion (transfer denied as moot)
Whether the First Amended Complaint states plausible claims (Privacy Act, Bivens, § 1983, retaliation)	Thundathil argued she alleged Privacy Act violations and other constitutional/retaliation claims	Defendants moved to dismiss for lack of jurisdiction and failure to state a claim	Court held that, aside from the dismissed Privacy Act theory, other claims failed to state plausible claims and dismissal was proper
Whether appellate record deficiencies warranted summary affirmance or review of the district court decision	Thundathil’s appendix omitted key district-court filings and included documents not filed below	Defendants pointed to inadequate appendix as reason for summary affirmance	Court admonished counsel for deficient appendix but exercised discretion to review the district-court record and proceeded to decide merits; affirmed dismissal

Key Cases Cited

Milligan-Hitt v. Bd. of Trs., 523 F.3d 1219 (10th Cir. 2008) (appellate duty to review only materials included in appellant's appendix; court may decline to consider omitted record items)
Travelers Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118 (10th Cir. 2003) (appeal may be summarily affirmed where appendix is inadequate)
Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906 (10th Cir. 2009) (limitations on appellate review when relevant materials are sealed or missing from appendix)
Satterfield v. Malloy, 700 F.3d 1231 (10th Cir. 2012) (standard of review for Rule 12(b)(1) and 12(b)(6) dismissals)
Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006) (abuse-of-discretion standard for denial of transfer)
Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007) (an amended complaint supersedes the original complaint)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard under Rule 8/Twombly/Iqbal)
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (pro se litigants must follow procedural rules and plead sufficient facts)
Hammons v. Saffle, 348 F.3d 1250 (10th Cir. 2003) (pro se plaintiffs must allege underlying facts supporting legal theories)
Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. 2008) (servicemembers may seek judicial review of ABCMR decisions under the APA)
Burkins v. United States, 112 F.3d 444 (10th Cir. 1997) (Tucker Act vests exclusive jurisdiction over certain monetary claims in the Court of Federal Claims)