Thundathil v. United States

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
______________________________________
)
CHRISTINA D. THUNDATHIL, )
)
Plaintiff, ) No. 19-1008C
)
v. ) Filed: March 12, 2021
)
THE UNITED STATES, )
)
Defendant. )
______________________________________ )

MEMORANDUM OPINION AND ORDER

On July 12, 2019, pro se Plaintiff Christina D. Thundathil filed this action, alleging

constitutional and statutory violations related to her claims for veterans benefits after she was

discharged from the United States Armed Forces. Before the Court is Defendant’s Motion for

Summary Dismissal of Plaintiff’s Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules

of the United States Court of Federal Claims (“RCFC”). For the reasons discussed below, Plaintiff

fails to state a claim subject to the limited jurisdiction of the Court. Even assuming jurisdiction is

properly invoked, Plaintiff fails to allege sufficient facts to state a plausible claim upon which

relief can be granted. Accordingly, Defendant’s Motion is GRANTED.

I. BACKGROUND

Although difficult to discern, Plaintiff’s allegations appear to be directed at purported

unlawful conduct related to her discharge from the Army “due to the United States alledgeing [sic]

that [Plaintiff] made up a rape accusation” and the “termination of healthcare” and “termination of
any benefits” following her discharge. Pl.’s Compl. at 5, ECF No. 1. 1 Plaintiff alleges that the

United States Department of Veterans Affairs (“VA”) incorrectly deemed her ineligible for

healthcare between September 29, 2010 and October 2012 based on records that inaccurately

reflected her discharge characterization. Id. at 9, 12-13. She alleges that the Army corrected her

discharge record in 2010, but the VA continued to rely on the incorrect record until 2015. Id. at

9, 12, 14. Plaintiff claims that Defendant “failed to follow their own laws, regulations, and policy

on correction of . . . records” and “failed on more than one occasion to give [Plaintiff] due process

rights.” Id. at 2. Additionally, Plaintiff alleges Defendant “took property from [Plaintiff] also

without due process,” id.; discriminated against her, id. at 8; and unlawfully disclosed her service

and benefit records, id. Plaintiff seeks monetary damages for the alleged harm that resulted,

including for medical and rehabilitation bills not covered by the VA. 2 See id. at 13.

Initially, Plaintiff argued that the Court possesses jurisdiction to grant relief pursuant to the

Due Process Clauses of the Fifth and Fourteenth Amendments, the Equal Protection Clause of the

Fifth Amendment, the Tucker Act, the Administrative Procedure Act (“APA”), and the Privacy

Act. Id. at 1, 3, 8. On September 10, 2019, Defendant moved to dismiss Plaintiff’s claims pursuant

to RCFC 12(b)(1) and 12(b)(6). Def.’s Mot. for Summ. Dismissal of Pro Se Compl., ECF No. 7.

In her opposition brief, Plaintiff abandoned the claims alleging violations of the Due Process

1
Plaintiff provided a short statement of her allegations in a form complaint and a more
fulsome narrative submission, which makes general reference to voluminous attached documents
and records.
2
Plaintiff is no stranger to the federal court system, having filed previous causes of action
stemming from the same or similar set of facts presented here. See, e.g., Thundathil v. Lynch, 2016
WL 5485123 (W.D. Okla. Sept. 29, 2016), aff’d, 709 Fed. App’x 880 (10th Cir. Sept. 19, 2017);
Thundathil v. Trump, et al., No. 18-2231 (M.D. Fla. Jan. 18, 2019).
2
Clauses of the Fifth and Fourteenth Amendments, the Equal Protection Clause, and the APA. 3

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. Dismissal at 1, ECF No. 8. Plaintiff clarified her

claims as alleging violations of the Takings Clause of the Fifth Amendment, the Fair Credit

Reporting Act (“FCRA”), and the Privacy Act. Id. at 1, 3. Plaintiff, for the first time, also claimed

that jurisdiction is founded on the existence of an implied-in-fact contract. Id.

Defendant contends that the Court lacks jurisdiction over Plaintiff’s Complaint because (1)

Plaintiff’s constitutional and statutory claims are not money-mandating and (2) statutory schemes

have displaced the Court’s jurisdiction. ECF No. 7 at 2-5; see also Def.’s Reply in Support of

Mot. for Summ. Dismissal at 3-4, ECF No. 9. Additionally, Defendant argues that Plaintiff’s

claims are time barred, and that Plaintiff’s allegations fail to state any cognizable claim. ECF No.

7 at 5-6; see also ECF No. 9 at 3-4.

This case was transferred to the undersigned on December 21, 2020. Defendant’s Motion

is fully briefed and ripe for decision.

II. DISCUSSION

A. Jurisdiction of the Court of Federal Claims

The United States Court of Federal Claims is a court of limited jurisdiction. Massie v.

United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000). Derived from the Tucker Act, the Court’s

3
Plaintiff’s Complaint presented the Equal Protection claim as derived from the Fifth
Amendment, see ECF No. 1 at 8, but Plaintiff later waived the Equal Protection claim as derived
from the Fourteenth Amendment, see ECF No. 8 at 1. The Court will consider Plaintiff’s Equal
Protection claim, whether derived from either amendment, as waived. See Buckley v. Valeo, 424
U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that
under the Fourteenth Amendment.”). The waiver of Plaintiff’s constitutional and APA claims is
ultimately inconsequential as the Court does not possess jurisdiction to adjudicate such claims.
See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (Due Process Clauses of
Fifth and Fourteenth Amendments and Equal Protection Clause of Fourteenth Amendment not
money-mandating); Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting “the APA
does not authorize an award of money damages at all”).
3
jurisdiction extends over “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). The Tucker Act, however, is “only a

jurisdictional statute; it does not create any substantive right enforceable against the United States

for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976); see also United States v.

Navajo Nation, 556 U.S. 287, 290 (2009) (noting the Tucker Act does not create a substantive

right but acts simply as a “jurisdictional provision[] that operate[s] to waive sovereign immunity

for claims premised on other sources of law (e.g., statutes or contracts)”). Thus, to establish

jurisdiction under the Tucker Act, a plaintiff must identify another substantive source of law that

“can fairly be interpreted as mandating compensation by the Federal Government.” Navajo

Nation, 556 U.S. at 290 (quoting Testan, 424 U.S. at 400). If the Court determines that the alleged

source of law is not money-mandating, then dismissal of the cause of action for lack of jurisdiction

is appropriate. Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005).

B. Standard of Review

Defendant moves to dismiss Plaintiff’s claims pursuant to RCFC 12(b)(1), for lack of

jurisdiction, and RCFC 12(b)(6), for failure to state a claim.

1. RCFC 12(b)(1)

Under RCFC 12(b)(1), “a court must accept as true all undisputed facts asserted in the

plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted

Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed Cir. 2011) (citing Henke v. United

States, 60 F.3d 795, 797 (Fed. Cir. 1995)); see also Pixton v. B&B Plastics, Inc., 291 F.3d 1324,

1326 (Fed. Cir. 2002) (“When a party has moved to dismiss for lack of subject matter jurisdiction,

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[a court] view[s] the alleged facts in the complaint as true, and if the facts reveal any reasonable

basis upon which the non-movant may prevail, dismissal is inappropriate.”). Once determining it

lacks subject matter jurisdiction, however, the Court must dismiss the action. See RCFC 12(b)(1),

12(h)(3).

Courts should “liberally construe[]” a pro se plaintiff’s allegations and apply “less stringent

standards” to a pro se complaint in comparison to “formal pleadings drafted by lawyers.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)). This loosening of the legal strictures on pleadings, nevertheless, does not spare pro se

plaintiffs from the burden of establishing subject matter jurisdiction by a preponderance of the

evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); see

also Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (noting that courts

may not establish different rules for pro se litigants with respect to jurisdictional requirements).

2. RCFC 12(b)(6)

Beyond a plaintiff’s burden of establishing that a court possesses subject matter

jurisdiction, a complaint may still be dismissed for “failure to state a claim upon which relief can

be granted.” RCFC 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter,” thereby providing “facial plausibility” to a plaintiff’s claims. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). “The plausibility standard . . . asks for more than a sheer possibility

that a defendant has acted unlawfully.” Id. And although a “court must accept well-pleaded factual

allegations as true and must draw all reasonable inferences in favor of the claimant,” Call Henry,

Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017), “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice” to shield a complaint

from dismissal, Iqbal, 556 U.S. at 678.

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 C. The Court Lacks Jurisdiction Over Plaintiff’s Privacy Act and FCRA Claims

Plaintiff premises her claims on alleged statutory violations of the Privacy Act, as well as

the FCRA. The United States Court of Appeals for the Federal Circuit has rejected outright the

jurisdiction of the Court of Federal Claims “over claimed violations of the Privacy Act . . . because

th[e] statute[] do[es] not contain [a] money-mandating provision[].” Frazier v. United States, 683

Fed. App’x 938, 940 (Fed. Cir. 2017). Numerous judges of this court have also held that Privacy

Act claims cannot be brought in this court. See, e.g., Braun v. United States, 144 Fed. Cl. 560,

571 (2019) (“Any claims that plaintiff wishes to pursue under the Privacy Act can only be brought

in a District Court, and cannot be brought in this court.”) (collecting cases); Addington v. United

States, 94 Fed. Cl. 779, 784 (2010) (“[T]his court cannot adjudicate plaintiff’s claim that the VA

violated the Privacy Act.”). As those cases note, section 552a(g)(1) of the Privacy Act makes clear

that “the district courts of the United States shall have jurisdiction” to adjudicate a civil action

against an agency for an alleged violation of the Privacy Act. 5 U.S.C. § 552a(g)(1); see also

McKoy v. Spencer, 271 F. Supp. 3d 25, 34 (D.D.C. 2017) (denying as “inappropriate” the

defendant’s request to transfer her Privacy Act claim to the Court of Federal Claims).

Similarly, the Court does not have jurisdiction over Plaintiff’s FCRA claim. In United

States v. Bormes, the United States Supreme Court found that the remedial scheme of the FCRA

displaced this Court’s jurisdiction under the Tucker Act. See 568 U.S. 6, 15 (2012); see also St.

Bernard Par. Gov’t v. United States, 916 F.3d 987, 994 (Fed. Cir. 2019) (“Congress’s creation of

a system of administrative review, followed by judicial review in a district court (or in a court of

appeals) has been held to displace any Tucker Act remedy that may otherwise have been available

in the Court of Federal Claims.”).

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 Accordingly, Plaintiff’s alleged violations of the Privacy Act and the FCRA, even taken as

true, must be dismissed for lack of subject matter jurisdiction under RCFC 12(b)(1).

D. Plaintiff Fails to State a Contract Claim Within the Court’s Jurisdiction or
Upon Which Relief Can Be Granted

Defendant asserts that Plaintiff’s allegations of an implied-in-fact contract fail to state a

cognizable claim. ECF No. 9 at 4. The Court, however, must first examine whether these same

allegations satisfactorily establish the Court’s jurisdiction. See Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their

own initiative . . . .”); see also Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348 (Fed. Cir.

2010) (characterizing subject matter jurisdiction as a “threshold requirement” for a court “to

exercise jurisdiction over a case”). “A non-frivolous allegation that a contract exists between a

plaintiff and the United States is sufficient to invoke the subject matter jurisdiction of the Claims

Court, but dismissal may be proper for lack of subject matter jurisdiction ‘if the claim is wholly

insubstantial and frivolous.’” Ibrahim v. United States, 799 Fed. App’x 865, 867 (Fed. Cir. 2020)

(quoting Lewis v. United States, 70 F.3d 597, 602 (Fed. Cir. 1995)); see also Perry v. United States,

149 Fed. Cl. 1, 14 (2020). Indeed, if an asserted claim and accompanying jurisdictional ground is

a purely pretextual basis for obtaining the Court’s jurisdiction, then the Court ultimately lacks

jurisdiction. See Lewis, 70 F.3d at 603.

In this case, Plaintiff did not raise a contract claim in the Complaint and only first alleged

the existence of an implied-in-fact contract in response to Defendant’s Motion. ECF No. 8 at 1-3.

Moreover, Plaintiff asserts only that an unspecified contract exists and, therefore, jurisdiction of

the Court over the matter is proper. 4 She does not allege any facts “from which [this] Court could

4
Plaintiff argues that Hanlin v. United States, 316 F.3d 1325 (Fed. Cir. 2003) supports the
Court’s jurisdiction over her claim. See ECF No. 8 at 1. Hanlin, however, involved review of an
7
. . . plausibly conclude[] that [she] had a contract with the United States government.” Ibrahim,

799 Fed. App’x at 867. The gravamen of Plaintiff’s Complaint seems to be premised on the facts

surrounding her discharge from military service and the subsequent, related denial of healthcare

benefits by the VA. But the Federal Circuit has held that rights of military personnel, such as

benefits, “depend upon an exercise of legislative grace, not upon principles of contract, property,

or ‘takings’ law.” 5 Schism v. United States, 316 F.3d 1259, 1268 (Fed. Cir. 2002) (citing Kania v.

United States, 650 F.2d 264, 268 (Ct. Cl. 1981) (“[I]t has long been held that the rights of civilian

and military public employees against the government do not turn on contract doctrines but are

matters of legal status even where compacts are made.”)). Plaintiff’s bare, conclusory allegation

of the existence of an implied-in-fact contract does not suffice, warranting dismissal of the claim

under RCFC 12(b)(1).

Even if the contract claim did not constitute a pretextual basis for obtaining the Court’s

jurisdiction, Defendant correctly argues that the allegations fall far short of a cognizable claim.

See Perry, 149 Fed. Cl. at 14 (recognizing that “the Federal Circuit directs that [the court] err on

the side of a merits dismissal pursuant to RCFC 12(b)(6) (citing Lewis, 70 F.3d at 603)).

“[P]ursuant to RCFC 12(b)(6), a plaintiff must plead facts demonstrating all of the elements of a

attorney’s claim that 38 U.S.C. § 5904(d) and 38 C.F.R. § 20.609(h) created an implied-in-fact
contract between him and the VA for payment of his fees. Hanlin, 316 F.3d at 1328. Although
the Court held that it had jurisdiction over the plaintiff’s complaint, it rejected his claim on the
merits. Id. at 1328-30. Here, Plaintiff does not identify any actions or representations by
government agents, nor any statutory or regulatory authority, predicating the alleged existence of
a contract between Plaintiff and the United States.
5
To the extent that Plaintiff’s claims challenge the temporary denial of her healthcare
benefits, this Court lacks jurisdiction for a separate reason. As the Federal Circuit has held, “an
appeal to the Veterans Court is the exclusive judicial remedy for the denial of veterans benefits,
thereby preempting Tucker Act jurisdiction over [such] claims.” See Sindram v. United States,
130 Fed. App’x 456, 458 (Fed. Cir. 2005) (per curiam).
8
contract with the government — namely, ‘a mutual intent to contract, including an offer, an

acceptance, and consideration’ exchanged with a government official having actual authority to

contract.” Id. at 20 (quoting Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir.

1997)). Here, Plaintiff has not pled facts demonstrating even one of the elements of a cognizable

contract claim. See Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012)

(holding dismissal under RCFC 12(b)(6) is required “when the facts asserted do not give rise to a

legal remedy, . . . or do not elevate a claim for relief to the realm of plausibility” (citations

omitted)). Because it is devoid of facial plausibility, Plaintiff’s contract claim must also be

dismissed pursuant to RCFC 12(b)(6).

E. Plaintiff Fails to State a Takings Claim Within the Court’s Jurisdiction or
Upon Which Relief Can Be Granted

Dismissal of Plaintiff’s takings claim is likewise warranted. The Takings Clause of the

Fifth Amendment prohibits private property from being “taken for public use, without just

compensation.” U.S. Const. amend. V. While “jurisdiction under the Tucker Act” is proper for

“a nonfrivolous takings claim,” Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005),

such a claim “cannot be found on the theory that the United States has taken unlawful action,”

Moody v. United States, 931 F.3d 1136, 1142 (Fed. Cir. 2019). See also Rith Energy, Inc. v. United

States, 270 F.3d 1347, 1352 (Fed. Cir. 2001) (finding that complaints stemming from illegitimate

or unlawful government action “are therefore not properly presented in the context of [a] takings

claim”). Moreover, the mere invocation of the word “taking” does not suffice to bestow the Court

with jurisdiction over a matter. See Barksdale v. United States, 582 Fed. App’x 890, 892 (Fed.

Cir. 2014).

Plaintiff’s takings claim, and accompanying jurisdictional ground, is unsupported by

anything other than the mere invocation of the Takings Clause of the Fifth Amendment. This is

9
not sufficient to satisfy Plaintiff’s burden of establishing jurisdiction. See id. Moreover, the

allegations underlying the threadbare recitation that Defendant “took property” from Plaintiff,

even taken as true, only characterize the Defendant’s conduct as unlawful. Whatever the exact

nature of alleged wrong Plaintiff presents here, it is not properly presented in the context of a

takings claim. See Rith, 270 F.3d at 1352; see also Milgroom v. United States, 651 Fed. App’x

1001, 1005 (Fed. Cir. 2016) (“[T]he Claims Court . . . may only exercise . . . jurisdiction [over a

takings claim] when the claimant ‘concede[s] the validity of the government action which is the

basis of the taking claim to bring suit under the Tucker Act.’” (quoting Tabb Lakes, Ltd. v. United

States, 10 F.3d 796, 802-03 (Fed. Cir. 1993))). Accordingly, the Court lacks jurisdiction over

Plaintiff’s takings claim, and it must therefore be dismissed under RCFC 12(b)(1).

Even if the Court were to find that Plaintiff asserts a takings claim subject to the Court’s

jurisdiction, the Complaint does not articulate adequate factual allegations to overcome dismissal

under RCFC 12(b)(6). See Iqbal, 556 U.S. at 678. “To state a taking[s] claim, plaintiffs must

demonstrate that they have a property interest to assert and that the government physically or by

regulation infringed on that interest for public use.” Craig Patty & Craig Thomas Expeditors, LLC

v. United States, 136 Fed. Cl. 211, 214 (2018); see also Acceptance Ins. Co. v. United States, 583

F.3d 849, 854 (Fed. Cir. 2009) (describing a two-part test for evaluating takings claims where a

court first determines “whether the claimant has identified a cognizable Fifth Amendment property

interest” and, if so, then determines “whether that property interest was ‘taken’”). Defendant

correctly argues that Plaintiff fails to state “facts indicating what property interests were allegedly

taken, how they were taken, when they were taken, or who took them.” ECF No. 9 at 3; see also

Vane Mins. (US), LLC v. United States, 116 Fed. Cl. 48, 62 (2014) (“The absence of a compensable

property interest has been recognized as grounds for dismissal under RCFC 12(b)(1) and

10
12(b)(6).”). As a result, the Court is left to surmise that the takings claim is related to the period

in which Plaintiff was deemed ineligible for veterans benefits. As with the purported contract

claim, whether Plaintiff is entitled to veterans benefits arises from statutory authority not

“principles . . . of ‘takings’ law.” Schism, 316 F.3d at 1268. Thus, Plaintiff’s takings claim falls

far short of the facial plausibility standard necessary for the Court to grant relief. Dismissal under

RCFC 12(b)(6) is likewise appropriate. 6

F. Amendment of the Complaint Would Be Futile

In her opposition, Plaintiff offers in the alternative to amend her Complaint if the Court is

inclined to grant Defendant’s Motion. See ECF No. 8 at 3; see also Normandy Apts., Ltd. v. United

States, 100 Fed. Cl. 247, 259 (2011) (deeming “plaintiff’s statements on brief as the equivalent of

a motion to amend the subject complaint”). The decision to grant or deny an opportunity to amend

a pleading lies within the discretion of the trial court. Mitsui Foods, Inc. v. United States, 867 F.2d

1401, 1403 (Fed. Cir. 1989). Although RCFC 15(a)(2) provides that a court should exercise that

discretion “freely” to permit amendment “when justice so requires,” the existence of factors such

as “futility of amendment” may justify the denial of a motion for leave to amend. Id. at 1403-04

(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Here, Plaintiff “has been afforded an opportunity to demonstrate this [C]ourt’s jurisdiction

. . . and fails to explain how amendment would cure any of the jurisdictional defects in [her]

complaint.” Ishler v. United States, 115 Fed. Cl. 530, 541 (2014); see also, e.g., Emerald Coast

Finest Produce Co. v. United States, 76 Fed. Cl. 445, 452 (2007) (denying amendment as futile

where all the relevant claims were outside of the court’s jurisdiction). Nor has she demonstrated

6
Because the Court has determined that all of Plaintiff’s claims must be dismissed
pursuant to RCFC 12(b)(1) or RCFC 12(b)(6) for the reasons discussed above, the Court need not
address Defendant’s argument that Plaintiff’s claims are untimely.
11
that amendment will provide the plausibility that is lacking in her claims for relief, especially

where the events underlying her Complaint do not support those types of claims. See Leider v.

United States, 301 F.3d 1290, 1299 n.10 (Fed. Cir. 2002).

Accordingly, Plaintiff’s implicit request for leave to file an amended complaint is denied.

III. CONCLUSION

Because the Court lacks jurisdiction over Plaintiff’s claims, the Court must dismiss the

Complaint. The limited jurisdiction of the Court does not extend to the statutory violations

asserted by Plaintiff. Moreover, Plaintiff’s contract and takings claims appear wholly pretextual

and insubstantial, such that the Court lacks jurisdiction. Even if the Court were to find it possessed

jurisdiction over these latter claims, Plaintiff’s allegations on their face do not plausibly plead

claims that would entitle Plaintiff to a legal remedy.

For the foregoing reasons, Defendant’s Motion for Summary Dismissal is GRANTED and

Plaintiff’s Complaint is DISMISSED for lack of jurisdiction pursuant to RCFC 12(b)(1) and for

failure to state a claim pursuant to RCFC 12(b)(6). 7 The Clerk is directed to enter judgment

accordingly.

SO ORDERED.

Dated: March 12, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge

7
Plaintiff filed concurrently with her Complaint an Application to Proceed In Forma
Pauperis. ECF No. 2. Plaintiff’s application is GRANTED for the limited purpose of dismissing
the case.
12