Patterson v. Def. Pow/Mia Accounting Agency

• Decision Date: 29 July 2019
• Docket Number: Civil Action No. SA-17-CV-467-XR
• Citation: 398 F.Supp.3d 102
• Parties: John A. PATTERSON, et al., Plaintiffs, v. DEFENSE POW/MIA ACCOUNTING AGENCY, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

398 F.Supp.3d 102

John A. PATTERSON, et al., Plaintiffs,

v.DEFENSE POW/MIA ACCOUNTING AGENCY, et al., Defendants.

Civil Action No. SA-17-CV-467-XR

United States District Court, W.D. Texas, San Antonio Division.

Signed July 29, 2019

Benoit M. Letendre, Pro Hac Vice, Cross, Jenks, Mercer & Maffei, LLP, Baraboo, WI, John T. Smithee, Jr., Underwood Law Firm, P.C., Amarillo, TX, Ron A. Sprague, Gendry & Sprague, P.C., San Antonio, TX, for Plaintiffs.

Galen Thorp, U.S. Department of Justice, Washington, DC, Mary F. Kruger, United States Attorneys Office, San Antonio, TX, for Defendants Defense POW/MIA Accounting Agency, Director of DPAA Fern Sumpter Winbush, U.S. Department of Defense, Sec of Defense James Mattis, American Battle Monuments Commission, Robert Dallessandro.

Galen Thorp, U.S. Department of Justice, Washington, DC, for Defendant Kelly McKeague.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered Defendants' Motion to Exclude Expert Opinions (docket no. 55), Defendants' Motion for Summary Judgment (docket no. 61), Plaintiffs' Motion for Partial Summary Judgment (docket no. 65), and the corresponding responses and replies. After careful consideration, the Court GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiffs' Motion for Partial Summary Judgment, and DISMISSES AS MOOT Defendants' Motion to Exclude.

INTRODUCTION

In December 1941, Japan invaded the Philippines, then held by American forces.¹ In the ensuing conflict, Lieutenant Alexander N. Nininger and Colonel Loren P. Stewart were killed in action. Brigadier General Guy O. Fort was captured and then executed. Private Robert R. Morgan, Technician Fourth Class Lloyd Bruntmyer, Private First Class David Hansen, and Private Arthur H. Kelder perished in a Prisoner of War camp. These servicemembers were buried (or, at least, are associated with remains buried) in Cabanatuan. In this lawsuit, their relatives seek return of their remains so that they might be buried pursuant to the relatives' religious and cultural beliefs. Docket no. 1.

These relatives, and designated Primary Next of Kin ("PNOK"), are Plaintiffs John A. Patterson, John Boyt, Janis Fort, Ruby Alsbury, Raymond Bruntmyer, Judy Hensley, and Douglas Kelder's (collectively "Plaintiffs"). In this action they sue Defendants POW/MIA Accounting Agency ("DPAA"), Director of the DPAA Kelly McKeague, the United States Department of Defense ("DOD"), Secretary of Defense James Mattis, the American Battle Monuments Commission ("ABMC"), and acting Secretary of the ABMC Robert Delessandro (collectively, "Defendants"). Each individually named defendant is named only in his or her official capacity. Docket no. 28.

Plaintiffs' central grievance is Defendants' refusal to return the remains of the fallen servicemembers at issue. The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants' retention of these remains impinges on Plaintiffs' religious practices and Plaintiffs' interest in securing proper burial. For this injury, Plaintiffs bring claims under the Administrative Procedures Act ("APA"), Religious Freedom Restoration Act ("RFRA"), and the Constitution. Plaintiff's remaining claims are for violations of (1) procedural and (2) substantive due process, (3) the Fourth Amendment's prohibition on unreasonable seizure, (4) RFRA and (5) the First Amendment's Free Exercise Clause, and (6) the APA.

I. Background

The responsibilities relevant to this lawsuit—the recording, burying, disinterring, testing, and identifying servicemembers who died in World War II—have belonged to several federal entities and agencies in the decades since the conflict. The attention paid and resources devoted to servicemembers buried overseas have fluctuated over time.

a. Statutory History

As of 1946, the agency responsible for tracking graves and recovering and identifying the World War II dead was the Army Graves Registration Service ("AGRS"). In the Philippines, AGRS disinterred remains that might belong to U.S. servicemembers, reburied them at Manila No. 2 Cemetery, and later disinterred and processed them at Nichols Field Mausoleum. After AGRS proposed an identification, the Office of the Quartermaster General ("OQMG") had final identification authority. AGRS terminated on December 31, 1951.

The American Battle Monument Commission ("ABMC") was created in 1923 to create monuments overseas. When AGRS was terminated, ABMC assumed its responsibilities with respect to maintaining permanent military cemeteries overseas. ABMC thus maintains the Manila American Cemetery, which contains 3,700 unknowns. After April 2015, when DoD established a policy for disinterring unidentified remains for identification from permanent military ceremonies, ABMC retains approval authority for the time and manner of disinterment.

The Missing Service Personnel Act of 1995 ("MSPA") ensures that no missing servicemember is declared dead solely because of the passage of time. 140 Cong. Rec. S12217, S12220, 1994 WL 449837 (Aug. 19, 1994); see Pub. L. No. 104-106, Div. A § 569, 110 Stat. 186 (Feb. 10, 1996) (codified at 10 U.S.C. §§ 1501 et seq. ). In 2009, Congress rewrote § 1509 to require a program accounting for the "unaccounted for" dating back to World War II. In 2014, Congress amended § 1501(a) to require that DoD designate a single organization responsible for this accounting. This led to the creation in January 2015 of Defense POW/MIA Accounting Agency ("DPAA").

DPAA accounts for unaccounted DoD personnel and provides information to family members. Before the 2009 amendment to § 1509, DoD was not obligated to account for missing personnel from World War II. Afterward, DoD created the DoD Part Conflict Personnel Accounting Program, which states this task is "of the highest national priority" and seeks at least 200 identifications per year. See DoD Directive 2310.07. In 2018, DPAA received 134 disinterment requests from families, identified 203 previously unaccounted-for military personnel, and hosted seven Family Member Updates, at which family members can get general and individual updates on DPAA's progress.

b. The Disinterment Process

Specific thresholds govern whether a disinterment request is approved. For remains buried individually, like those associated with Stewart, Nininger, and Fort, the DPAA research must show it is more likely than not that DoD can identify the remains. For commingled remains, like those associated with the servicemembers who died as POWs, the DPAA research must show that at least 60 percent of the servicemembers associated with the group can be individually identified. A "Disinterment Criteria Guide" gives 27 factors to consider in assessing these identification likelihoods.

When a family submits a disinterment request, (1) DPAA reviews it and gives a recommendation² to (2) the Deputy Assistant Secretary of Defense for Military Community and Family Policy. This Deputy Assistant Secretary of Defense then gives a recommendation to (3) the Assistant Secretary of Defense for Manpower and Reserve Affairs ("Assistant Secretary"). The Assistant Secretary then approves or denies the request. If approved, DPAA coordinates with AMBC to conduct the disinterment.

During its review, DPAA historians compile a list of candidates for each unknown set of remains. DPAA forensic anthropologists and odontologists then compare scientific and medical records to the list and exclude candidates. This leaves a "short list," which DPAA uses to make its disinterment recommendation and the Service Casualty Offices use to request family DNA reference samples. DPAA only recommends disinterment when it has a reliable short list and enough DNA reference samples for the identification process.

c. The Identification Process

After disinterment, the remains are transported to the DPAA Laboratory in Hawaii, where forensic anthropologists and odontologists examine the remains. Bone and tooth samples are sent to the Armed Forces DNA Identification Laboratory ("AFDIL") in Delaware, which tests the DNA samples and reports results to DPAA. AFDIL maintains a collection of family reference samples to compare DNA results to unidentified remains.

The laboratory's Science Director, a forensic pathologist, then weighs all information under a clear and convincing standard. The Science Director has identification authority, but a servicemember is only identified if the postmortem historical and scientific evidence agrees with the known antemortem facts of the case, all reasonable alternatives are eliminated, and there are no irreconcilable discrepancies between the antemortem facts and the postmortem evidence.

The Army Casualty and Mortuary Affairs Operation Division, and specifically the Past Conflicts Repatriations Branch ("PCRB"), is responsible for contact with servicemembers' families. The PCRB keeps contact with families, keeps personnel files for unaccounted-for servicemembers, does genealogy research to identify PNOKs, and manages mortuary services for identified servicemembers.

Only when remains are identified (or deemed unidentifiable) by the Armed Forces Medical Examiner ("AFME") can remains be interred. Burial or cremation is directed by the person authorized to direct disposition ("PADD"). A PADD cannot be named until the remains are officially identified.

d. Servicemembers At Issue

At issue here are seven separate remains, three of which are specifically designated by the United States government and four of which are identified by the communal grave in which they were originally buried: (1) X–1130, which Plaintiff Patterson of Rhode Island alleges are the remains of his uncle, First Lieutenant Nininger; (2) X–3629, which Plaintiff Boyt of California alleges are the remains of his grandfather, Colonel Stewart; (3) X–618, which Plaintiff Fort of California alleges are the remains of her uncle, General Fort; (4) remains from Cabanatuan Grave...