Patterson v. Def. POW/MIA Accounting Agency

• Citation: 343 F.Supp.3d 637
• Decision Date: 23 October 2018
• Docket Number: Civil Action No. SA-17-CV-467-XR
• 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

343 F.Supp.3d 637

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 October 23, 2018

Benoit M. Letendre, Pro Hac Vice, Cross, Jenks, Mercer & Maffei, LLP, Baraboo, WI, John T. Smithee, Jr., Law Office of John True Smithee, Jr., Nashville, TN, 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.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered Plaintiffs John A. Patterson, John Boyt, Janis Fort, Ruby Alsbury, Raymond Bruntmyer, Judy Hensley, and Douglas Kelder's (collectively "Plaintiffs") Motion to Compel (docket no. 28) and 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's¹ (collectively "Defendants") Motion for Judgment on the Pleadings (docket no. 31). After careful consideration, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion for Judgment on the Pleadings and DENIES Plaintiffs' Motion to Compel.

BACKGROUND

Plaintiffs filed their Original Petition on May 25, 2017. Docket no. 1. In a prior order, this Court granted Defendants' Motion to Dismiss and gave Plaintiffs leave to amend their complaint. Docket no. 14. Plaintiffs filed an Amended Complaint on January 4, 2018. Docket no. 19. Plaintiffs are the designated Primary Next of Kin ("PNOK") of Army service members who died in the Philippines serving their country in World War II. Id. Plaintiffs bring claims for substantive and procedural due process violations, a Bivens violation, a violation of the Administrative Procedures Act ("APA"), and violations of the Free Exercise Clause and Religious Freedom Restoration Act ("RFRA"). Id. The Plaintiffs further seek mandamus relief for recovery of the remains at issue, mandamus relief for identification of the remains and further efforts, a declaratory judgment finding Plaintiffs have a right to possess the remains, a declaratory judgment to return the remains to Plaintiffs, and a declaratory judgment finding that Defendants have violated Plaintiffs' First, Fourth, and Fifth Amendment rights. Id.

Plaintiffs' claims relate to their deceased family members whose remains went unidentified after World War II and who were buried as Unknowns in the Manila American Cemetery. Id. at 7–13. Plaintiffs seek the return of their family members' remains so that the families can secure what they believe is a proper burial. Id. at 2. Plaintiffs allege that, due to successful prior litigation to obtain government records pursuant to the Freedom of Information Act, "information has been brought to light that allows Plaintiffs to identify where these seven service members are currently buried." Id. at 8; see also Eakin v. U.S. Department of Defense, et al. , No. SA-10-CV-0748-FB. Plaintiffs allege that despite this new information, Defendants have refused to recover, return, or positively identify these remains. Id. at 8.

Plaintiffs identify 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 John A. Patterson of Rhode Island alleges are the remains of his uncle First Lieutenant Alexander R. "Sandy" Nininger; (2) X–3629, which Plaintiff John Boyt of California alleges are the remains of his grandfather, Colonel Loren P. Stewart; (3) X–618, which Plaintiff Janis Fort of California alleges are the remains of her uncle, Brigadier General Guy O. Fort; (4) remains from Cabanatuan Grave 822, which Plaintiff Ruby Alsbury of Texas alleges are the remains of her brother, Private Robert R. Morgan; (5) remains from Cabanatuan Grave 704, which Plaintiff Raymond Bruntmyer of Texas alleges are the remains of his brother, Private First Class Lloyd Bruntmyer; (6) remains from Cabanatuan Grave 407, which Plaintiff Judy Hensley of New Mexico alleges are the remains of her uncle Private First Class David Hansen; and (7) remains from Cabanatuan Grave 717, which Plaintiff Douglass Kelder of Wisconsin alleges are the remains of his uncle Private Arthur H. "Bud" Kelder. Id. at 7–13. Plaintiffs identify where the remains are currently buried or rest. Id. Defendants, in their answer, disagree that the remains have been positively located or identified according to DPAA standards. Docket no. 25 at 7–16.

Defendants aver that the DPAA is currently processing requests to disinter grave X-3629 (alleged by Plaintiffs to contain the remains of Colonel Stewart) and grave Leyte # 1 X-618 (alleged by Plaintiffs to contain the remains of Brigadier General Fort). Id. at 10, 11. Additionally, Plaintiffs allege that the DPAA has recommended the disinterment of Cabanatuan Grave 822 (alleged by Plaintiffs to contain the remains of Private Morgan) and Cabanatuan Grave 704 (alleged by Plaintiffs to contain the remains of Private First Class Bruntmyer), but that the recommendations have not been finalized and are currently under review by the Assistant Secretary of Defense for Manpower and Reserve Affairs. Id. at 12; Docket no. 31 at 18. The DPAA affirmatively denied a request to disinter grave X-1130, alleged by Plaintiffs to contain the remains of First Lieutenant Nininger. Docket 25-3 at 38.

Plaintiffs filed a Motion to Compel Production of Remains or, in the Alternative, for Physical Examination on April 13, 2018. Docket no. 28. They seek to disinter certain graves in the Manila American Cemetery for DNA testing as part of the discovery process for this action. Id. at 2–3. Defendants refused Plaintiffs' initial request for production and now oppose the Motion to Compel on the grounds that Plaintiffs' Motion fails to overcome a presumption against disinterment, exceeds Rule 26(b)(1)'s limitations on discovery, and fails to meet Rule 35's requirements of real controversy and good cause. Docket no. 34. Defendants filed a Motion for Judgment on the Pleadings on April 20, 2018, arguing that each of Plaintiffs' claims fail as a matter of law. Docket no. 31.

ANALYSIS

I. Motion for Judgment on the Pleadings

A. Legal Standard

"The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12(b)(6)." Chauvin v. State Farm Fire & Cas. Co. , 495 F.3d 232, 237 (5th Cir. 2007) (citing Johnson v. Johnson , 385 F.3d 503, 529 (5th Cir. 2004) ); Guidry v. Am. Pub. Life Ins. Co. , 512 F.3d 177, 180 (5th Cir. 2007) (adopting the same standard after Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "To survive a [Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim for relief must contain (1) "a short and plain statement of the grounds for the court's jurisdiction"; (2) "a short and plain statement of the claim showing that the pleader is entitled to the relief"; and (3) "a demand for the relief sought." FED. R. CIV. P. 8(a). In considering a motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true, and the facts are to be construed favorably to the plaintiff. Fernandez-Montes v. Allied Pilots Assoc. , 987 F.2d 278, 284 (5th Cir. 1993). To survive a 12(b)(6) motion, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. Judgment on the pleadings is only appropriate when "the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312 (5th Cir. 2002).

B. Due Process Violations

"No person shall be ... deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. The Due Process Clause embodies two distinct concepts: procedural due process and substantive due process. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Procedural due process requires the government to follow appropriate procedures before it deprives a person of an interest in life, liberty, or property; substantive due process ensures that, regardless of the fairness of the procedures used, the government does not use its power for oppressive purposes. Daniels v. Williams , 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In other words, "[p]rocedural due process guarantees that a state proceeding which results in a deprivation of property is fair, while substantive due process ensures that such state action is not arbitrary and capricious." Licari v. Ferruzzi , 22 F.3d 344, 347 (1st Cir. 1994) (citing Amsden v. Moran , 904 F.2d 748, 753–54 (1st Cir. 1990), cert. denied , 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991) ).

When Due Process is invoked in a novel context, the court first determines the exact nature of the private interest that is threatened. Lehr v. Robertson , 463 U.S. 248, 256, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). To prevail on a substantive due process claim, a plaintiff must establish that he or she holds a constitutionally protected property right to which Due Process protections apply. Simi Inv. Co. v. Harris...