United States District Court, W.D. Texas, San Antonio Division
JOHN A. PATTERSON, JOHN BOYT, JANIS FORT, RUBY ALSBURY, RAYMOND BRUNTMYER, JUDY HENSLEY, DOUGLAS KELDER, Plaintiffs,
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, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY AMERICAN BATTLE MONUMENTS COMMISSION, Defendants.
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered the status of the above-captioned
case. After careful consideration, the Court GRANTS
Defendants' Motion to Dismiss. Docket no. 7.
filed their Petition for Writ of Mandamus and Declaratory
Relief on May 25, 2017. Docket no. 1 Plaintiffs are the
designated Primary Next of Kin (“PNOK”) of Army
service members who served in World War II and died while in
service. Id. Plaintiffs' claims relate to
deceased service members whose remains were not identified by
the United States government and were buried as Unknowns.
Id. at 2. Plaintiffs allege that Defendants have
arbitrarily, capriciously, and repeatedly refused to consider
new evidence or conduct newer, more reliable, inexpensive,
and readily available DNA sequencing tests to identify the
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 alleges are the remains of his uncle First
Lieutenant Alexander R. “Sandy” Nininger; (2)
X-3629, which Plaintiff John Boyt alleges are the remains of
his grandfather, Colonel Loren P. Stewart; (3) X-618, which
Plaintiff Janis Fort alleges are the remains of her uncle,
Brigadier General Guy O. Fort; (4) remains from Cabanatuan
Grave 822, which Plaintiff Ruby Alsbury alleges are the
remains of her brother, Private Robert R. Morgan; (5) remains
from Cabanatuan Grave 704, which Plaintiff Raymond Bruntmyer
alleges are the remains of his brother, Private First Class
Lloyd Bruntmyer; (6) remains from Cabanatuan Grave 407, which
Plaintiff Judy Hensley alleges are the remains of her uncle
Private First Class David Hansen; and (7) remains from
Cabanatuan Grave 717, which Plaintiff Douglass Kelder allege
are the remains of his uncle Private Arthur H.
“Bud” Kelder. Id. at 7-11. Plaintiffs
identify where the remains are currently buried or rest.
allege that they and their families have “expended
innumerable hours over the course of decades identifying the
location of the remains of their loved ones.”
Id. at 11. Plaintiffs allege the “location of
these remains is now ascertainable to precise common grave
sites and exact individual grave markers.” Id.
Plaintiffs allege that the Defense POW/MIA Accounting Agency
(“DPAA”) and its predecessor agencies have failed
and continue to fail in their ministerial duties to identify
and recover these remains “despite compelling evidence
provided by Plaintiffs” and “despite there being
an expedient and cost-effective means of doing so such as DNA
testing.” Id. at 12. Plaintiffs further allege
the DPAA and its predecessor agencies fail in their
ministerial duties to “communicate with Plaintiffs in a
readily available manner” and instead have actively
“obstructed the Plaintiffs' attempts to exchange
information with it.” Id.
allege they have been denied substantive due process under
the Fifth Amendment of the United States Constitution due to
Defendants' actions and no adequate legal remedy remains.
Id. Plaintiffs state they continue to suffer harm
because their loved ones' remains have not been returned
more than seventy years after the cessation of hostilities.
seek orders pursuant to 28 U.S.C. §§ 1361 and
2201(a), including that Defendants consider new credible
evidence to identify unidentified remains, Defendants use DNA
analysis and all reasonable forensic technology, Defendants
reliably communicate with Plaintiffs as required by 10 U.S.C.
§ 1501 et seq., certain of Defendants'
policies conflict with 10 U.S.C. § 1501 et
seq., and Defendants be enjoined from further
Constitutional violations and failing to reliably communicate
with Plaintiffs. Id. at 14-16.
September 13, 2017, Defendants filed a Motion to Dismiss for
failure to state a claim and lack of jurisdiction, now
pending before the Court. Docket no. 7.
Court must dismiss a cause for lack of subject-matter
jurisdiction “when the court lacks the statutory or
constitutional power to adjudicate the case.” See
Home Builders Assn. of Mississippi, Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A motion
to dismiss for lack of jurisdiction under 12(b)(1) may be
decided on: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts, plus the
Court's resolution of disputed facts. Freeman v.
United States, 556 F.3d 326, 334 (5th Cir. 2009). Unlike
a 12(b)(6) motion, the district court is empowered to
consider matters outside the complaint and matters of fact
that may be in dispute in a 12(b)(1) motion. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001).
irreducible constitutional minimum of standing contains three
elements.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). These elements are “(1) an
‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent; (2) a causal
connection between the injury and the conduct complained of;
and (3) the likelihood that a favorable decision will redress
the injury.” Croft v. Governor of Texas, 562
F.3d 735, 745 (5th Cir. 2009) (citing Lujan, 504
U.S. at 560-61). Particularized means “that the injury
must affect the plaintiff in a personal and individual
way.” Lujan, 504 U.S. at 560 n. 1. “The
party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S.
at 561. Because they are not mere pleading requirements but
rather an indispensable part of the plaintiff's case,
each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence
required at the successive stages of the litigation.
Id. At the pleading stage, general factual
allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we
“presum[e] that general allegations embrace those
specific facts that are necessary to support the
claim.” Lujan, 504 U.S. at 561; Public
Citizen, Inc. v. Bomer, 274 F.3d 212, 218 (5th Cir.
survive a 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 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). 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-Montez v.
Allied Pilots Assoc., 987 F.2d 278, 284 ...