Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Patterson v. Pow/Mia Accounting Agency

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

November 20, 2017

JOHN A. PATTERSON, JOHN BOYT, JANIS FORT, RUBY ALSBURY, RAYMOND BRUNTMYER, JUDY HENSLEY, DOUGLAS KELDER, Plaintiffs,
v.
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.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date, the Court considered the status of the above-captioned case. After careful consideration, the Court GRANTS Defendants' Motion to Dismiss. Docket no. 7.

         BACKGROUND

         Plaintiffs 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 remains. Id.

         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 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. Id.

         Plaintiffs 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.

         Plaintiffs 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. Id.

         Plaintiffs 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.

         On 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.

         LEGAL STANDARD

         The 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).

         “[T]he 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. 2001).

         “To 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.