United States District Court, W.D. Texas, San Antonio Division
JOHN A. PATTERSON, et al., Plaintiffs,
DEFENSE POW/MIA ACCOUNTING AGENCY, et al., Defendants.
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
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.
December 1941, Japan invaded the Philippines, then held by
American forces. 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
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.
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.
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.
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.
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,
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.
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”).
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.
The Disinterment Process
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.
family submits a disinterment request, (1) DPAA reviews it
and gives a recommendation 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.
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.
The Identification Process
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.
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.
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.
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
Servicemembers At Issue
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 822, which Plaintiff
Alsbury of Texas alleges are the remains of her brother,
Private Morgan; (5) remains from Cabanatuan Grave 704, which
Plaintiff Bruntmyer of Texas alleges are the remains of his
brother, Technician Bruntmyer; (6) remains from Cabanatuan
Grave 407, which Plaintiff Hensley of New Mexico alleges are
the remains of her uncle, Private First Class Hansen; and (7)
remains from Cabanatuan Grave 717, which Plaintiff Kelder of
Wisconsin alleges are the remains of his uncle, Private
Kelder. In this order, the Court will refer to these
servicemembers by their last names. Where the Court intends
to refer specifically to a Plaintiff PNOK who shares a last
name with their relative servicemember, the Court will
Servicemembers Associated with Common Graves
of War held in Camp Cabanatuan, many of whom survived the
infamous Bataan Death March, suffered from rampant disease
caused by poor conditions and a lack of food, water, and
medical supplies. The practice of POWs in Cabanatuan was to
bury their fellow soldiers in common graves. These graves
contained those who died in the same 24-hour period. Since
then, these remains have moved several times. They were
disinterred in 1945 by AGRS and those not immediately
identifiable were reinterred at U.S. Armed Forces Manila #2
Cemetery. Then, in fall 1947, these remains were again
disinterred and moved to an AGRS Mausoleum. Those remains
still unidentified were deemed unidentifiable, and in 1952
were buried at Manila American Cemetery.
2004, DPAA began a project to account for these unidentified
servicemembers. To do so, DPAA disinters all remains
associated with one common grave (to date, DPAA has
disinterred 25 such graves), conducts historical research on
this grave, and submits a recommendation. Defendants states
this project is complicated by, among other difficulties,
deterioration from repeated handling; the incomplete and
sometimes inaccurate primary burial record, Captain Robert
Conn's “Death Report, Cabanatuan”; and early
false identifications by dog tags and personal items
associated with some remains.
Kelder, held captive after the American forces surrendered in
the spring of 1942 until his death, was buried in Cabanatuan
Common Grave 717. Grave 717 is the likely original location
of fourteen individuals' remains, including Kelder's.
Ten unknowns associated with this grave were disinterred from
Manila American Cemetery in 2014. In 2015, after DNA testing,
DPAA concluded that bones from four of the ten disinterred
graves were Kelder's, and Plaintiff Kelder was provided
of the other remains in Grave 717 continues. Plaintiffs take
issue with the time this process has taken. Defendants
attribute the delay to many factors, including AFDIL's
backlog, DNA results that indicate remains from at least 18
people are commingled with these remains, and bone samples
that have yielded no useable DNA.
Morgan died on January 1, 1943, after falling ill in Camp
Cabanatuan. He is believed to have been buried in Grave 822,
the likely original location of five servicemembers'
remains. DPAA disinterred the four unknowns associated with
Grave 822 in November 2018, began processing the remains, and
submitted initial samples to AFDIL for testing.
Bruntmyer died on November 1, 1942, after falling ill at Camp
Cabanatuan. He is associated with Grave 704, the likely
original location of ten servicemembers' remains. Grave
704 was disinterred in November 2018.
First Class Hansen died on June 28, 1942, after filling ill
at Camp Cabanatuan. He is associated with Grave 407, the
likely original location of twenty-six servicemembers'
remains, including nine unknowns. Defendants state that they
received viable reference samples from Hansen's relatives
only in December 2018, so DPAA deferred its disinterment
recommendation for this grave. DPAA recommended disinterment
on June 4, 2019, and on June 28 the Assistant Secretary of
Defense for Manpower and Reserve Affairs issued a final
decision approving disinterment. See docket no. 73
(Defendants' Notice of Factual Developments, filed July
issue the same caveat for identification of Morgan,
Bruntmyer, and Hansen. While Camp Cabanatuan's records
associate these servicemembers with the above graves, these
records contain some inaccuracies. Defendants argue it is
possible that these servicemembers were misidentified and
remaining three servicemembers at issue are not associated
with common graves but individual sets of remains.
Lieutenant Nininger, posthumously awarded the Medal of Honor,
died in combat near Abucay on January 12, 1942. Plaintiffs
argue the remains designated X-1130 Manilla #2 are
Nininger's. Some historical evidence associates X-1130
with Nininger. For example, in February 1944, Colonel George
Clark wrote to Nininger's father. He wrote that Nininger
was buried “in grave No. 9 behind the South wall of the
Abucay church.” In late 1945 and early 1946, X-1130 and
other remains were disinterred from the Abucay village
cemetery. Master Sergeant Abie Abraham, sent in 1945 to
Abucay, interviewed a Filipino man who claimed to have dug
graves for five Americans. X-1130 was then recorded as
Nininger, although the parties dispute when or whether
Abraham made this association.
remains were taken to the Mauseoleum at Nichols Field for
identification. A December 1948 AGRS memorandum recommended
that X-1130 be identified as Nininger. These remains had
already been associated with Nininger for several years. AGRS
then repeatedly sought to identify X-1130 as Nininger, but
the Office of the Quartermaster General ultimately denied the
proposed identification. It did so because Nininger's
stature was reported as 5 feet, 11 inches, while X-1130's
stature was twice estimated by AGRS as 5 feet, 1 inch and 5
feet, 2.125 inches. Further, several witnesses, including some
who were at Nininger's funeral, stated Nininger was