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Patterson v. Defense POW/MIA Accounting Agency

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

July 29, 2019

JOHN A. PATTERSON, et al., Plaintiffs,



         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.


         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 recommendation[2] 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 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 specify this.

         i. Servicemembers Associated with Common Graves

         Prisoners 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.

         In 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.

         1. Kelder

         Private 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 those bones.

         Testing 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.

         2. Morgan

         Private 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.

         3. Bruntmyer

         Technician 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.

         4. Hansen

         Private 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 17).

         Defendants 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 buried elsewhere.

         e. Individual Cases

         The remaining three servicemembers at issue are not associated with common graves but individual sets of remains.

         i. Nininger

         First 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.

         The 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.[3] Further, several witnesses, including some who were at Nininger's funeral, stated Nininger was ...

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