Patterson et al v. POW/MIA Accounting Agency, et al

Filing 14

ORDER GRANTING re 7 MOTION to Dismiss filed by James Mattis, U.S. Department of Defense, Defense POW/MIA Accounting Agency, Robert Dallessandro, Fern Sumpter Winbush, American Battle Monuments Commission, Accordingly, all of Pla intiffs claims against Defendants are DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO AMEND. It is further ORDERED that Plaintiffs shall have until December 4, 2017, to file an amended complaint. If Plaintiffs file an amended complaint, the parties shall file a Joint Proposed Scheduling Order. Signed by Judge Xavier Rodriguez. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
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.

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Civil Action No. SA-17-CV-467-XR

ORDER
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,

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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) X618, 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
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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

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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
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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 (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.
ANALYSIS
I.

Mandamus Act Claims
Plaintiffs allege that the DPAA is required to locate, recover, and identify missing

persons from past conflicts, or their remains, after hostilities have ceased, and that the DPAA
must establish a means of communication between the DPAA and family members of missing
persons and concerned citizens under 10 U.S.C. § 1501 et seq. Docket no. 1 at 11. Plaintiffs
allege that the DPAA and its predecessor agencies have failed and continue to fail in their
ministerial duties related to these alleged requirements and request the Court to order Defendants
to take certain action with respect to these alleged ministerial duties pursuant to 28 U.S.C.
§ 1361. Id. at 12, 14–15. Defendants argue that Plaintiffs fail to establish that Defendants’
alleged duties are nondiscretionary, a clear right to the relief sought, and that available remedies
are inadequate. Docket no. 7 at 21, 26, 30.
Under the Mandamus Act, “district courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is available
only if a plaintiff establishes (1) a clear right to relief, (2) that the defendant has a clear duty to
act, and (3) no other adequate remedy exists. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635
F.3d 757, 768 (5th Cir. 2011). Mandamus is an “extraordinary remedy” and it is used “only to
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compel the performance of a clear nondiscretionary duty.” Pittston Coal Group v. Sebben, 488
U.S. 105, 121 (1988).
To show that Defendants have a clear duty to act, Plaintiffs “must demonstrate that a
government officer owes [Plaintiffs] a legal duty that is a specific, ministerial act, devoid of the
exercise of judgment or discretion.” Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv.,
112 F.3d 1283, 1288 (5th Cir. 1997). “The legal duty must be set out in the Constitution or by
statute and its performance must be positively commanded and so plainly prescribed as to be free
from doubt.” Id. (citation omitted).
As stated above, Plaintiffs allege that the DPAA is required to carry out ministerial duties
related to identifying missing persons or their remains and communication between the DPAA
and family members of missing persons. Under 10 U.S.C. § 1501, the DPAA’s responsibilities
include five categories of duties, such as the “[r]esponsibility for accounting for missing persons
from past conflicts, including locating, recovering, and identifying missing persons from past
conflicts or their remains after hostilities have ceased,” the “[d]issemination of appropriate
information on the status of missing persons from past conflicts to authorized family members,”
and the “[e]stablishment of a means for communication between officials of the designated
Defense Agency and family members of missing persons from past conflicts, veterans service
organizations, concerned citizens, and the public on the Department’s efforts to account for
missing persons from past conflicts.” 10 U.S.C. § 1501(a)(2). Section 1501 clearly states,
however, that these responsibilities are “[s]ubject to the authority, direction, and control of the
Secretary of Defense.” Id.
Plaintiffs fail to demonstrate that the DPAA’s responsibilities are ministerial duties to
support its mandamus claims. Although § 1501 identifies certain responsibilities of the DPAA,
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Plaintiffs do not show that these responsibilities are “devoid of the exercise of judgment or
discretion.” First, § 1501 states that these responsibilities are subject to the “authority, direction,
and control of the Secretary of Defense,” indicating that the responsibilities are carried out at the
discretion of the Secretary of Defense. 10 U.S.C. § 1501(a)(2).
Also, the statutory language indicates the individual responsibilities involve an exercise
of discretion. When handling “new information” related to persons who are unaccounted for, the
DPAA must determine if any new information is “credible,” § 1509(e)(3), and if that information
is passed on to the Secretary of Defense, the Secretary will determine, with the advice of the
missing person’s counsel, “whether the information is significant enough to require a board
review.” § 1505(c)(3). Cf. Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (finding that
although Title VII states the EEOC “shall make an investigation” of a charge filed, “the nature
and extent of an EEOC investigation into a discrimination claim is a matter within the discretion
of that agency”). Further, the DPAA must establish a means for communication between its
officials and family members, which includes a “readily available means for communication”
between the DPAA and interested parties. 10 U.S.C. § 1501(a)(2)(E). The statute, however, does
not compel “specific, ministerial acts” that are “devoid of the exercise of judgment or discretion”
as to how this means for communication is initially established, much less how communication
is carried out after a system is established. Because the DPAA may exercise discretion with
respect to its individual responsibilities, and the DPAA’s actions are themselves subject to the
authority, direction, and control of the Secretary of Defense, Plaintiff fails to show that the
DPAA has a clear duty to act as required by the Mandamus Act.
Plaintiffs further allege that Defendants have used the procedures for seeking relief to
frustrate the “underlying purpose of identifying and recover remains such that Plaintiffs have
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been denied substantive due process” under the Fifth Amendment. Docket no. 1 at 12. Plaintiffs
do not clearly allege of which specific Constitutional right they have been deprived. Further, for
the Constitution to support a Writ of Mandamus, the Court must “infer from it a clear, ministerial
duty.” Duchow v. United States, No. 95-2121, 1995 WL 425037, at *2 (E.D. La. July 19, 1995),
aff’d, 114 F.3d 1181 (5th Cir. 1997). As stated above, Plaintiffs fail to identify any clear
ministerial duties, and the Court finds “no such clearly prescribed duty.” Id. Plaintiffs fail to state
a valid claim that they have been denied substantive due process under the Fifth Amendment.
Plaintiffs only state claims related to responsibilities of the DPAA. Docket no. 1 at 11–
12. Plaintiffs do not allege any other responsibilities of the DOD or the American Battle
Monuments Commission (“ABMC”). To the extent that Plaintiffs attempt to raise new claims in
their Response to Defendants’ Motion to Dismiss, such statements do not state valid claims
against Defendants. See Davis v. DRRF Tr. 2015-1, No. 5:15-CV-880 RP, 2016 WL 8257126, at
*3 (W.D. Tex. Jan. 6, 2016) (declining to consider plaintiff’s claim not raised in original petition,
but raised for first time in response to motion to dismiss); see also Hearn v. Deutsche Bank Nat.
Trust Co., No. 3:13-CV-2417-B, 2014 WL 4055473, at *4 (N.D. Tex. Aug. 15, 2014) (“[W]hen
considering a motion to dismiss, the Court generally only relies on the allegations made in the
pleadings, and does not base its decision on allegations raised for the first time in . . . the
plaintiff's response.”). Accordingly, Plaintiffs fail to show that the DOD or ABMC have a clear
duty to act as required by the Mandamus Act.
Because the Court finds that Plaintiffs have failed to show that Defendants have a clear
duty to act, the Court need not address whether Plaintiffs sufficiently plead that they are entitled
to “a clear right to relief” or that “no other adequate remedy exists.” Accordingly, Plaintiffs fail
to state a valid claim under the Mandamus Act.
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II.

Declaratory Judgment
Plaintiffs claim they are entitled to a declaration of their rights under 10 U.S.C. § 1501 et
seq. pursuant to the Declaratory Judgment Act. Docket no. 1 at 13. Plaintiffs request a Court
order seeking injunctive relief and certain declarations with respect to Defendants’ alleged
responsibilities, actions, and violations. Id. at 15–16. Defendants argue these claims should be
dismissed for lack of jurisdiction or failure to state a claim. Docket no. 7 at 32–35.
As an initial matter, regarding Plaintiffs’ requests for injunctive relief, the Fifth Circuit

has held that the “plain language of [the Mandamus Act] is clear that it only grants jurisdiction to
consider a mandamus action; it does not grant jurisdiction to consider actions asking for other
types of relief—such as injunctive relief.” Randall D. Wolcott, 635 F.3d at 766; see 28 U.S.C.
§ 1361. Nor can Plaintiffs point to the Declaratory Judgment Act, 28 U.S.C. § 2201, as a basis
for jurisdiction for requested injunctive relief because the Declaratory Judgment Act does not
provide an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 671–72 (1950); Mustafa v. Pasquerell, No. 05-CA-658-XR, 2006 WL
488399, at *2 (W.D. Tex. Jan. 10, 2006). Accordingly, the Court lacks jurisdiction to grant
Plaintiff’s requested injunctive relief.
Further, to get relief under the Declaratory Judgment Act, Plaintiffs must bring a valid
claim for an independent cause of action that provides the Court with subject-matter jurisdiction.
See Skelly Oil Co., 339 U.S. at 671–72. As discussed above, Plaintiffs fail to state a valid claim
under the Mandamus Act. Accordingly, Plaintiffs fail to demonstrate that the Court has
jurisdiction to grant the requests for relief related to 10 U.S.C. § 1501 et seq.
Plaintiffs request a declaration that Defendants wrongfully withheld documents,
information, and communication from Plaintiffs in violation of the Freedom of Information Act
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(“FOIA”). Docket no. 1 at 15. Plaintiffs, however, fail to state a claim under the FOIA; therefore,
the Court cannot grant Plaintiff’s requested relief.
Plaintiffs also request a declaration that Defendants wrongfully deprived service
members’ families of “constitutionally protected rights to due process and possession of the
remains of their family members.” Id. at 15. As discussed above, however, Plaintiffs fail to state
which constitutional right of which they have been deprived, and they allege no ministerial duty
with respect to the Mandamus Act.
Finally, Plaintiffs request an order related to the reimbursement of expenses “incident to
the recovery, care, and disposition of the remains of any missing U.S. Military personnel as
provided for by 10 U.S.C. § 1482.” Docket no. 1 at 16. Plaintiffs, however, fail to demonstrate
how the Court has jurisdiction over such claims because they do not indicate that Congress
intended § 1482 to create a right and a remedy that is privately enforceable. Alexander v.
Sandoval, 532 U.S. 275, 286–87 (2001) (holding that “private rights of action to enforce federal
law must be created by Congress” and absent an “intent to create not just a private right but also
a private remedy,” “a cause of action does not exist and courts may not create one”).
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED. Docket no. 7.
Accordingly, all of Plaintiffs’ claims against Defendants are DISMISSED WITHOUT
PREJUDICE, WITH LEAVE TO AMEND. It is further ORDERED that Plaintiffs shall have
until December 4, 2017, to file an amended complaint. If Plaintiffs file an amended complaint,
the parties shall file a Joint Proposed Scheduling Order.

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It is so ORDERED.
SIGNED this 20th day of November, 2017.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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