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

Filing 51

ORDER DENYING 28 Motion to Compel; GRANTING IN PART AND DENYING IN PART 31 Motion for Judgment on the Pleadings Signed by Judge Xavier Rodriguez. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOHN A. PATTERSON, et al.,
Plaintiffs,
v.
DEFENSE POW/MIA ACCOUNTING
AGENCY, et al.,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

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

ORDER
On this date, the Court considered Plaintiffs John A. Patterson, John Boyt, Janis Fort,
Ruby Alsbury, Raymond Bruntmyer, Judy Hensley, and Douglas Kelder’s (collectively
“Plaintiffs”) Motion to Compel (docket no. 28) and 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’s 1 (collectively
“Defendants”) Motion for Judgment on the Pleadings (docket no. 31). After careful
consideration, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for
Judgment on the Pleadings and DENIES Plaintiffs’ Motion to Compel.
BACKGROUND
Plaintiffs filed their Original Petition on May 25, 2017. Docket no. 1. In a prior order,
this Court granted Defendants’ Motion to Dismiss and gave Plaintiffs leave to amend their
complaint. Docket no. 14. Plaintiffs filed an Amended Complaint on January 4, 2018. Docket no.
1

Each individually named defendant is being sued only in his or her official capacity. Docket no. 28.
1

19. Plaintiffs are the designated Primary Next of Kin (“PNOK”) of Army service members who
died in the Philippines serving their country in World War II. Id. Plaintiffs bring claims for
substantive and procedural due process violations, a Bivens violation, a violation of the
Administrative Procedures Act (“APA”), and violations of the Free Exercise Clause and
Religious Freedom Restoration Act (“RFRA”). Id. The Plaintiffs further seek mandamus relief
for recovery of the remains at issue, mandamus relief for identification of the remains and further
efforts, a declaratory judgment finding Plaintiffs have a right to possess the remains, a
declaratory judgment to return the remains to Plaintiffs, and a declaratory judgment finding that
Defendants have violated Plaintiffs’ First, Fourth, and Fifth Amendment rights. Id.
Plaintiffs’ claims relate to their deceased family members whose remains went
unidentified after World War II and who were buried as Unknowns in the Manila American
Cemetery. Id. at 7–13. Plaintiffs seek the return of their family members’ remains so that the
families can secure what they believe is a proper burial. Id. at 2. Plaintiffs allege that, due to
successful prior litigation to obtain government records pursuant to the Freedom of Information
Act, “information has been brought to light that allows Plaintiffs to identify where these seven
service members are currently buried.” Id. at 8; see also Eakin v. U.S. Department of Defense, et
al., No. SA-10-CV-0748-FB. Plaintiffs allege that despite this new information, Defendants have
refused to recover, return, or positively identify these remains. Id. at 8.
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 of Rhode Island
alleges are the remains of his uncle First Lieutenant Alexander R. “Sandy” Nininger; (2) X–
3629, which Plaintiff John Boyt of California alleges are the remains of his grandfather, Colonel

2

Loren P. Stewart; (3) X–618, which Plaintiff Janis Fort of California alleges are the remains of
her uncle, Brigadier General Guy O. Fort; (4) remains from Cabanatuan Grave 822, which
Plaintiff Ruby Alsbury of Texas alleges are the remains of her brother, Private Robert R.
Morgan; (5) remains from Cabanatuan Grave 704, which Plaintiff Raymond Bruntmyer of Texas
alleges are the remains of his brother, Private First Class Lloyd Bruntmyer; (6) remains from
Cabanatuan Grave 407, which Plaintiff Judy Hensley of New Mexico alleges are the remains of
her uncle Private First Class David Hansen; and (7) remains from Cabanatuan Grave 717, which
Plaintiff Douglass Kelder of Wisconsin alleges are the remains of his uncle Private Arthur H.
“Bud” Kelder. Id. at 7–13. Plaintiffs identify where the remains are currently buried or rest. Id.
Defendants, in their answer, disagree that the remains have been positively located or identified
according to DPAA standards. Docket no. 25 at 7–16.
Defendants aver that the DPAA is currently processing requests to disinter grave X-3629
(alleged by Plaintiffs to contain the remains of Colonel Stewart) and grave Leyte #1 X-618
(alleged by Plaintiffs to contain the remains of Brigadier General Fort). Id. at 10, 11.
Additionally, Plaintiffs allege that the DPAA has recommended the disinterment of Cabanatuan
Grave 822 (alleged by Plaintiffs to contain the remains of Private Morgan) and Cabanatuan
Grave 704 (alleged by Plaintiffs to contain the remains of Private First Class Bruntmyer), but
that the recommendations have not been finalized and are currently under review by the
Assistant Secretary of Defense for Manpower and Reserve Affairs. Id. at 12; Docket no. 31 at 18.
The DPAA affirmatively denied a request to disinter grave X-1130, alleged by Plaintiffs to
contain the remains of First Lieutenant Nininger. Docket 25-3 at 38.
Plaintiffs filed a Motion to Compel Production of Remains or, in the Alternative, for
Physical Examination on April 13, 2018. Docket no. 28. They seek to disinter certain graves in

3

the Manila American Cemetery for DNA testing as part of the discovery process for this action.
Id. at 2–3. Defendants refused Plaintiffs’ initial request for production and now oppose the
Motion to Compel on the grounds that Plaintiffs’ Motion fails to overcome a presumption against
disinterment, exceeds Rule 26(b)(1)’s limitations on discovery, and fails to meet Rule 35’s
requirements of real controversy and good cause. Docket no. 34. Defendants filed a Motion for
Judgment on the Pleadings on April 20, 2018, arguing that each of Plaintiffs’ claims fail as a
matter of law. Docket no. 31.
ANALYSIS
I.

Motion for Judgment on the Pleadings
A. Legal Standard
“The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure

to state a claim under Rule 12(b)(6).” Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 237
(5th Cir. 2007) (citing Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004)); Guidry v. Am.
Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007) (adopting the same standard after Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To survive a [Rule 12(b)(6)] 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 Twombly, 550 U.S.
at 570). 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. FernandezMontez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). To survive a 12(b)(6) motion,

4

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 (2007). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Id. Judgment on the
pleadings is only appropriate when “the material facts are not in dispute and a judgment on the
merits can be rendered by looking to the substance of the pleadings and any judicially noticed
facts.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.
2009).
B. Due Process Violations
“No person shall be . . . deprived of life, liberty, or property, without due process of law.”
U.S. Const. amend. V. The Due Process Clause embodies two distinct concepts: procedural due
process and substantive due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541
(1985). Procedural due process requires the government to follow appropriate procedures before
it deprives a person of an interest in life, liberty, or property; substantive due process ensures
that, regardless of the fairness of the procedures used, the government does not use its power for
oppressive purposes. Daniels v. Williams, 474 U.S. 327, 331 (1986). In other words,
“[p]rocedural due process guarantees that a state proceeding which results in a deprivation of
property is fair, while substantive due process ensures that such state action is not arbitrary and
capricious.” Licari v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994) (citing Amsden v. Moran, 904
F.2d 748, 753–54 (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991)).
When Due Process is invoked in a novel context, the court first determines the exact
nature of the private interest that is threatened. Lehr v. Robertson, 463 U.S. 248, 256 (1983). To
prevail on a substantive due process claim, a plaintiff must establish that he or she holds a
constitutionally protected property right to which Due Process protections apply. Simi Inv. Co. v.

5

Harris Cty., Tex., 236 F.3d 240, 249 (5th Cir. 2000). “Property interests . . . are not created by
the Constitution. Rather they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
i. Property Interest in Remains
The crux of Plaintiffs’ case is whether they have a protected property interest in their
deceased veteran family members’ remains. The question is complicated by the fact that the
remains have not yet been positively identified by the government using DNA testing, which
cannot happen until the remains are disinterred. Through circumstantial evidence, however,
Plaintiffs have indicated which unknown graves are allegedly the current resting locations of
each deceased service member.
The Fifth Circuit has found that where a state law creates a “quasi-property” interest in
remains, that interest may be subject to constitutional due process protections. See Arnaud v.
Odom, 870 F.2d 304, 308 (5th Cir. 1989) (applying Louisiana law to determine the quasiproperty interest). Plaintiffs have pointed to a case from each state in which an individual
plaintiff resides that recognizes a quasi-property interest in the remains of a deceased relative for
the purposes of burial. See Shelley v. Cty. of San Joaquin, 996 F. Supp. 2d 921, 927 (E.D. Cal.
2014) (recognizing quasi-property right in remains for limited purpose of determining burial, but
specifically holding that relatives have no general property interests subject to due process
protections in the remains of their deceased family members); Evanston Ins. Co. v. Legacy of
Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012) (acknowledging a longstanding recognition by
Texas courts of a quasi-property interest in remains to direct burial); Matter of Johnson, 612 P.2d

6

1302, 1305 (N.M. 1980) (recognizing that a quasi-property right in the remains of a deceased
relative may require that some due process protections be afforded to the relative in whom the
interest vests); Sullivan v. Catholic Cemeteries, Inc., 317 A.2d 430, 432 (R.I. 1974)
(acknowledging that remains are not property in the true sense of the term, but quasi-property “to
which are attached certain rights,” like burial, which nonetheless diminish once the body is laid
to rest); Koerber v. Patek, 102 N.W. 40, 43 (Wis. 1905) (finding that, while a corpse is not
property in the ordinary sense, a relative of the deceased does have a right to possession for
burial).
Defendants argue that, despite the quasi-property rights recognized by some state courts,
the remains at issue in this case are different because they are unidentified and are currently
“buried respectfully at a military commemorative cemetery.” Docket no. 31 at 24–25.
Defendants argue that Plaintiffs fail to establish a property interest in this case. Plaintiffs allege
that the remains have been identified based on circumstantial, contemporary evidence from
wartime records. Although quasi-property rights recognized by some states may be limited with
respect to burial of remains and a family member’s interest may diminish after burial, the Court
finds that, at this stage, Plaintiffs at least sufficiently allege a quasi-property interest in the right
to burial for their family members’ remains.
ii. Substantive Due Process
Courts have described the proverbial “line” which, if crossed, constitutes a substantive
due process violation differently. Action that substantively violates a protected right has
alternately been described as action that is “shocking or violative of universal standards of
decency,” Furtado v. Bishop, 604 F.2d 80, 95 (1st Cir. 1979), “arbitrary or capricious,” Simi, 236
F.3d at 249, or counter to “the concept of ordered liberty,” Palko v. State of Connecticut, 302

7

U.S. 319, 325 (1937). The Fifth Circuit has found that, when examining whether a policy that
obstructs a property interest is rationally related to a legitimate government interest, “[i]f the
question is at least debatable, there is no substantive due process violation.” Simi, 236 F.3d at
251 (5th Cir. 2000).
Defendants argue that Plaintiffs cannot show that Defendants’ actions were arbitrary or
capricious because Plaintiffs cannot show that the government made decisions “without a
rational connection between the known facts and the decision or between the found facts and the
evidence.” Docket no. 31 at 34 (citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168
F.3d 211, 215 (5th Cir. 1999) (dealing specifically with the standard of review for an action
brought under the Employee Retirement Income Security Act of 1974)). Defendants argue that
decisions over identification efforts must be made with limited resources and thousands of
unidentified subjects in mind. Id. Defendants reason that their structured thresholds for
disinterment are an appropriate basis for deciding not to disinter these particular remains at this
particular time. Id.
Plaintiffs allege that the government’s refusal to return allegedly identified remains to the
appropriate families for burial “shocks the conscience.” Docket no. 33 at 19. Plaintiffs argue that
their allegations that the remains are in fact identified, taken as true, render Defendants’
withholding of the remains a substantive due process violation. Id. at 19–20. At this stage, the
Court finds that Plaintiffs sufficiently allege a substantive due process violation.
iii. Procedural Due Process
“[T]he Due Process Clause provides that certain substantive rights—life, liberty, and
property—cannot be deprived except pursuant to constitutionally adequate procedures.”
Loudermill, 470 U.S. at 541. Before the government deprives an individual of a property interest,

8

the individual must receive notice and an opportunity to be heard. Id. at 542. A court weighs
three factors in determining whether the procedures employed were adequate: (1) the private
interest at stake, (2) the risk of erroneous deprivation and the probable value of additional
procedure, and (3) the government interest at stake. Mathews v. Eldridge, 424 U.S. 319, 335
(1976). Here, Plaintiffs allege that Defendants have failed “to even offer any proceedings
whatsoever.” Docket no. 19 at 18. Throughout their amended complaint, Plaintiffs allege that
Defendants have inadequate procedures for families to claim unidentified remains or request
exhumation. The Court recognizes the government has an interest in responding to requests
based on its limited resources. But given Plaintiffs’ private interests regarding their family
members’ remains and the alleged erroneous deprivation of an opportunity to be heard, the Court
finds that, at this stage, Plaintiffs sufficiently allege a procedural due process violation that will
benefit from further fact development.
C. Bivens Violation
The Supreme Court has recognized a private cause of action against federal officials who,
acting under color of federal law, violate a constitutional right of an individual. Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics. 403 U.S. 388 (1971). Bivens “provides a
cause of action only against government officers in their individual capacities.” Affiliated Prof'l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). Here, Plaintiffs
specifically state in their complaint that they are suing each individually-named Defendant in
that person’s official capacity only. Docket no. 19 at 2, n.2. Thus, Plaintiffs’ Bivens claims fail as
a matter of law.
D. Violation of the Administrative Procedures Act (“APA”)

9

“A federal court has no subject matter jurisdiction over claims against the United States
unless the government waives its sovereign immunity and consents to suit.” Rothe Dev., Inc. v.
U.S. Dep’t of Def., 666 F.3d 336, 338 (5th Cir. 2011) (quoting Danos v. Jones, 652 F.3d 577,
582 (5th Cir. 2011)). The APA waives sovereign immunity for judicial review of agency action
to the extent a party “adversely affected . . . by agency action” seeks “relief other than money
damages.” Id. (quoting 5 U.S.C. § 702). The APA provides for judicial review of “[a]gency
action made reviewable by statute and final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704. Immunity is waived except where (1) “statutes preclude
judicial review” or (2) “agency action is committed to agency discretion by law.” 5 U.S.C. §
701(a).
Congress intended to make agency action “presumptively reviewable.” Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). This
presumption can be overcome by “‘specific language or specific legislative history that is a
reliable indicator of congressional intent,’ or a specific congressional intent to preclude judicial
review that is ‘‘fairly discernible’ in the detail of the legislative scheme.’” Bowen v. Michigan
Acad. of Family Physicians, 476 U.S. 667, 673 (1986) (quoting Block v. Community Nutrition
Institute, 467 U.S. 340, 349, 351 (1984)). Where a statute does not expressly preclude review
under the APA, the statutory scheme as a whole may be considered to determine whether
preclusion of review is implied. Sackett v. E.P.A., 566 U.S. 120, 128 (2012). Preclusion can be
implied “from the structure of the statutory scheme, its objectives, its legislative history, and the
nature of the administrative action involved.” Block, 467 U.S. at 345. Still, “preclusion of
judicial review of administrative action adjudicating private rights is not lightly to be inferred.”

10

Barlow v. Collins, 397 U.S. 159, 166 (1970). In fact, “judicial review of such administrative
action is the rule, and nonreviewability an exception which must be demonstrated.” Id.
Defendants attempt to overcome the presumption of reviewability by pointing to a statute
that they allege precludes judicial review of the government’s decision not to disinter the
remains. The Missing Service Member Personnel Act (“MSPA”) creates two instances in which
judicial review of a finding regarding a missing person may be sought by a PNOK. First, a
finding “that a missing person is dead” is reviewable. 10 U.S.C. § 1508; see also 10 U.S.C. §§
1504, 1505. Second, a PNOK may seek review of a finding “that confirms that a missing person
formerly declared dead is in fact dead.” 10 U.S.C. § 1508; see also 10 U.S.C. § 1509. PNOKs
may seek review of these two findings when “there is information that could affect the status of
the missing person’s case that was not adequately considered during the administrative review
process under [the MSPA].” 10 U.S.C. § 1508.
Defendants argue that because the MSPA specifically permits review of those two
decisions, any other type of decision made pursuant to the MSPA is impliedly nonreviewable
under the APA. They rely on an order from a court in this district which concluded, based on a
similar claim, that the MSPA “provides for judicial review only for . . . specified decisions,
impliedly forbidding the review [sought] under the APA.” Docket no. 31 at 50–51 (quoting
Eakin v. Am. Battle Monuments Comm’n, No. SA-12-CA-1002-FB (Aug. 5, 2013)).
Plaintiffs point to a number of cases that take a different approach. In Abbott
Laboratories v. Gardner, the Supreme Court held that the presence of statutory provisions
allowing review of some regulations but not others did not mean that the review of the others
was barred; in fact, the statutory scheme as a whole in that instance lent itself to allowing review
of all regulations, not just the enumerated ones, because the legislative intent behind specifying

11

causes of action seemed to be to provide additional relief to standard means. Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 (1977) (“The mere fact that some acts are made reviewable should not suffice to support
an implication of exclusion as to others. The right to review is too important to be excluded on
such slender and indeterminate evidence of legislative intent.”); see also Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 63–64 (finding that an exclusive statutory scheme for review of an
immigration status determination did not preclude review of agency regulations). Other courts
have taken similar approaches. For example, the D.C. Circuit has held that a statute that allows
for judicial review of some types of agency action does not necessarily mean that other agency
action not specified in statute is nonreviewable. Int’l Ladies’ Garment Workers’ Union v.
Donovan, 722 F.2d 795, 807 (D.C. Cir. 1983). The court held “[t]he suggestion that provision of
such an action evidences a clear and convincing intent to exclude all other judicial relief, and in
particular the right of aggrieved parties to challenge allegedly arbitrary and capricious actions by
the [agency], borders on the incredible.” Id.
Defendants alternately argue that judicial review under the APA is precluded here
because the accounting mission operations are left to agency discretion. Docket no. 31 at 53. The
APA’s prohibition of judicial review where agency action is committed to agency discretion is
only “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a
given case there is no law to apply.’” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
410 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). This
exception to review applies “if the statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470
U.S. 821, 830 (1985). “An agency's own regulations can provide the requisite ‘law to apply.’”

12

Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998) (quoting McAlpine v. United States, 112
F.3d 1429, 1434 (10th Cir.1997)).
The Supreme Court has identified some relevant factors when evaluating an agency’s
exercise of discretion and reviewability. See Heckler, 470 U.S. at 831; see also Lincoln v. Vigil,
508 U.S. 182, 193 (1993). Where agency action requires “a complicated balancing of a number
of factors which are peculiarly within its expertise” to determine if its “resources are best spent”
on one program or another, whether it “is likely to succeed” in fulfilling a statutory mandate,
whether a particular program “best fits the agency’s overall policies,” and “whether the agency
has enough resources” to fund a program “at all,” the agency’s discretion may be nonreviewable.
Lincoln, 508 U.S. at 193 (quoting Heckler, 470 U.S. at 831). In explaining why an agency’s
decision not to enforce a regulation in a particular case was nonreviewable, the Supreme Court
pointed out that “when an agency refuses to act it generally does not exercise its coercive power
over an individual’s liberty or property rights, and thus does not infringe upon areas that courts
often are called upon to protect.” Heckler, 470 U.S. at 832 (emphasis omitted).
Even after a determination that an action was committed to agency discretion is made,
judicial review still may be available. For example, where the law does create a judicially
manageable standard by which to judge an agency’s actions, agency action can still be reviewed
for abuse of the discretion the agency was granted. Heckler, 470 U.S. at 830; see also 5 U.S.C. §
706(2)(A). Further, “[e]ven if the substance of an agency’s decision is beyond review as
discretionary, an agency's failure to follow its own regulations may be challenged under the
APA.” Ellison v. Connor, 153 F.3d at 252. Additionally, “even if agency action is committed to
its discretion by law, judicial review of constitutional claims is still available unless

13

congressional intent to preclude review is clear.” Id. at 254 (citing Webster v. Doe, 486 U.S. 592,
603 (1988)) (emphasis added).
Here, the Court finds that although MSPA allows for review of some specific decisions,
this does not preclude the review of other Department of Defense decisions. The review
Plaintiffs seek is not explicitly identified by MSPA, but based on the case law discussed above,
the Court does not find the statutory language sufficient to support the implication that the type
of review Plaintiffs seek here is excluded. Also, to the extent that the decision to disinter or not is
left to agency discretion, the DPAA has detailed policies for how to conduct its accounting
mission, which provide the Court sufficient standards by which to evaluate the DPAA’s action.
See DPAA Administrative Instruction No. 2310.01; Docket no. 31-1 at 164–91. Further, at this
stage the Court finds that APA review is available for Plaintiffs’ First, Fourth, and Fifth
Amendment constitutional claims because the Court finds no indication that Congress intended
to preclude review of constitutional claims. See Webster, 486 U.S. at 603.
After a claim surpasses the initial hurdle of whether judicial review is precluded by
statute or agency discretion, then a plaintiff must point to the “final agency action” they wish to
challenge “for which there is no other adequate remedy.” 5 U.S.C. § 704. “Failure to act” is an
“agency action” under the APA. 5 U.S.C. § 551(13). Agency action must meet two conditions to
be final: (1) “the action must mark the ‘consummation’ of the agency's decisionmaking process”
and (2) “the action must be one by which ‘rights or obligations have been determined,’ or from
which ‘legal consequences will flow.’” Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir.
1999) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). “In certain circumstances,
agency inaction may be sufficiently final to make judicial review appropriate.” Sierra Club v.
Peterson, 228 F.3d 559, 568 (5th Cir. 2000).

14

Defendants argue that Plaintiffs did not point to “specific actions” that demonstrated
Defendants’ alleged failure to act. Docket no. 31 at 55. In Sierra Club, however, the Fifth Circuit
reviewed agency action where “the action of failing to comply with the [agency’s own
regulations] ha[d] occurred.” Sierra Club v. Peterson, 185 F.3d 349, 364 (5th Cir. 1999), on
reh’g, 228 F.3d 559 (5th Cir. 2000). Here, Plaintiffs allege that the government violated many of
its own directives and regulations to recover, identify, and return remains. See, e.g., U.S. Army
Regulation 638-2; U.S. Army Field Manual FM 4-20-65 (FM 10-286); DoD Directive 1300.22;
DoD Directive 2310.07E. At this stage, the Court finds that Plaintiffs sufficiently allege a
violation of the APA based on Defendants’ alleged inaction as final agency action that is
reviewable.
E. Violation of the Free Exercise Clause and Religious Freedom Restoration Act
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.” U.S. Const. amend. I. To invoke First Amendment protections, a plaintiff
must plead he has a “sincerely held religious belief.” Frazee v. Illinois Dep't of Employment Sec.,
489 U.S. 829, 834 (1989). “After demonstrating that he possesses a ‘sincerely held religious
belief,’ a plaintiff must prove that a government regulation substantially burdens that belief.”
A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 701 F. Supp. 2d 863, 876 (S.D. Tex.
2009), aff'd, 611 F.3d 248 (5th Cir. 2010).
Under RFRA, “[g]overnment may substantially burden a person’s exercise of religion
only if it demonstrates that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). RFRA was enacted “to provide

15

greater protection for religious exercise than is available under the First Amendment.” Holt v.
Hobbs, 135 S. Ct. 853, 859–60 (2015).
Plaintiffs allege that Defendants have impeded their ability to freely practice their
religious tradition of providing a proper burial for their deceased loved ones by failing to return
their remains. Docket no. 19 at 32–33. Defendants first argue that Plaintiffs lack standing to
bring a Free Exercise claim on behalf of their deceased family members. Docket no. 31 at 36.
“To have Article III standing to pursue an alleged violation of the Free Exercise Clause, a
plaintiff must allege that his or her own ‘particular religious freedoms are infringed.’” Littlefield
v. Forney Indep. Sch. Dist., 268 F.3d 275, 292 n.25 (5th Cir. 2001) (citing Sch. Dist. of Abington
v. Schempp, 374 U.S. 203, 224 n.9 (1963)). Plaintiffs allege that government action “deprives
Plaintiffs, and their deceased family members, from having a proper burial in accordance with
each respective families’ religious beliefs.” Docket no. 19 at 32. Plaintiffs specifically allege that
the religious practice being burdened is that of the Plaintiffs—the living family members—to
bury their deceased family members. Docket no. 19 at 32–33. The Court finds Plaintiffs have
standing to bring Free Exercise claims based on their own religious beliefs.
Defendants also argue that Plaintiffs fail to properly allege a burden to their religious
practices and, even if they did, the government is acting according to a compelling interest using
the least-restrictive means. Id. at 37–42. Plaintiffs allege that their free exercise of their sincerely
held religious tradition of burial has been burdened because the government refuses to return the
remains of their relatives. Docket no. 19 at 32–33. These allegations are plausible on their face
and meet the pleading requirements at this stage of litigation for both a Free Exercise claim and a
RFRA claim. Plaintiffs state a valid claim for violation of the Free Exercise Clause and RFRA.
F. Mandamus Relief

16

Plaintiffs seek mandamus relief for a recovery of remains and for identification of
remains and further efforts. 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 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).
Plaintiffs allege that multiple military regulations and policies create a duty to return
remains to family members of the deceased. Docket no. 19 at 20–21 (citing Department of
Defense Directive Number 1300.22, Mortuary Affairs Policy (Oct. 30, 2015); Chairmen of the
Joint Chiefs of Staff, Joint Publication 4-06 Mortuary Affairs (Oct. 12, 2011), ¶¶ 1-2d, 2e; Army
Regulation 638-2). Plaintiffs point to numerous other military regulations and policies as a basis
for their seeking mandamus relief for identification of remains. Id. at 22–24.
But as this Court found with Plaintiffs’ Original Complaint, in their Amended Complaint
Plaintiffs fail to establish a specific, ministerial act, devoid of the exercise of judgment or

17

discretion on which to base a claim for mandamus relief against Defendants. Plaintiffs do not
attempt to seek mandamus relief under 10 U.S.C. §§ 1501-1513, as before, but the regulations
they point to here do not establish a nondiscretionary duty. 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.” DunnMcCampbell 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).
Further, the regulations and policies that Plaintiffs identify do not set out specific
nondiscretionary duties to which Defendants must adhere; they inherently involve discretion, just
as the Court found is true for the underlying statute (10 U.S.C. §§ 1501-1513). For example,
DoD Directive 1300.22 identifies the need to balance the recovery and identification with
“maintaining the dignity, respect and care of the deceased” and “protecting the safety of the
living.” DoD Directive 1300.22 § 3. Plaintiffs fail to demonstrate that Defendants’
responsibilities with respect to recovery and identification of remains are specific, ministerial
acts, devoid of the exercise of judgment or discretion. Thus, the Court finds that Plaintiffs fail to
state a valid claim for mandamus relief.
G. Plaintiffs’ Request for Declaratory Judgment
Plaintiffs seek a declaration that they have the right to possess the remains of their
deceased loved ones and have those remains returned to them. They also seek a declaration that
Defendants violated their First, Fourth, and Fifth Amendment rights.
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may

18

declare the rights and other legal relations of any interested party seeking such declarations,
whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The Act is “an enabling
Act, which confers a discretion on the courts rather than an absolute right upon the litigant.”
Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (citing Public Serv. Comm’n of Utah v.
Wycoff Co., 344 U.S. 237, 241 (1952)). Consequently, “the propriety of declaratory relief in a
particular case will depend upon a circumspect sense of its fitness informed by the teachings and
experience concerning the functions and extent of federal judicial power.” Id. A “case of actual
controversy” refers to the type of “Cases” and “Controversies” that are justiciable under Article
III. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). As applied to the Declaratory
Judgment Act, Article III requires that a dispute be “definite and concrete, touching the legal
relations of parties having adverse legal interests.” Id. (internal quotation marks omitted). A
court may not enter an advisory opinion on a hypothetical set of facts. Id. “[T]he question in each
case is whether the facts alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.” Id. at 127.
Plaintiffs rely on their statutory claims, identification of certain federal regulations and
policies, and request for mandamus relief as the basis for seeking a declaratory judgment. Docket
no. 19 at 26–30. Defendants argue that this Court lacks jurisdiction to grant relief pursuant to the
Plaintiffs’ Declaratory Judgment Act claims. Defendants argue “Plaintiffs must bring a valid
claim for an independent cause of action that provides the Court with subject matter
jurisdiction.” Docket no. 31 at 57. Defendants argue that because the independent actions which
could potentially confer jurisdiction here—claims pursuant to Bivens, the Mandamus Act, and

19

the APA—must all be dismissed, the Court has no jurisdiction over a declaratory judgment
claim.
As discussed above, the Court has found that Plaintiffs fail to state a valid Bivens claims
and any valid claims for mandamus relief. The Court, however, has found that Plaintiffs’ claims
for violations of the APA survive at this time. Thus, the Court finds that Plaintiffs have alleged
an independent cause of action which confers jurisdiction on this Court to grant declaratory
relief.
Plaintiffs also seek a declaratory judgment based on alleged violations of their First,
Fourth, and Fifth Amendment rights. As discussed above, Plaintiffs state valid claims for
violations of their First and Fifth Amendment rights. The Fourth Amendment states that “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[A] seizure deprives the
individual of dominion over his or her person or property.” Horton v. California, 496 U.S. 128,
133 (1990). Further, a seizure involving property occurs when “there is some meaningful
interference with an individual’s possessory interests in that property.” Soldal v. Cook County,
Ill., 506 U.S. 56, 61 (1992).
Defendants argue that the Plaintiffs’ Fourth Amendment claim fails because Plaintiffs do
not have a property interest in the remains in question. Whether Defendants unreasonably seized
Plaintiffs’ property relies, at this pleading stage, on whether Plaintiffs have a cognizable property
interest in the remains. As discussed above, because the Fifth Circuit has recognized that state
law can create quasi-property interests in remains which are afforded constitutional protections,
see Arnaud, 870 F.2d at 308, the Court finds that Plaintiffs adequately allege a Fourth
Amendment controversy subject to adjudication by declaratory judgment. Thus, the Court finds

20

Plaintiffs have alleged constitutional violations for which Plaintiffs, at this stage, may seek
declaratory relief.
II.

Motion to Compel Production of Remains
In the request for production at issue here, Plaintiffs sought to have Defendants disinter

about two dozen sets of remains for DNA testing and produce fourteen other sets of remains
associated with Cabanatuan grave 717 currently being held in storage, a group of remains alleged
to contain the balance of the remains of Private Kelder. Docket no. 28 at 3; Docket no. 28-1 at 5–
6. Defendants denied the request, objecting on the grounds that the Court lacks jurisdiction to
order Defendants to disinter the graves at issue and that the request is vague, exceeds the scope
of the Federal Rules, is unreasonable and disproportionate to the needs of the case, and would
place sensitive third-party information in Plaintiffs’ control. Docket no. 28-2 at 46-49.
Plaintiffs filed a motion to compel production of remains or, in the alternative, for
physical examination of the remains pursuant to Federal Rules of Civil Procedure 34, 35, and 37.
Docket no. 28. Plaintiffs request that the Court give Defendants no more than sixty days to
disinter and produce the remains to Plaintiffs, and order that examination and DNA testing will
be completed within forty-five days. Id. at 12. Plaintiffs request that the remains be produced at a
U.S. military base or facility located within 30 miles of San Antonio, Texas. Id. Alternatively,
Plaintiffs request that the Court issue an appropriate schedule providing deadlines for when
certain remains must be produced and examinations performed.
In the alternative to their motion to compel production, Plaintiffs ask the Court to order a
physical examination per Rule 35(a). Docket no. 28 at 10. Plaintiffs also filed a supplement
detailing a proposal that, if needed, they could implement to accomplish the requested
disinterment and DNA testing without government aid. Docket no. 40. In this advisory, Plaintiffs

21

state they are prepared to perform each action required through agreements made with the PFC
Lawrence Gordon Foundation, Kenyon International Emergency Services, and Bode Cellmark
Forensics. Id.
A. Plaintiffs’ Arguments Supporting an Order to Compel
a. Rule 34 and Common-law Discovery Principles
In their Motion to Compel, Plaintiffs seek the disinterment, production, and DNA testing
of the remains at issue under Rule 34. Under Rule 34, a party may request that the opposing
party “produce and permit the requesting party . . . to inspect, copy, test, or sample the following
items in the responding party’s possession, custody, or control: . . . any designated tangible
things[.]” FED. R. CIV. P. 34(a)(1)(B). If “a party fails to produce documents or fails to respond
that inspection will be permitted—or fails to permit inspection—as requested under Rule 34,” the
requesting party may move under Rule 37 for an “order compelling an answer, designation,
production, or inspection.” FED. R. CIV. P. 37(a)(3)(B)(iv). A party that opposes the Rule 34
request must “state with specificity the grounds for objecting to the request, including the
reasons.” Id. 34(a)(2)(B); Walters v. Sentry Link, LLC, No. 16-383, 2018 WL 837611, at *3
(W.D. Tex. Feb. 9, 2018) (“The party resisting discovery must show specifically how each
discovery request is not relevant or otherwise objectionable.”) (citing McLeod, Alexander, Powel
& Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
Plaintiffs argue that Rule 34 is broad enough to encompass orders for exhumation,
autopsy, and postmortem DNA testing, when appropriate under the circumstances. Docket no. 28
at 7-8 (citing, e.g. Zalatuka v. Metropolitan Life Ins. Co., 108 F.2d 405 (7th Cir. 1939); 7
Moore’s Federal Practice, § 34.12 (Matthew Bender 3d ed. 2017) (“Given the use of the broad
term ‘tangible thing,’ in Rule 34, it is difficult to imagine anything that could not be required to

22

be produced under appropriate circumstances. For example, a dead body has been held to be
subject to an order for production.”)).
Indeed, pointing to cases in which courts have condoned disinterment to resolve civil
litigation, Plaintiffs argue that courts have consistently allowed disinterment for discovery
purposes. The Fifth Circuit has found that where state law permits exhumation for resolution of
criminal cases, exhumation could be appropriate to promote justice in civil matters. Travelers
Ins. Co. v. Welch, 82 F.2d 799, 801 (5th Cir. 1936) (finding such in light of a Louisiana law that
permitted disinterment of remains for evidentiary purposes in criminal proceedings); see also
Stephens v. Nat’l Gypsum Co., 685 F. Supp. 847, 847–48 (M.D. Ga. 1988) (adopting the
reasoning in Travelers because, despite the reliance on Louisiana law to reach its conclusion, the
court’s reasoning was a generally applicable “accurate statement of the law”). Other courts have
considered factors such as a showing of good cause, urgent necessity, and a showing that
disinterment will establish the facts sought to allow for disinterment. Stephens, 685 F. Supp.at
847–48; see also Brewer v. Am. Med. Alert Corp., No. 1:08-0069, 2010 WL 280986, at *6 (M.D.
Tenn. Jan. 20, 2010) (granting a motion to disinter where the movant showed that disinterment
would definitively prove the deceased’s cause of death); Labiche v. Certain Ins. Companies or
Underwriters at Lloyd's, London, England, 196 F. Supp. 102, 105 (E.D. La. 1961) (finding
“where the interests of justice appear to require it, exhumation should be ordered”).
Plaintiffs argue that the facts of this case make an order for disinterment under Rule 34
appropriate. Additionally, Plaintiffs argue that common-law discovery principles support the
Court’s ability to grant this motion. Docket no. 28 at 7. Plaintiffs argue the families are entitled
to production of the remains under common-law principles because there is good cause for
production, production is necessary, and production will establish facts at issue in the quickest,

23

most efficient way. Id. The facts essential to this case can be resolved by family-conducted DNA
tests in weeks, Plaintiffs argue, while DPAA-conducted tests would not identify the remains
during the pendency of this case. Id.
b. Rule 35
Alternatively, Plaintiff argues that the requested discovery can properly be ordered under
Rule 35. Rule 35 applies where a person’s “mental or physical condition—including blood
group—is in controversy,” and permits the Court to order the party “to produce for examination
a person who is in its custody or under its legal control” for “a physical or mental examination by
a suitably licensed or certified examiner.” FED. R. CIV. P. 35(a)(1). Plaintiffs cite several cases
for the proposition that an evidentiary postmortem examination and DNA test can be ordered
under Rule 35(a). Docket no. 28 at 11 (citing In re Certain Asbestos Cases, 112 F.R.D. 427
(N.D. Tex. 1986) (finding that an evidentiary autopsy can be ordered pursuant to the terms of
Rule 35(a)); Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 539, 541 (M.D. Pa. 2002); Belkow v.
Celotex Corp., 1989 WL 56976 (N.D. Ill. May 19, 1989) (concluding that upon a “proper
showing Rule 35(a) permits the court to order an autopsy”)). Defendants argue that Plaintiffs fail
to meet additional requirements of Rule 35, namely that Plaintiffs must establish that a person’s
mental or physical condition is in controversy and that there is good cause for the examination,
which requires “far more than mere relevance.” Docket no. 34 at 22-23.
B. Defendants’ Arguments that Plaintiffs’ Motion Exceeds Discovery Constraints
Defendants do not appear to dispute that Rule 34 specifically or discovery tools generally
have sufficient breadth to accommodate the request at issue, but they object on other grounds,
namely that a presumption against the disinterment of remains applies (and is not overcome by
Plaintiffs) and that the request exceeds the external constraints imposed on discovery by Rule 26.

24

a. Presumption Against Disinterment of Remains
Defendants argue that “there is a well-established presumption against removing the
remains of a deceased person” that “is found throughout disinterment jurisprudence.” Docket no.
34 at 8 (citing Maffei v. Woodlawn Mem’l Park, 29 Cal. Rptr. 3d 679, 684 (Cal. Ct. App. June
10, 2005)). To overcome this presumption, Defendants argue that Plaintiffs must show that
justice requires production of the remains. Docket no. 34 at 9 (citing Brewer v. Am. Medical
Alert Corp., No. 1:08-0069, 2010 WL 280986, at *2 (“[T]he right to have a dead body remain
unmolested is not an absolute one; it must yield where it conflicts with the public good or where
the demands of justice require such subordination.”)). Further, Defendants argue that Plaintiffs
must show that examination will establish the facts sought. Docket no. 34 at 9 (citing Stephens,
685 Supp. at 847-48 (“Disinterment for the purpose of examination or autopsy will be ordered
upon a showing of good cause and urgent necessity and upon a strong showing that the
examination or autopsy will establish the facts sought.”); 25A C.J.S. Dead Bodies § 29
(Disinterment for evidentiary purposes requires “a strong showing that the facts sought will be
established by an exhumation or autopsy.”)).
Defendants argue that Plaintiffs have not overcome this presumption. Docket no. 34 at 8.
First, Defendants argue Plaintiffs have not shown justice requires disinterment and testing
because the information that DNA testing would reveal is not relevant to Plaintiffs’ claims,
which turn on currently available information. Id. at 10. Nor can Plaintiffs show urgency,
Defendants argue, because there is no showing that meaningful deterioration would occur while
this case is pending. Id. Second, Defendants argue that Plaintiffs have not shown that
examination will establish the facts sought because Plaintiffs have not established that the
Plaintiffs’ relatives will be among the requested remains, that the remains will likely provide

25

adequate DNA samples, that Plaintiffs’ consultant has the necessary capacity and experience,
and that the results will establish the relevant service members’ identities. Id. at 12.
Plaintiffs argue that a presumption against disinterment arises only when remains are
suitably buried, but that such a presumption does not apply here, where the graves in question are
unmarked and temporary and where the government intends to disinter each grave eventually.
Docket no. 35 at 3. If it does apply, Plaintiffs argue, then the Fifth Circuit requires only that the
discovery is in the interest of justice. Id. Plaintiffs contend they meet this standard because DNA
testing is the most effective tool available for providing additional evidence of the remains’
identities, which is the primary factual dispute in this case. Id. at 4. Further, even if additional
requirements apply, Plaintiffs argue they have shown that the discovery is necessary (because it
is the only way to obtain the information sought, id. at 5), urgent (because each day risks more
deterioration, id. at 6), and will establish the facts sought (because it will establish the remains’
genetic profile, which will assist in their identification, id. at 7).
b. Rule 26 Constraints
Here, the Court need not decide whether any or all of Rule 34, Rule 35, and common-law
discovery principles allow the disinterment and testing requested here. Nor is it necessary for this
Court to decide whether a presumption against disinterment is recognized in the Fifth Circuit or,
if such a presumption does apply, what requirements need be alleged to overcome it. It is
sufficient that, as discussed below, Plaintiffs’ Motion to Compel exceeds the constraints on
discovery imposed by Rule 26(b)(1).
Rule 26(b)(1) sets out the scope of permissible discovery, stating that
[p]arties may obtain discovery regarding discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the
26

parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely
benefit.
FED. R. CIV. P. 26(b)(1). If the Court determines that proposed discovery is outside this scope,
the Court “must limit the frequency or extent of discovery otherwise allowed by these rules[.]”
FED. R. CIV. P. 26(b)(2)(C)(iii). “Trial courts are afforded substantial discretion in determining
whether to grant or deny a motion to compel discovery.” Escamilla v. United States, No. 14-246,
2015 WL 12732889, at *2 (W.D. Tex. Apr. 13, 2015).
Here, Defendants argue that disinterment exceeds the scope of discovery set out in Rule
26(b)(1) because (1) it would reveal nothing relevant to Plaintiffs’ claims and (2) it is not
proportional to the needs of the case. First, Defendants argue that the request is irrelevant
because Plaintiffs’ challenge to agency action or inaction should be limited to the administrative
record. Docket no. 34 at 14. To the extent the claims are not so limited, Defendants argue, the
relevant dispute is not the remains’ ultimate identity, but whether the facts before the Court are
sufficient to require the agency to take specific action, rendering disinterment irrelevant. Id. at
15. Plaintiffs, in turn, argue that this is an attempt by Defendants to use the APA to limit
discovery for all of Plaintiffs’ claims, including those not rooted in the APA. Docket no. 35 at 9.
Plaintiffs also argue that Defendants, as the party resisting discovery, bear the burden to show a
given request is irrelevant. Id. (citing Nerium Skincare, Inc. v. Olson, No. 3:16-CV-1217-B, 2017
WL 277634, at *3 (N.D. Tex. Jan. 20, 2017)).
As the Court found above in its order on Defendants’ Motion for Judgment on the
Pleadings, several of Plaintiffs’ claims survive, including some not based in the APA. Thus, even
if Plaintiffs’ APA claims are determined to be limited to the administrative record, it is clear that
not all of Plaintiffs’ claims will be limited in this way. Here, the disinterment and testing of the

27

remains at issue is relevant within the meaning of the Federal Rules to, at minimum, any of
Plaintiffs’ claims not entirely limited to the administrative record.
Second, Defendants argue that disinterment is not proportional to the needs of the case
because it seeks ultimate relief under the guise of discovery, improperly intrudes on government
and third-party interests, and imposes burdens not outweighed by the litigation benefits. As an
initial matter, the Court notes that several of the proportionality factors set out in Rule 26(b)(1),
to the extent they are relevant, support Plaintiffs’ request: the constitutional issues at stake—
related to the return of fallen service members to their families for proper burial—are highly
important and the governmental Defendants have significant resources and sole access to the
information sought.
However, the final factor, “whether the burden or expense of the proposed discovery
outweighs its likely benefit,” proves decisive in this case. The likely benefit of this discovery is
obvious, as disinterment and testing would likely clarify the identities of the remains in question.
The Court suspects that if the remains are disinterred and identified as belonging to the
Plaintiffs’ relatives, Defendants at that point would not begrudge Plaintiffs the dignity of proper
burials. But if the remains are identified as belonging to fallen service members other than the
Plaintiffs’ relatives, the Court also suspects that Plaintiffs would no longer pursue this action or
would pursue it in a different manner. This likely benefit, however, must be weighed against the
burden. And while the Court is sensitive to the interests of the families and notes the oddity of
the Defendants’ refusal of Plaintiffs’ offered assistance in identifying the remains of fallen
service members, Plaintiffs’ Motion to Compel fails on the grounds of proportionality because of
the significant burden its granting would incur on Defendants.

28

Many of the burdens imposed by Plaintiffs’ request are obvious and relate to the costs of
disinterment and production, even if Plaintiffs conduct the testing themselves once the remains
are produced. This burden includes the significant financial expenses that would result from
conducting the disinterments, shipping the remains (with an escort to ensure dignified transfer),
securing and equipping a facility in San Antonio for proper treatment of the remains, and
monitoring Plaintiffs’ access and testing. Docket no. 34 at 21.
In addition to these burdens on funds and resources, Defendants argue an order to disinter
and test inappropriately intrudes on third-party interests and governmental duties. 2 As to thirdparty interests, Defendants argue that Plaintiffs’ Motion to Compel seeks resolution of Plaintiffs’
interests at the expense of other families, docket no. 34 at 18, and that Plaintiffs are not in a
position to protect the interests of other families whose relatives are among the remains at issue,
docket no. 34 at 20-21. Plaintiffs request for production seeks family DNA and genealogies in
Defendants’ possession, which Defendants allege was provided to Defendants under the
assurance that it would be protected. Docket no. 34 at 20. Another factor is that Plaintiffs do not
commit to a specific mode of DNA testing, and thus intend to select which bones to sample and
which tests to perform. Defendants argue this would grant Plaintiffs authority to “destroy a
portion of the remains of service members to whom Plaintiffs are not related.” Id. This intrudes
on third-party interests, Defendants argue, as well as on Defendants’ interests, as this would limit
DPAA’s options in its own testing. Id.
Relatedly, Defendants argue that Plaintiffs’ request intrudes on the duties of DOD and
DPAA. As detailed by Defendants, these duties include ensuring the respectful handling of the
remains of service members, implementing and enforcing policies that ensure only those remains

2

Defendants style this as an argument separate from its contention that the burdens outweigh the benefits, but the
Court views this point as part of the burden Plaintiffs’ request would impose.
29

likely to be identified are exhumed, and accounting for unidentified service members (using
DNA testing as well as work from historians, anthropologists, and others). Docket no. 34 at 2021. For their part, Plaintiffs argue that the government does not have a monopoly on identifying
fallen service members using DNA testing. Docket no. 44 at 4.
Relevant to this part of Defendants’ burden—disruption of Defendants’ duties—is
whether Defendants have expressed an intention to disinter all remains eventually, regardless of
this suit’s disposition. The parties disagree on this point. Plaintiffs argue that because DPAA has
recommended disinterment of the remains from Cabanatuan Common Graves 822 and 704, the
parties do not dispute that these remains—alleged to belong to relatives of three Plaintiffs—
should be disinterred. Docket no. 28 at 7. Defendants dispute this characterization, arguing that
their answer states only that
DPAA has an ongoing project to identify unknown remains from Camp
Cabanatuan interred in the Manila American Cemetery, and has been proposing
the disinterment of Cabanatuan remains one common grave at a time . . .,
provided that the standards set forth in Directive-type Memorandum-16-003
(DTM-16-003) are met; it is DPAA’s intention to disinter all Cabanatuan remains
in turn.
Docket no. 47 at 3 (citing [Docket no. 26]). Defendants argue that Plaintiffs seek disinterment of
remains unrelated to Camp Cabanatuan, and that therefore Plaintiffs’ contention that the
government has admitted most of the relevant facts is incorrect. Id. at 1. Instead, Defendants
concede that records associate four of the Plaintiffs’ relatives with specific common graves, but
they dispute Plaintiffs’ claim that this association is enough to consider these remains identified
or to demand disinterment. Id.
With respect to the other remains at issue, Plaintiffs point out that Defendants have
already disinterred Kelder’s remains, have recommended disinterment of Bruntmyer’s and
Morgan’s, and would recommend disinterment of Hansen’s if there were additional eligible
30

family reference samples. Docket no. 35 at 12. In deciding this discovery dispute, however, it
makes little difference whether Defendants intend to disinter these remains eventually—this
Court must credit Defendants’ contention that Plaintiffs’ Motion to Compel would alter their
planned execution of statutorily delegated duties and thus adds to the burden that must be
considered under Rule 26(b). The Court notes that whether Defendants’ ultimately intend the
eventual return of all fallen service members buried in the graves at issue or similar graves, and
whether Plaintiffs’ resources will hasten that return and provide relief to these service members’
families, could well prove relevant as this case progresses.
The Court notes that Plaintiffs offer, in their advisory, to bear many of the necessary
costs and burdens themselves. Docket no. 40. Plaintiffs stress that this offer is intended to show
what they can do if no cooperation is offered by Defendants, not what they must do; ideally, in
Plaintiffs’ view, Defendants would extend their cooperation, but Defendants have not done so.
Of course, should the Court allow Plaintiffs to undertake this operation themselves, alleviating
much of the financial burden disinterment places on Defendants, the intrusion on Defendants’
statutorily delegated responsibilities would become more acute (as would the risk of intrusion on
third-party interests). Defendants make this argument in response to Plaintiffs’ advisory, stating
that this offer shows Plaintiffs improperly seek to entirely displace governmental functions and
that Plaintiffs’ request is thus akin to, among other examples, a request for the court to order the
Secretary of Defense to outsource a military operation to a private company. Docket no. 43 at 2.
Thus, whether Plaintiffs or Defendants bear the brunt of the expense and responsibility in
disinterring and testing, Defendants are burdened regardless, either with respect to their
delegated duties or their resources.

31

Another of Defendants’ arguments as to proportionality is that disinterment and testing
inappropriately constitute ultimate relief under the guise of discovery. This is because Plaintiffs’
claims, Defendants argue, “boil down to whether any legal authority permits Plaintiffs to force
Defendants to disinter unidentified remains on Plaintiffs’ timetable and to prioritize
identification of those specific remains over Defendants’ other accounting efforts.” Docket no.
34 at 17. Plaintiffs frame the ultimate relief sought as proper burials of their relatives, not the
creation of a timetable that prioritizes their cases over others. Plaintiffs argue disinterment and
DNA testing is only a prerequisite for the relief sought, docket no. 35 at 11, while Defendants
argue it is the core relief sought, docket no. 34 at 17-18.
Discovery motions may not seek “all the disclosure to which [plaintiffs] would be
entitled in the event they prevail on the merits,” Cheney v. U.S. Dist. Ct. for Dist. of Columbia,
542 U.S. 367, 388 (2004), as only dispositive motions may seek ultimate relief, see Nored v.
Cuoco, No. 17-134, 2017 WL 2537292, at *2 (S.D. Ohio June 12, 2017). Here, although the
point is well taken that the purpose of Plaintiffs’ suit is to secure proper burials, the ultimate
relief sought from the Defendants is production of the remains. The Court notes, as do the
Plaintiffs, docket no. 44 at 6, that after testing the remains could be returned to the Defendants’
custody during the pendency of the suit. On this point, Plaintiffs contend that discovery would
erase all doubts as to the identity of the remains at issue—if the remains are identified as
Plaintiffs’ relatives, Defendants would concede and allow a proper burial, and if they are not so
identified Defendants could maintain custody and the case could move to trial. Docket no. 44 at
6. Nevertheless, Plaintiffs’ request likely does seek ultimate relief (or at least relief beyond the
normal bounds of discovery), and this fact weighs against granting Plaintiffs’ Motion to Compel.
If at this stage Defendants are unwilling to accept Plaintiffs’ offer of assistance, this Court is not

32

able to use discovery tools to override Defendants’ decision-making authority with respect to
which graves to disinter and on what timeline. That relief will come, if at all, later in these
proceedings, through a dispositive motion or at trial.
CONCLUSION
Accordingly, the Court GRANTS IN PART AND DENIES IN PART Defendants’
Motion for Judgment on the Pleadings and DENIES Plaintiffs’ Motion to Compel.
SIGNED this 23rd day of October, 2018.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

33