Patterson v. POW/MIA Accounting Agency

[[COURTLISTENER_SUBOPINION {"id":"10678174","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                        
              FOR THE WESTERN DISTRICT OF TEXAS                         
                    SAN ANTONIO DIVISION                                

JOHN A. PATTERSON, et al.,     §                                          
                             §                                          
   Plaintiffs,               §                                          
                             §                                          
v.                             §    Civil Action No. SA-17-CV-467-XR      
                             §                                          
DEFENSE POW/MIA ACCOUNTING     §                                          
AGENCY, et al.,                §                                          
                             §                                          
   Defendants.               §                                          
                             §                                          

                           ORDER                                        

   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.                                            
                        INTRODUCTION                                    
   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 

1 Unless otherwise cited, this recitation of facts is compiled from the parties’ statements of facts attached as 
appendices to their summary judgment briefing. See docket nos. 61-1, 64-1, 65-1, 68-1. Some facts in dispute are 
noted here, but all disputed facts relevant to the Court’s disposition of these motions are discussed in the analysis of 
Plaintiffs’ claims.                                                       
(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 
recommendation2 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.                                    

2 DPAA’s policy requires that all requests be forwarded for decision. DPAA cannot deny or permanently defer a 
request.                                                                  
   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 buried in or near the Abucay churchyard, not outside the wall or in the 


3 Plaintiffs state that these height estimates are inaccurate. Plaintiffs’ purported expert opines that height estimates 
from the period are inaccurate generally. Defendants challenge this opinion and Eakin’s other opinions in the 
pending Daubert motion. Defendants’ expert, on the other hand, opines that X-1130’s estimated stature and 
Nininger’s recorded stature cannot be reconciled.                         
village cemetery. In September 1950, X-1130 was deemed unidentifiable and Nininger was 
deemed unrecoverable.                                                     
   Plaintiff John Patterson requested in  February  2015 that DPAA disinter X-1130 for 
comparison to Nininger. DPAA recommended against disinterment. The historical evidence is 
conflicted, Defendants note. For example, Clarke’s letter is, Defendants argue, the central basis 

for  the  AGRS  memo,  but  Clarke  left  Bataan  before  the  burials  and  others  of  Clarke’s 
identifications have been deemed inaccurate retroactively. Also, there are 51 total unidentified 
remains from the Abucay town area. Ultimately, DPAA concluded “there exists too much doubt 
as to the location of the burial and subsequent recovery area for these remains” and the “historic 
evidence is not strong enough to overcome the 4.5-inch discrepancy with the highest estimated 
stature of X-1130.” On March 4, 2016, Patterson’s request was denied.     
          ii.  Fort                                                     
   Brigadier General  Fort, who commanded the 81st Division of the Philippine Army, 
ordered the surrender of all U.S. forces in the Philippines on May 6, 1942. The Japanese forces 

executed Fort.                                                            
   The governor of Misamis Oriental Province, Ignacio Cruz, gave AGRS a sworn statement 
in 1947. In that statement, Cruz reported conversations with several individuals, some of whom 
saw a “big American.” A Filipino soldier reportedly told Cruz he saw Fort killed. Based on these 
conversations, Cruz had remains X-618 disinterred and provided to AGRS. In doing so, Cruz 
stated that he provided the “supposed remains of Gen. Guy O. Fort” to AGRS. Defendants doubt 
the veracity and conclusiveness of some of Cruz’s sources.                
   The remains turned over by Cruz were disinterred in Cagayan, but Defendants note 
several sources report Fort was executed in Dansalan, which is 45 miles from Cagayan. Further, 
Fort was in his 60s; of European ancestry; recorded at 5 feet, 8.5 inches; and was missing a tooth 
in the upper right of his mouth. Before reinterring the remains, AGRS assessed X-168. This 
assessment estimated X-168 was 23 to 28 years old, had an ancestry of “Mongoloid (Very 
Probably Filipino),” and was no taller than 5 feet, 6.4 inches. In three examinations by different 
AGRS analyst, no missing tooth was recorded on X-168.                     

   Plaintiff Fort requested in 2017 that DPAA disinter X-168 for comparison to Fort. In 
August 2018, DPAA recommended against disinterment based on the above discrepancies. On 
November 28, 2018, Plaintiff Fort’s request was denied.                   
          iii.  Stewart                                                 
   Colonel  Stewart,  who  commanded  the  51st  Infantry  Regiment  of  the  51st  Infantry 
Division, was killed during a counterattack he helped organize on January 13, 1942. He was 
awarded the Silver Star for this action. Plaintiffs state Stewart’s soldiers recovered and buried his 
remains. Defendants, on the other hand, state the only evidence is from a Filipino civilian who 
recalled in December 1946 that Philippine scouts told him they were burying an American 

colonel.                                                                  
   Master Sergeant Abraham apparently knew Stewart personally and searched for his grave 
for a week. He discovered and disinterred the remains designated X-3629 and associated them 
with Stewart (misspelling the name as “Stuart”). Abraham made this association based on the 
1946 statement from Ruben Caragay, the Filipino civilian mentioned above, and the fact that 
Stewart was the only colonel missing near Abucay. Defendants believe Caragay only mentioned 
a  colonel,  and  Abraham  supplied  Stewart’s  name.  Defendants  note  Abraham  did  not  have 
identification authority and sent the remains for AGRS processing. Plaintiffs contend Abraham’s 
misspelling Stewart’s name led AGRS to request the wrong dental records, but Defendants label 
this unwarranted speculation. X-3629 was buried as an unknown at Manila American Cemetery.  
   Stewart’s stature was recorded between 5 feet, 7.25 inches and 5 feet, 8.5 inches, while 
X-3629’s estimated stature was no taller than 5 feet, 5.6 inches. Defendants note that four dental 
examinations recorded Stewart as missing the same two teeth, while X-3629’s teeth were charted 

three times, and each time the analysts concluded X-3629 lost only one tooth before death. 
   Plaintiff Boyt requested in November 2017 that DPAA disinter X-3629 for comparison to 
Stewart. DPAA made a list  of 21 candidates who died in  the area, including Stewart and 
Nininger. DPAA’s forensic anthropologist and orthodontist eliminated all but two candidates, for 
whom DPAA awaits family reference samples. Although Stewart was excluded as a candidate 
based on stature and dental discrepancies, disinterment of X-3629 was ultimately approved on 
June 21, 2019, based on the likelihood that X-3629 can be identified as one of the other 
candidates. See docket no. 73 (Defendants’ Notice of Factual Developments, filed July 17). 
   Defendants note DPAA is taking steps that could lead to the identification of Nininger, 

Stewart,  Fort,  and  other  unrecovered  servicemembers.  See  docket  no.  61-1  at  35-36.  For 
example, as part of a comprehensive study of remains from Abucay and the Bataan temporary 
cemeteries, DPAA seeks to identify burial patterns and draft short lists for recovered unknowns.  
   As it stands, Defendants have disinterred the common graves associated with all four 
servicemembers who died as POWs, have disinterred the remains requested by Plaintiff Boyt 
(although her relative, Colonel Stewart, was previously excluded as a candidate), and denied 
requests to disinter the remains requested by Plaintiffs Fort and Patterson (pertaining to General 
Fort and First Lieutenant Nininger, respectively). As the Court understands the record, no DPAA 
disinterment  request  remains  pending  and  the  remains  from  disinterred  graves  at  issue  are 
undergoing testing.                                                       
II.  Procedural History                                                   
   Plaintiffs filed their complaint on May 25, 2017. Docket no. 1. In a prior order, this Court 
granted Defendants’ Motion to Dismiss (docket no. 7) and gave Plaintiffs leave to amend their 

complaint. Docket no. 14. Plaintiffs filed an amended complaint on January 4, 2018. Docket no. 
19.  The  amended  complaint  brought  claims  for  substantive  and  procedural  due  process 
violations, a Bivens violation, a violation of the APA, violations of the Free Exercise Clause and 
Religious  Freedom  Restoration Act, 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 filed a Motion to Compel Production of Remains or, in the Alternative, for 

Physical Examination (docket no. 28) on April 13, 2018, and Defendants filed a Motion for 
Judgment on the Pleadings (docket no. 31) on April 20, 2018. In an order addressing both 
motions, the Court denied the Motion to Compel and granted in part the Motion for Judgment on 
the Pleadings. Docket no. 51. The Court dismissed Plaintiffs’ Bivens claim and request for 
mandamus relief, but allowed the following claims to proceed: substantive and procedural due 
process violations, Fourth Amendment violations, APA violations, Free Exercise Clause and 
RFRA violations, and request for declaratory judgment. Id.                
   Now before the Court are Defendants’ Motion to Exclude the Expert Opinions of John 
Eakin and Renee Richardson (docket no. 55), filed on March 16, 2019; Defendants’ Motion for 
Summary  Judgment  (docket  no.  61),  filed  on  April  20;  and  Plaintiffs’  Motion  for  Partial 
Summary Judgment (docket no. 65), filed on May 10. The Court heard oral argument on all 
pending motions on July 22. The Court will first consider the motions for summary judgment, 
and if any of Plaintiffs’ claims survive, the Court will turn to the motion to exclude Plaintiffs’ 
experts.                                                                  

                          ANALYSIS                                      
III.  Motions for Summary Judgment                                        
   Defendants move for summary judgment on all claims (docket no. 61), while Plaintiffs 
seek  partial  summary  judgment  (docket  no.  65).  Specifically,  Plaintiffs  seek  resolution  of 
questions  relevant  to  their  due  process  claims  (namely,  whether  Defendants  owe  families 
additional procedural  protection and whether PNOKs have a protected right  to  possess the 
remains of a relative for purposes of burial) and their APA claims (namely, whether Defendants 
should have promulgated certain rules and regulations and whether Defendants improperly made 
formal adjudications without a formal hearing). These overlapping motions are best analyzed 

together.                                                                 
   A.  Legal Standard                                                   
   A party is entitled to summary judgment only if it demonstrates that there is no genuine 
dispute of material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 
56(a). In order to demonstrate that there is no genuine issue of material fact, a movant either has 
to negate the existence of a material element of the non-movant’s claim or defense or point out 
that the evidence in the record is insufficient when the non-movant bears the burden of proof for 
that element at trial. Lavespere v. Niagra Machine & Tool Works, Inc.,
910 F.2d 167
, 178 (5th 
Cir. 1990). To satisfy its initial responsibility, a movant without the burden of proof at trial need 
only point out that there is an absence of evidence to support the non-movant’s claim to shift the 
burden to the non-movant to show that summary judgment is not proper. See Fields v. City of S. 
Hous.,
922 F.2d 1183
, 1187 (5th Cir. 1991).                               
   There is a genuine issue of material fact when the evidence allows a reasonable jury to 
return a verdict for the non-movant. Rogers v. Bromac Title Servs., L.L.C.,
755 F.3d 347, 350
(5th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986)). In order to 
conclude  that  no  genuine  issue  of  material  fact  exists,  the  court  must  be  satisfied  that  no 
reasonable trier of fact could have found for the non-movant. See Anderson,
477 U.S. at 250
n.4.   
A court on summary judgment must review the summary judgment record taken as a whole, but 
the court is not permitted to make “credibility determinations or weigh the evidence.” Reeves v. 
Sanderson Plumbing Prods., Inc.,
530 U.S. 133
, 150–51 (2000). The court must review “all facts 
and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers,
596 F.3d 
260, 266
(5th Cir. 2010).                                                 
   B.  Due Process Claims                                               

   The Court first addresses Plaintiffs’ procedural and substantive due process claims. First, 
and principally, Defendants argue that Plaintiffs state no cognizable property or liberty interest, 
which several of Plaintiffs’ claims require. Without such an interest, Plaintiffs’ claims rooted in 
the Due Process Clause and Fourth Amendment fail. Thus, the Court first decides this question: 
Do the Plaintiffs state a constitutionally cognizable property or liberty interest in the return of 
their relatives’ remains?                                                 
   For their part, Plaintiffs argue genuine fact issues—particularly in the identification of the 
remains—bar any resolution of their interest at this stage. Construed in their favor, they contend 
the summary judgment record states a cognizable interest in possessing their relatives’ remains 
for purposes of burial. Even if this is true, Defendants argue their procedural due process claim 
fails because Plaintiffs are owed no additional procedural safeguards and their substantive due 
process claim fails because Plaintiffs cannot identify sufficiently egregious conduct.  
   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. 
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                                
   Plaintiffs’ case turns largely on whether they have a protected property interest in their 
deceased relatives’ remains. The Court must start with Plaintiffs’ framing of this right. That 
interest, Plaintiffs claim, is “a property and liberty interest in the remains of their relatives for 
purposes of providing a final burial, and those interests are entitled to protection under the Due 

Process Clause.” Docket no. 64 at 11. As stated in their partial summary judgment motion, 
Plaintiffs seek a declaration that they have “a constitutional, statutory, and/or common law right 
to possess the remains of their family members for purposes of burial.” Docket no. 65 at 22.  
   In its prior order on the Motion for Judgment on the Pleadings, the Court allowed 
Plaintiffs’ due process claims to proceed. It did so in part because Plaintiffs alleged that “the 
remains have been identified and located.” The Court, accepting that allegation as true and 
presented with Plaintiffs’ list of cases recognizing some sort of property interest in relatives’ 
remains, denied judgment on the pleadings for the due process claims. With the benefit of the 
summary judgment record, however, the Court sees the remains were not identified and located 

then and are not now.                                                     
   The Court’s sympathy for Plaintiffs’ position notwithstanding, Plaintiffs’ framing of their 
alleged property interest and the marshalling of legal authority in support of that interest have not 
evolved  over  the  course  of  litigation.  Instead,  Plaintiffs  have  been  content  to  repeat  or 
incorporate by reference their same arguments raised against Defendants’ Motion for Judgment 
on the Pleadings. But at that stage, the Court stated the following:      
        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.               
Docket no. 51; Patterson,
343 F. Supp. 3d 637, 647
(W.D. Tex. 2018).      
   Since then, the record has clarified that the remains are not identified. Defendants thus 
argue that Plaintiff’s purported property interest is in unidentified remains. Of course, Plaintiffs 
argue that identification is a fact issue that precludes summary judgment. That is, if the factfinder 
determines at trial that the remains are identified, then Plaintiffs’ property interest is in identified 
remains, not unidentified remains. But Defendants argue the material facts are not in dispute: 
“Everyone is looking at the same historical records. And those records cannot be tested at trial 
any better than at summary judgment. No witness from the 1940s can be put on the stand. 
Instead, the dispute between the parties concern whether the other party is making appropriate 

use of this undisputed evidence.” Docket no. 68 at 11. Defendants argue the weighing of these 
facts—which to discount, which to emphasize—is disputed, but the facts themselves are not. At 
summary  judgment  or  at  trial,  the  dental  records,  measurements  of  bone  lengths,  maps  of 
Abucay, records of deaths in Camp Cabanatuan, findings of Master Sergeant Abraham, and 
myriad other indicia will be the same. This argument is persuasive. The Court must review the 
facts in the light most favorable to Plaintiffs “only when both parties have submitted evidence of 
contradictory facts,” Shumpert v. City of Tupelo,
905 F.3d 310, 323
(5th Cir. 2018), and most 
facts relevant to identification are not disputed.                        
   Still, even viewed in Plaintiffs’ favor, no rational factfinder could identify any given set 
of remains as belonging to a relative of a Plaintiff. Simply put, the discovery process has not 

borne out Plaintiffs’ allegations that wartime records identify the remains. Defendants  now 
appear close to identifying some of the servicemembers at issue. When this litigation began in 
May 2017, the remains that Plaintiffs associate with Morgan, Bruntmyer, Hansen, and Stewart 
were buried where they had been for decades. Now, these remains, although not identified, have 
been disinterred or approved for disinterment. Still, the Court cannot, on this record, accept 
Plaintiffs’ assertion that any—much less all—of the remains are identified. A rational factfinder 
could, for example, weigh the historical and scientific evidence and find it likely that the remains 
of  Plaintiffs’  relatives  are  among  a  common  grave’s  commingled  remains.  That  is  not  an 
identification. This immediately distinguishes the cases the parties have argued at length. In none 

of those cases could doubt be cast on the remains’ identity.              
   Plaintiffs’ proposed property interest, which is already stated at the highest level of 
generality, must thus be recast as an interest in unidentified remains.4 No case cited by the parties 
or revealed in the Court’s research recognizes a cognizable property interest in remains the 
identity of which is in doubt. Putting that problem aside, and assuming for argument that the 
remains were identified, Plaintiffs still do not state a cognizable property interest. This is because 
a property interest, for due process purposes, cannot be stated at so high a level of abstraction. 
   As a preliminary matter, the parties do not agree which jurisdiction’s substantive law 
should apply (i.e., in which source of law, state or otherwise, must Plaintiffs locate their property 

interest). First, Plaintiffs argue “there is a deeply rooted common law principle, applicable in all 
jurisdictions, establishing the next of kin’s entitlement to possess, control, and bury the remains 
of their loved ones.” Docket no. 64 at 13 (citing Newman v. Sathyavaglswaran,
287 F.3d 786
(9th Cir. 2002)). Newman does include broad language. See, e.g., 287 F.3d at 798 (“The property 
rights that California affords to next of kin to the body of their deceased relatives serve the 


4 Even if presented with authority that establishes such a right, though, the Court would need to reconcile its 
recognition of this right with the rights of families not party to this litigation. That is, if Plaintiffs claim a property 
interest in the commingled remains of a common grave, for example, they cannot establish which specific bones 
belong to their relatives, even if they could establish that their relatives’ bones were among those disinterred (and 
they cannot establish this). Since they cannot parse the bones, they would be claiming a property interest in all the 
bones. Since all the bones are surely not those of their relatives, it follows that other families could claim the exact 
same property interest in the exact same bones. Plaintiffs thus ask the Court to subordinate these families’ rights. 
Despite Defendants’ repeated references to this practical problem, Plaintiffs have not grappled with the issue. 
premium value our society has historically placed on protecting the dignity of the human body in 
its final disposition.”). But the Newman holding has been described as a “narrow” one: 
        In  the  anatomical  gift  context,  the  Ninth  Circuit  held  that  California 
   parents have a due process property interest in the corneal tissue of their deceased 
   children in [Newman,
287 F.3d 786
]. . . . However, the court in Newman was 
   careful to note it was not broadly recognizing a property right in all remains, 
   reasoning, for example, that its holding in no way undermines the ‘California law 
   governing the state's duty to conduct autopsies to determine the cause of death 
   which may be performed contrary to the wishes of the individual or next of kin.’ 
   Id. at 798 n. 15. The narrow scope of the holding in Newman was recognized by 
   the only district court to consider Newman: In Picon v. County of San Mateo, a 
   district  court  concluded  the  Ninth  Circuit's  holding  in  Newman  ‘cannot  be 
   extended to body parts other than corneas,’ because the basis of the Newman 
   decision  was  the  statute  specifically  pertaining  to  corneal  tissue.
2008  WL 
   2705576
, at *3 (N.D. Cal. July 10, 2008).                            

Shelley v. Cty. of San Joaquin,
996 F. Supp. 2d 921, 926-27
(E.D. Cal. 2014). 
   Thus, Newman does not recognize a universally applicable property right in remains. As 
Defendants note, “Plaintiffs cannot rest on characterizations of the common law backdrop in 
cases like Newman because . . . what matters are the particular legal standards of the relevant 
jurisdiction.” Docket no. 68 at 41. To that end, Plaintiffs argue that the relevant jurisdictions are 
the  states  in  which  Plaintiffs  reside:  California,  Texas,  New  Mexico,  Rhode  Island,  and 
Wisconsin. Docket no. 19 at 17. Defendants argue that, under a “most significant relationship” 
test, federal law must be the source of the property interest, as the remains are buried in a 
military  cemetery  under  federal  purview.  Docket  no.  61  at  32.  If  Defendants  are  correct, 
Plaintiffs’ claim clearly fails. There is no federal common law on this point and the relevant 
statutes and regulations indicate that the Government retains discretion in disinterment decisions 
and that a relative can only direct disposition of remains after the servicemember is identified. Id. 
at 32-33.                                                                 
   The Court assumes for argument that Plaintiffs’ view is correct and Plaintiffs’ residences 
provide  the  correct  jurisdictions.  It  is  undisputed  that  courts—including  those  in  each  of 
Plaintiffs’  jurisdictions5—have  grappled  with  whether  to  recognize  a  property  interest  in 
relatives’ remains for burial direction. Some courts have considered such an interest cognizable 
under the Due Process Clause. See Arnaud v. Odom,
870 F.2d 304, 308
(5th Cir. 1989) (applying 

Louisiana law to determine the quasi-property interest). But in those cases, the interest was 
inspected under state law and its contours were determined. For example, in Arnaud, the court 
examined Louisiana law and determined it created a cognizable property interest in the relief the 
plaintiff  sought.  Here,  by  contrast,  Defendants  correctly  characterize  Plaintiffs’  request  as 
“insist[ing] that all legal sources—common law, various states’ laws, and federal common law—
reach the same result at the highest level of abstraction.” Docket no. 68 at 39.  
   Plaintiffs are asking the Court to recognize a novel interest. Given the novel interest at 
issue, it was incumbent on Plaintiffs to establish that the laws of each pertinent jurisdiction 
establish a property interest of the type they claim and that this interest is constitutionally 

cognizable. Plaintiffs have not done so. No case cited here or revealed in the Court’s research 
concerns unidentified remains, nor does any case concern remains buried for decades. If there is 
a right, it appears to diminish over time. And if there is a right to identified remains, it does not 


5 See, e.g., 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 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).              
follow that there is a right to unidentified remains. Plaintiffs ask the Court to decide that the laws 
of five states grant a property interest in unidentified remains buried decades prior as unknowns 
in military cemeteries when none of these states have done so explicitly, and they ask the Court 
to make this decision without parsing the laws of these states individually.  
   Thus, there is no cognizable property interest for several reasons. Most fundamentally, no 

relevant jurisdiction recognizes a property interest in unidentified remains and the remains at 
issue are not identified. Even if they were identified, and even if Plaintiffs’ jurisdictions of 
residence provide the proper law under which to analyze the property interest, Plaintiffs have not 
adequately shown that each jurisdiction recognizes an interest like the one they ask the Court to 
recognize. And even if there were a property interest recognized by each—or any—relevant 
state, Plaintiffs have not adequately described the contours of that interest or shown that the 
interest is cognizable under the Due Process Clause.                      
        ii.  Liberty Interest in Remains                                
   Alternatively, Plaintiffs argue they have a liberty interest in the remains because the 

“liberty to bury our relatives and loved ones is deeply rooted in our history.” Docket no. 64 at 21. 
Defendants argue Plaintiffs “are not asserting the ordinary right of the next of kin to dispose of 
their relative’s remains pursuant to state law or federal regulation,” however, but are instead 
“asserting a liberty interest in access to remains of unidentified soldiers who died overseas and 
were buried by the government as unknowns almost 70 years ago.” Docket no. 68 at 35. As 
Defendants note, no court has accepted Plaintiffs’ “vague statements of societal recognition of 
family rights and duties regarding burial of a recently deceased relative.”
Id.
Courts have insisted that an “asserted liberty interest be rooted in history and tradition,” 
Michael H. v. Gerald D.,
491 U.S. 110, 123
(1989), which Plaintiffs cannot show for their 
asserted interest. It is not enough that society recognize a person’s general interest in burying a 
relative. The Court’s analysis “must begin with a careful description of the asserted right.” Reno 
v. Flores,
507 U.S. 292, 302
(1993). But Plaintiffs’ asserted liberty interest runs into the same 
problem as their property interest: it is drawn too broadly and backed by insufficient authority. 
Plaintiffs cannot  show an interest  rooted in  history, as Defendants  persuasively detail  how 

“[h]istory shows that the practice of individual burial for soldiers who died in foreign conflicts, 
let alone a  government responsibility to  recover and return remains to families, are recent 
developments.” Docket no. 68 at 35-38.                                    
   Thus, without either a cognizable liberty or property interest, Plaintiffs’ procedural and 
substantive  due  process  claims  fail.  Accordingly,  the  Court  grants  summary  judgment  for 
Defendants on Plaintiffs’ due process claims.                             
   C.  Fourth Amendment Claim                                           
   Plaintiffs also bring a claim under the Fourth Amendment for unreasonable seizure. For 
the reasons stated above, however, Plaintiffs state no cognizable property interest, and thus 

Defendants cannot have meaningfully interfered with Plaintiffs’ property rights. Defendants’ 
summary judgment motion is granted on this claim.                         
   D.  Free Exercise Clause and Religious Freedom Restoration Act Claims 
   Next, the Court turns to Plaintiffs’ claims related to their religious interest under the Free 
Exercise Clause of the First Amendment and RFRA. 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 
greater protection for religious exercise than is available under the First Amendment.” Holt v. 
Hobbs,
135 S. Ct. 853, 859-60
(2015).                                     
   A plaintiff raising a RFRA claim bears the initial burden of establishing “the existence of 
a substantial interference with the right of free exercise.” Diaz v. Collins,
114 F.3d 69, 72
(5th 
Cir. 1997). “The sincerity of a claimant’s belief in a particular religious exercise is an essential 
and threshold element of this burden.” Louisiana College v. Sebelius,
38 F. Supp. 3d 766, 777
(W.D. Tex. 2014) (citing Tagore v. United States,
735 F.3d 324, 328
(5th Cir. 2013)). “[W]hile 
the ‘truth’ of a belief is not open to question, there remains the significant question of whether it 

is ‘truly held.’” United States v. Seeger,
380 U.S. 163, 185
(1965). The belief need not be central 
to the religion, but the adherent must “have an honest belief that the practice is important to his 
free exercise of religion.” Moussazadeh v. Texas Dep't of Criminal Justice,
703 F.3d 781, 790-91
(5th Cir. 2012) (quoting Sossamon v. Lone Star State of Tex.,
560 F.3d 316, 332
(5th Cir. 2009)). 
The sincerity of a religious belief is not often challenged, so it is generally presumed or easily 
established.
Id.
Plaintiffs bring claims under RFRA and the Free Exercise Clause. At summary judgment, 
however, Plaintiffs have essentially rested on their pleadings. The Court allowed these claims to 
proceed because Plaintiffs “allege[d] 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. Now, Plaintiffs incorporate by reference their briefing from 
the Motion for Judgment on the Pleadings and add little else. They state “the facts alleged in the 
Amended Complaint show that the Government has placed a substantial burden on the Families’ 
exercise of religion.” Docket no. 64 at 29. However, before the burden shifts to Defendants to 

show a compelling government interest that was furthered using the least restrictive means, 
Plaintiffs must produce summary judgment evidence meeting their burden to show a substantial 
burden of their sincerely held beliefs.                                   
   Yet  all  Plaintiffs  add  to  the  complaint’s  minimally  detailed  allegations  is  another 
reference to their assertion that the remains at issue are identified, and as discussed above the 
remains are not identified. The record reveals nothing further about Plaintiffs’ religious beliefs or 
how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours 
of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, 
Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they 

produce  no  declarations  or  other  evidence  outlining  these  beliefs.  Defendants  thus  contest 
whether Plaintiffs’ beliefs are sincerely held.                           
   The Court is inclined to grant summary judgment on the sincerity grounds urged by 
Defendants,  given  Plaintiffs’  total  lack  of  evidence.6  Courts  have  cautioned,  however,  that 
“[t]hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial 
shyness,’” Moussazadeh,
703 F.3d at 791
(quoting A.A. ex rel. Betenbaugh v. Needville Indep. 
Sch. Dist.,
611 F.3d 248, 262
(5th Cir. 2010)), and “claims of sincere religious belief in a 
particular practice have been accepted on little more than the plaintiff's credible assertions,” 
Tagore,
735 F.3d at 328
.                                                  

6 Plaintiffs must support their claims with evidence, at summary judgment. See FED. R. CIV. P. 56(e)(2).  
   In keeping with this tradition of “judicial shyness,” then, the Court assumes Plaintiffs 
show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial 
interference with  these  beliefs.  As Defendants  note, Plaintiffs allege only that their beliefs 
require  a  “proper  burial,”  but  without  any  explanation  of  what  makes  a  “proper  burial  in 
accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged 

interference. Docket no. 68 at 60 (citing docket no. 19 at 32). Thus, Plaintiffs do not meet their 
initial burden for either their RFRA or Free Exercise claims.             
   The Court will address one final alternative reason these claims fail.  A “substantial 
burden” is one that “truly pressures the adherent to significantly modify his religious behavior 
and significantly violate his religious beliefs.” Adkins v. Kaspar,
393 F.3d 559, 570
(5th Cir. 
2004). “[T]he effect  of a  government  action or regulation  is  significant  when it either (1) 
influences the adherent to act in a way that violates his religious beliefs, or (2) forces the 
adherent to choose between, on the one hand, enjoying some generally available, non-trivial 
benefit, and, on the other hand, following his religious beliefs.”
Id.
But “a government action or 

regulation does not rise to the level of a substantial burden on religious exercise if it merely 
prevents the adherent from . . . enjoying some benefit that is not otherwise generally available[.]”
Id.
Defendant correctly argues that “Plaintiffs are essentially claiming that the Government owes 
them affirmative actions—such as disinterring unknown buried remains and making efforts to 
identify them—in order to comply with RFRA and the Free Exercise Clause.” Docket no. 68 at 
61. To give Plaintiffs what they seek, Defendants must recover, disinter, and identify the remains 
at issue. These affirmative acts are not available relief under RFRA or the Free Exercise Clause. 
   Thus, Defendants are granted summary judgment on Plaintiffs’ RFRA and Free Exercise 
Claims.                                                                   
   E.  Violation of the Administrative Procedures Act (“APA”)           
   Finally, the Court turns to Plaintiffs’ alleged APA violations, which have swelled over 
the course of the lawsuit. In a prior order, the Court held that the statutory scheme did not 
preclude judicial review. Here, disposition of Plaintiffs’ APA claims does not require that the 
Court revisit this earlier holding. Even assuming review is available under the statute, Plaintiffs’ 

various APA claims fail.                                                  
   Plaintiffs argue Defendants have violated the APA in the following ways: 
•  Failing to promulgate regulations by notice and comment in the Federal Register; 
•  Failing to use the APA’s formal adjudication process to decide disinterment requests; 
•  Violating their own regulations, namely DPAA Administrative Instruction 2310.01, DoD 
   Directive 2310.07, DoD Directive 1300.02, Army Regulation 638-2, and Army Field 
   Manual 4-20-65;                                                      
•  Arbitrarily and capriciously setting disinterment thresholds and denying the requests to 

   disinter X-1130 and X-1168;                                          
•  Failing to take actions required by law, namely recommending disinterment of Common 
   Grave 407, processing and returning remains from the other common graves at issue, 
   processing the request to disinter X-3629, and communicating with Plaintiffs.  
The Court takes each in turn.7                                            
        a.  Alleged failure to promulgate regulations and conduct adjudications 
   First,  Defendants’  regulations  are  excepted  from  the  APA’s  notice  and  comment 
rulemaking requirements, which do not apply “to the extent that there is involved—(1) a military 
or  foreign  affairs  function  of  the  United  States.”
5  U.S.C.  §  552
(a)(1).  Regulation  of,  for 

7 Plaintiffs also argue the Court cannot grant Defendants’ motion without a certified administrative record. Docket 
no. 64 at 41. This is incorrect, as the APA states “the court shall review the whole record or those parts of it cited by 
a party.” 5. U.S.C. § 706.                                                
example, the disinterment, processing, and identification of servicemembers from past conflicts 
is plainly a military function.                                           
   Second, the APA’s formal adjudication requirements only apply “when the governing 
statute specifies that an agency must conduct a ‘hearing on the record,’ as opposed to a statutory 
requirement of a ‘hearing’ or a ‘full hearing.’” Arwady Hand Truck Sales, Inc. v. Vander Werf,
507 F. Supp. 2d 754, 759
(S.D. Tex. 2007). Plaintiffs point to no such language in a relevant 
statute,  and  the  Court  is  aware  of  none.  Thus,  only  the  procedures  required  for  informal 
adjudications apply. While formal adjudications require the “trial-type procedures” of
5 U.S.C. 
§§ 554
, 556-557, “informal adjudications” require only the minimal requirements of
5 U.S.C. § 
555
. See Pension Ben. Guar. Corp. v. LTV Corp.,
496 U.S. 633, 655
(1990). DPAA must 
provide, under § 555, “[p]rompt notice” of denial “of a written application, petition, or other 
request of an interested person made in connection with any agency proceeding,” and that notice 
“shall be accompanied by a brief statement of the grounds for denial.”
5 U.S.C. § 555
(e). 
Plaintiffs do not allege violation of these informal adjudication requirements, and in any event 

they appear clearly met. Plaintiffs were allowed to participate in the process by submitting 
disinterment request, and Plaintiffs were provided denial notices (that included the grounds for 
denial) for all disinterment requests at issue that DPAA denied.          
        b.  Alleged failure to follow own regulations                   
   Next,  Plaintiffs  argue  Defendants  arbitrarily  and  capriciously  denied  the  request  to 
disinter X-1130 for comparison to First Lieutenant Nininger and the request to disinter X-618 for 
comparison to Brigadier General Fort. Defendants argue the “decisions not to disinter certain 
unknown remains at this time, deferral of recommendations regarding disinterment until relevant 
information is received, and methodical processing of disinterred remains for identification” are 
committed to agency discretion and unreviewable. Docket no. 68 at 14.     
   APA judicial review is not available if “agency action is committed to agency discretion 
by law,” 5 U.S.C.
5 U.S.C. § 701
(a), the test for which is whether a “court would have no 
meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil,
508 U.S. 182, 191
(1993). Plaintiffs do not dispute that the statutes give no meaningful standard 
for Defendants’ task of accounting for servicemembers of past conflicts, but they argue that the 
Court can review whether Defendants violated their own regulations.       
   An agency’s own regulations can provide the “law to apply.” Ellison v. Connor,
153 F.3d 
247, 251
(5th Cir. 1998). But Defendants argue the cited regulations—DPAA Administrative 
Instruction 2310.01, DoD Directive 2310.07, DoD Directive 1300.02, Army Regulation 638-2, 
and Army Field Manual 4-20-65—provide no meaningful standard for the Court to measure 
against Defendants’ actions.                                              
   The Court doubts that any of these regulations provide meaningful law to apply, nor can 

Plaintiffs show violation of any particular regulation. The closest Administrative Instruction 
2310.01 comes to providing meaningful standards are its statements that: the “goal for the time 
from receipt [of a disinterment request] to submission of the DPAA Director’s recommendation” 
is 150 days; family member requests “will be given high priority” compared to third-party or 
internal  disinterment  proposals;  and  requests  from  families  and  third  parties  cannot  be 
permanently deferred. Docket no. 31-1 at 165. Even if these statements gave law to apply, the 
most that can be shown, here, is that DPAA has exceeded its “goal” for some remains. DPAA 
has not permanently deferred any request.                                 
   Next, Plaintiffs point to the statement in DoD Directive 2310.07 that “[i]nformation 
pertaining  to  the  .  .  . efforts  to  locate,  recover,  and,  when  applicable,  identify  remains  of 
unaccounted-for DoD personnel . . . from past conflicts . . . will be provided to the primary next 
of  kin  (PNOK)[.]”  Docket  no.  63-1  at  41.  The  PCRB  has  communicated  information  to 
Plaintiffs. The record shows conversations at family updates, documents forwarded to Plaintiffs, 

responses  to  Plaintiffs’  letters,  and  phone  calls.  Plaintiffs  think  the  provided  information 
inadequate, but this directive does not give a standard against which to measure the adequacy of 
Defendants’ efforts.                                                      
   Third, Plaintiffs refer to three provisions in DoD Directive 1300.22: § 3(a), which states 
that remains “will be recovered, identified, and returned to their families as expeditiously as 
possible while maintaining the dignity, respect, and care of the deceased to the extent possible 
and  protecting  the  safety  of  the  living”;  §  3(c),  which  states  that  “the  movement  of  the 
deceased’s remains will be handled with the reverence, care, priority, and dignity befitting them 
and  their  circumstances”;  and  §  3(d),  which  states  that  the  remains  “will  be  continuously 

escorted . . . from the preparing mortuary to the funeral home.” Docket no. 63-1 at 65-66. None 
of these statements provide meaningful standards.                         
   Fourth,  Plaintiffs  refer  to  the  statement  in  Directive-type  Memorandum-16-003  that 
“DoD must have the scientific and technological ability and capacity to process the unknown 
remains for identification with 24 months after the date of disinterment.” Docket no. 63-2 at 5. 
Plaintiffs argue Kelder’s identification has taken longer than 24 months. But this memorandum 
took effect in July 2018, well after Kelder’s disinterment, and Kelder was identified within five 
months of disinterment. There are likely still outstanding bones of Kelder’s in the commingled 
remains being tested, but this memorandum does not state that every element of commingled 
remains  must  be  identified  and  returned  within  24  months.  Finally,  Plaintiffs  cite  Army 
Regulation 4-20-65, which was cancelled in 2014, and Army Regulation 638-2, which applies 
only  to  the  Army.  The  Army  is  not  responsible  for  disinterring  or  making  disinterment 
recommendations with respect to the remains at issue; DPAA is not part of the Army. Docket no. 
61 at 19.                                                                 

   Still, even if there were law to apply, the challenged final actions easily clear the arbitrary 
and capricious standard. When reviewing “agency decisions under the arbitrary and capricious 
standard, we cannot substitute our judgment or preferences for that of the agency. To affirm an 
agency's action, we need only find a rational explanation for how the  [agency] reached its 
decision.” Associated Builders & Contractors of Texas, Inc. v. Nat'l Labor Relations Bd.,
826 
F.3d 215, 224-25
(5th Cir. 2016) (citation omitted). “[T]here is a presumption that the agency's 
decision is valid, and the plaintiff has the burden to overcome that presumption by showing that 
the decision was erroneous.” Tex. Clinical Labs, Inc. v. Sebelius,
612 F.3d 771, 775
(5th Cir. 
2010).                                                                    

   Plaintiffs cannot meet this burden for any of its challenged decisions. As best the Court 
can tell, the challenged decisions are the use of disinterment thresholds and the denials of the 
requests to disinter X-1130 and X-168.8 First, no rational factfinder, under this standard, could 
find Defendants were irrational in denying the request to disinter X-1130. Plaintiffs quibble with 
certain  of  Defendants’  factual  statements  and  with  Defendants’  reliance  on  purportedly 
unreliable testimony. Docket no. 64 at 63. But the record is clear that Nininger’s case has 
received extensive attention, and the decision not to disinter X-1130—because of doubt over the 
location  of  Nininger’s  burial,  the  height  discrepancy  between  Nininger  and  X-1130,  and 


8 Plaintiffs also reference the decisions to disinter Common Graves 704 and 822. But Plaintiffs agree that these 
disinterment decisions are “reasonable” and appear not to challenge these decisions. Docket no. 64 at 42.  
concerns with the historic evidence—is rational. Defendants have detailed why they consider it 
unlikely that X-1130 is Nininger’s remains and Defendants have considered—and discounted—
all discrepancies and concerns Plaintiffs raise.                          
   Second, for similar reasons, Defendants’ denial of the request to disinter X-618 was 
rational. Defendants offer several reasons for the decision: the evidence that Fort was executed 

65 miles away from where X-618 was buried and the discrepancies in height, age, ancestry, and 
dental records between Fort and X-618. Again, Defendants have considered all facts Plaintiffs 
raise.                                                                    
   Third, Plaintiffs challenge the thresholds requiring, for example, identification of 60 
percent of persons associated with a common grave before disinterment. They argue these are 
arbitrary standards. But as Defendants note, DoD need only show its “reasons and policy choices 
satisfy minimum standards of rationality,” 10 Ring Precision, Inc. v. Jones,
722 F.3d 711, 723
(5th Cir. 2013), and it is “plainly reasonable for DoD to disinter respectfully buried remains of 
unknown only with a sufficient level of certainty that it will be able to identify those remains 

shortly after disinterment,” docket no. 68 at 21.                         
   Thus, even assuming Defendants’ actions warrant review, Plaintiffs cannot show any 
decision was arbitrary and capricious.                                    
        c.  Alleged failure to take actions required by law             
   Finally, Plaintiffs contend several failures to act—or delays in acting—on Defendants’ 
part violate the APA. Plaintiffs seek relief under
5 U.S.C. § 706
(1) to “compel agency action 
unlawfully withheld or unreasonably delayed.” “[I]n certain circumstances, agency inaction may 
be sufficiently final to make judicial review appropriate,” but this inaction must “mark the 
consummation of the agency’s decisionmaking process.” Patterson,
343 F. Supp. 3d at 651
. But 
§  706(1)  claims  “can proceed  only where a  plaintiff asserts that an  agency failed to  take  a 
discrete agency action that it is required to take.” Norton v. §. Utah Wilderness All., 542 U.S. □□□ 
64 (2004) (emphasis in original). 
    Here, Plaintiffs point to the following failures or delays: recommending disinterment of 
Common Grave 407; processing remains from Common Graves 704, 717, and 822; processing 
request to disinter X-3629; and communicating with Plaintiffs. None of these are discrete actions 
required by law. Further, the record shows that Defendants continue to progress in processing all 
disinterred remains, and Defendants recommended disinterment of Common Grave 407 on June 
28.  As  for communication  with  families,  Plaintiffs  can point to  no  discrete,  required  action 
Defendants have not taken. 
    Accordingly,  Defendants  are  granted  summary judgment  on  Plaintiffs’  APA  claims. 
Thus, without any substantive claim remaining, Plaintiffs’ claim for declaratory relief also fails. 
                              CONCLUSION 
    Accordingly, the Court GRANTS Defendants’  Motion for Summary Judgment (docket 
no. 61) and DENIES Plaintiffs’ Motion for Partial Summary Judgment (docket no. 65). 
    Defendants’  Motion to Exclude Expert Testimony (docket no.  55) is DISMISSED AS 
MOOT. 
    The Clerk is DIRECTED to enter judgment in favor of Defendants and against Plaintiffs. 
Plaintiffs shall take nothing by their claims. 
    SIGNED this 29th day of July, 2019. 

                                 \ 
                                 Me 
                                XAVIER RODRIGUEZ 
                                UNITED STATES DISTRICT  JUDGE 
                                    33