In
Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, Oct. 23, 2018), a Texas federal district court refused to dismiss substantive and procedural due process, and free exercise and RFRA claims by the families of seven American Army service members who died in the Philippines in World War II. The families sought recovery of the remains of their veterans so they can be properly buried. The remains are interred as "Unknowns" in the Manila American Cemetery, but the families believe that they can now identify in which of the Unknowns' graves the seven service members are buried. The court said in part:
Plaintiffs allege that the government’s refusal to return allegedly identified remains to the appropriate families for burial “shocks the conscience.” ... 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.... At this stage, the Court finds that Plaintiffs sufficiently allege a substantive due process violation....
[G]iven 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.....
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.... 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
