Motion to dismiss filed in lawsuit involving soldiers’ remains that were left behind

NORTH KINGSTOWN, R.I. (WPRI) — The federal government filed a motion to dismiss a lawsuit filed by the descendants of seven soldiers, including a North Kingstown man who’s been fighting for decades with a government agency assigned with recovering and identifying missing remains of military personnel.

John Patterson and the other six plaintiffs filed the lawsuit in May, naming a number of entities, but the filing aims most of the blame at the Defense POW/MIA Accounting Agency (DPAA).

The agency has an annual budget of more than $110 million to “locate, recover and identify” remains.

The lawsuit alleges the DPAA “failures and inaction” are to blame for denying multiple requests from the plaintiffs.

In its motion to dismiss filed in the Western District of Texas, the government argued the DPAA has the power to choose which recoveries make the most sense, writing, “Discretionary choices are inherent to the exercise of DPAA’s mission.”

The plaintiffs’ attorney Benoit Letendre told Target 12 he disagrees with the government’s motion and will be filing a response soon.

“It is unfortunate that these families have to resort to a lawsuit to sue for relief the government could provide immediately,” Letendre said.

Patterson’s uncle, Lt. Alexander “Sandy” Nininger was the nation’s first World War II Medal of Honor recipient, who volunteered for a furious battle in the Philippines only weeks into the war.

But more than seven decades later, his remains are believed to be buried in the Manilla American Cemetery, despite Patterson’s effort.

All the plaintiffs can document the numbered grave where they suspect their loved ones are interred.

Texas resident John Eakin filed a similar lawsuit in the same federal district in 2012 to force the recovery of the remains of his cousin.

The government also filed a motion to dismiss in that case, but Eakin eventually won. Two years after the lawsuit was filed, Private Arthur Kelder was disinterred from the Manilla cemetery and brought home.

The U.S. Department of Justice has not returned a request for comment on the current lawsuit.

Letendre said he is confident the court will allow him to present the plaintiffs’ case.

Send tips to Target 12 Investigator Walt Buteau at wbuteau@wpri.com and follow him on Twitter @wbuteau