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Ask the Lawyer: Families may have claim due to mishandled graves

Lawyer Mathew B. Tully answers your questions.

Q. I’ve read about the mislabeled graves and mishandled remains at Arlington National Cemetery. What can I do if my relatives’ remains or markers were subject to these errors?

The families of many deceased service members are asking the same question now that a recent Senate report has made revelations regarding up to 6,600 graves at Arlington.

A host of problems were cited, including unmarked and mislabeled graves, shallow graves, bodies buried on top of one another and ashes discarded instead of being buried.

The government is typically protected from any sort of claim under what is called sovereign immunity, which states that the government is immune from civil suit or criminal prosecution unless it waives immunity. In the U.S., there is a limited waiver of immunity under the Federal Tort Claims Act, which allows private parties to sue the U.S. for wrongs committed on behalf of a person representing the government.

The FTCA exempts certain claims, including those which involve the use of discretion. This means that if the claim is in response to an act that involved judgment rather than a specific directive, the government is exempt from liability. The exemption does not apply, however, if federal law governs the conduct in question.

A legal claim based on the recent Arlington controversy would center on the question of whether the government can be held liable for the actions of Arlington employees.

To answer that, two additional determinations have to be made: Were the duties of cemetery workers discretionary? And do any federal laws require specific conduct regarding graves at Arlington?

The Army’s regulations for operations in national cemeteries state that graves must be correctly marked. Past court decisions have ruled that those regulations may be considered discretionary, and thus not subject to an FTCA claim.

However, the U.S. Code — the canon of federal law — clearly states that gravesites at Arlington must be marked with an appropriate marker, bearing the name of the person buried and the grave number.

Even if an FTCA claim is not viable under the Army’s discretionary regulations for national cemetery operations, the family of a person incorrectly interred at Arlington could potentially make an FTCA claim for emotional damages under that federal law.

I suggest you contact an attorney if you believe, or have been told, that your relatives’ remains or graves were subject to the errors at Arlington National Cemetery.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.