The Lost Cause

The United States District Court for the District of Columbia (Judge Howell) dismissed a case brought challenging the renaming of a monument in Arlington National Cemetery

In relevant part, the Report concluded that the Confederate Memorial (the “Memorial”), erected in 1914 in Section 16 of the Arlington National Cemetery (“ANC”), was a monument “within its remit” that “offers a nostalgic, mythologized version of the Confederacy, including highly sanitized depictions of slavery.” Id. at 15. After “explor[ing] alternatives . . . to removal,” such as contextualizing the Memorial, and examining whether removal would cause “any disturbance to adjacent graves,” the Commission recommended that “[t]he statute atop of the monument” and “[a]ll bronze elements on the monument” be removed, but “preferably leaving the granite base and foundation in place to minimize risk of inadvertent disturbance to graves.” Id. at 16.

Holding

Under NDAA § 370, the Naming Commission is required, among other things, to “develop a plan” to remove “names, symbols, displays, monuments, and paraphernalia to assets of the Department of Defense that commemorate the Confederate States of America or any person who served voluntarily with the Confederate States of America,” and “present a briefing and written report” outlining its plan to Congress. NDAA § 370(c)(4), (g). At least 90 days after this briefing and written report, but “[n]ot later than three years after the date of the enactment of this Act,” “the Secretary of Defense” is required to “implement the plan . . . and remove all [such] names, symbols, displays, monuments, and paraphernalia.” Id. § 370(a), (g).

On September 19, 2022, the Naming Commission published the third and final part of its report to Congress, which concluded, inter alia, that the Confederate Memorial at ANC was a monument “within its remit” and needed to be removed. Final Report at 16. On October 6, 2022, Secretary of Defense Lloyd Austin issued a memorandum “concur[ring] with the Naming Commission’s recommendations,” and “committ[ing] to implementing all of the Commission’s recommendations as soon as possible”—precisely what NDAA § 370 instructed him to do. His actions were thus neither arbitrary or capricious nor in excess of his statutory duty.

According, for the foregoing reasons, defendants’ Motions to Dismiss, ECF Nos. 10, 29, are GRANTED, and plaintiffs’ Motion for a Preliminary Injunction, ECF No. 27, is DENIED AS MOOT

(Mike Frisch)