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varesponse

varesponse

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Published by lindsay_wise6324

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Categories:Types, Business/Law
Published by: lindsay_wise6324 on Jul 18, 2011
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07/10/2013

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONSCOTT RAINEY, ET AL., §§
 Plaintiffs,
§CIVIL ACTION NO.§vs.§ 4:11-cv-1992§U.S. DEPARTMENT OF VETERANS§AFFAIRS, ET AL.,§§ 
 Defendants.
§§A N S W E R Defendants, U.S. Department of Veterans Affairs and Arleen Ocasio, submit this answer in response to the allegations of the Original Verified Complaint (Dkt. no. 1) filed by Plaintiff Scott Rainey, and the allegations of the First Amended Complaint (Dkt. no. 10) filed byPlaintiffs Scott Rainey, the Veterans of Foreign Wars (VFW) District 4, the American LegionPost 586, and the National Memorial Ladies.FIRST DEFENSEThe Court lacks subject matter jurisdiction and Plaintiffs have no cause of action againstDefendants U.S. Department of Veterans Affairs and Arleen Ocasio, under 42 U.S.C. § 1983.Section 1983 applies
only
to
 state officers acting under color of state law
. It does not apply tofederal officers acting under color of federal law.
 FDIC v. Meyer 
, 510 U.S. 471, 475 (1994)
; Resident Council of Allen Parkway Vill. v. HUD
, 980 F.2d 1043, 1053 (5th Cir. 1993),
cert.denied 
,
 
114 S. Ct. 75 (1993).
Case 4:11-cv-01992 Document 22 Filed in TXSD on 07/15/11 Page 1 of 21
 
SECOND DEFENSEThe Court lacks subject matter jurisdiction over Defendant U.S. Department of VeteransAffairs under 28 U.S.C. § 1331. Section 1331 provides for federal subject matter jurisdiction incases against
individual 
federal officers who violate the constitutional rights of others.
Cronn v. Buffington
, 150 F.3d 538, 541-542 (5th Cir. 1998). It does not provide federal subject matter  jurisdiction against a federal agency or the United States.
 Izen v. Catalina,
398 F.3d 363, 367n.3 (5th Cir. 2005);
 Brown v. Nationsbank Corp
., 188 F.3d 579, 590 (5th Cir. 1999).THIRD DEFENSEThe U.S. Department of Veterans Affairs (VA) values and respects all Veterans and their families’ right to a committal service that honors their faith tradition, if any. Defendants pleadPlaintiffs’ lack standing to interfere with Defendants’ efforts to honor and respect the religious preferences and rituals, if any, of the families of deceased Veterans in conjunction with their  private committal services. Moreover, Plaintiffs’ lack standing to bring suit in a representationalcapacity on behalf of their members who, while acting as registered VA volunteers (
i.e.
,“without compensation employees” of VA) who have agreed to abide by VA policies, seek toviolate VA policies by imposing their own religious views on the families of deceased Veteranswho have expressed differing or no religious preferences.FOURTH DEFENSEThe Court lacks subject matter jurisdiction because the allegations contained in the FirstAmended Complaint contain new Plaintiffs and new claims that do not “relate back” under Fed.R. Civ. P. 15(c) to the factual allegations of the Original Verified Complaint that were moot atthe time of filing of the First Amended Complaint.
Summit Office Park, Inc. v. U.S. Steel Corp.
,639 F.2d 1278, 1282 (5th Cir. 1968);
Williams v. United States
, 405 F.2d 234, 236 (5th Cir.1968).
Case 4:11-cv-01992 Document 22 Filed in TXSD on 07/15/11 Page 2 of 21
 
FIFTH DEFENSEShould the Court determine that there is subject matter jurisdiction against DefendantArleen Ocasio, then Defendant Arleen Ocasio pleads the defense of qualified immunity.SIXTH DEFENSEDefendants plead the statute of limitations to Plaintiffs’ unsubstantiated claims withregard to the removal of a Bible and a cross from the Houston National Cemetery (the Cemetery)chapel.SEVENTH DEFENSEDefendants plead lack of service of process, and insufficiency of service of process under Fed. R. Civ. P. 12(b)(4), 12(b)(5). Defendants have not been served in accordance with Fed. R.Civ. P. 4(i).EIGHTH DEFENSEDefendants plead that the allegations within the First Amended Complaint concern private committal services for deceased Veterans, in which the Houston National Cemeteryemployees have attempted to honor the particular religious preferences and requests by deceasedVeterans’ families by offering them the option of reciting at the committal services any religiousor non-religious text or recitation specifically requested by the families, and by not providingthem with any religious or non-religious text or recitation when it is not desired and requested bythe families. Plaintiffs’ assertion of a right to interject their own religious beliefs into the privatecommittal services of others, fails to state a cause of action for which relief can be had becausethey are considered “without compensation employees” of the VA. NINTH DEFENSEIn answer to the allegations contained within the Original Verified Complaint (Dkt. no.
Case 4:11-cv-01992 Document 22 Filed in TXSD on 07/15/11 Page 3 of 21

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