Varesponse

Case 4:11-cv-01992 Document 22
Filed in TXSD on 07/15/11 Page 1 of 21
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
SCOTT RAINEY, ET AL., Plaintiffs, vs. U.S. DEPARTMENT OF VETERANS AFFAIRS, ET AL., Defendants.
CIVIL ACTION NO. 4:11-cv-1992
ANSWER 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 by Plaintiffs Scott Rainey, the Veterans of Foreign Wars (VFW) District 4, the American Legion Post 586, and the National Memorial Ladies. FIRST DEFENSE The Court lacks subject matter jurisdiction and Plaintiffs have no cause of action against Defendants 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 to federal 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).
SECOND DEFENSE The Court lacks subject matter jurisdiction over Defendant U.S. Department of Veterans Affairs under 28 U.S.C. 1331. Section 1331 provides for federal subject matter jurisdiction in cases 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, 367 n.3 (5th Cir. 2005); Brown v. Nationsbank Corp., 188 F.3d 579, 590 (5th Cir. 1999). THIRD DEFENSE The 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 plead Plaintiffs 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 representational capacity 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 to violate VA policies by imposing their own religious views on the families of deceased Veterans who have expressed differing or no religious preferences. FOURTH DEFENSE The Court lacks subject matter jurisdiction because the allegations contained in the First Amended 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 at the 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).
FIFTH DEFENSE Should the Court determine that there is subject matter jurisdiction against Defendant Arleen Ocasio, then Defendant Arleen Ocasio pleads the defense of qualified immunity. SIXTH DEFENSE Defendants plead the statute of limitations to Plaintiffs unsubstantiated claims with regard to the removal of a Bible and a cross from the Houston National Cemetery (the Cemetery) chapel. SEVENTH DEFENSE Defendants 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 DEFENSE Defendants plead that the allegations within the First Amended Complaint concern private committal services for deceased Veterans, in which the Houston National Cemetery employees have attempted to honor the particular religious preferences and requests by deceased Veterans families by offering them the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and by not providing them with any religious or non-religious text or recitation when it is not desired and requested by the families. Plaintiffs assertion of a right to interject their own religious beliefs into the private committal services of others, fails to state a cause of action for which relief can be had because they are considered without compensation employees of the VA. NINTH DEFENSE In answer to the allegations contained within the Original Verified Complaint (Dkt. no.
1), which concern only Plaintiff Pastor Raineys desire to give a Christian prayer at a VA Memorial Day ceremony on May 30, 2011, Defendants aver that the allegations of the Original Verified Complaint are moot. On May 27, 2011, Defendants consented to allow Pastor Rainey to give his prayer as written. On May 30, 2011, Pastor Rainey delivered his prayer at the VA Memorial Day Service. TENTH DEFENSE In answer to the specific allegations contained in the First Amended Complaint, filed by Plaintiffs Scott Rainey, the VFW District 4, the American Legion Post 586, and the National Memorial Ladies, Defendants aver as follows: PRELIMINARY STATEMENT 1. The allegations contained in paragraph 1 of the First Amended Complaint are
conclusory and DENIED . Defendants deny that they are engaged in unlawful religious viewpoint discrimination against Plaintiffs. Defendants deny that they have banned certain religious words such as God and Jesus, censored the content of prayer, and banned religious speech and expression from burial rituals. Defendants deny that they have unlawfully enforced prior restraints on Plaintiffs religious speech and expression, and burdened Plaintiffs religious exercise. In every instance, Defendants have sought to honor and respect the religious preferences, if any, of the families of deceased Veterans during private committal services. 2. The allegations contained in paragraph 2 of the First Amended Complaint are
conclusory and are DENIED . Defendants deny that they have violated federal law, namely the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. Plaintiffs have disregarded the Governments role of protecting the interests of Veterans families from unwanted imposition of religious speech at the families private
commital services held at the Houston National Cemetery. JURISDICTION AND VENUE 3. The allegations contained in paragraph 3 of the First Amended Complaint,
concerning jurisdiction are DENIED . Defendants deny jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. 1983, because 42 U.S.C. 1983 provides no cause of action against the United States, its agencies, or federal employees regardless of their capacities. Section 1983 applies only to state officers acting under color of state law. It does not apply to federal officers acting under color of federal law. Meyer, 510 U.S. at 475; Resident Council of Allen Parkway Vill., 980 F.2d at 1053. Further, Defendant U.S. Department of Veterans Affairs DENIES jurisdiction under 28 U.S.C. 1331. Section 1331 provides for federal subject matter jurisdiction in cases against individual federal officers who violate the constitutional rights of others. Cronn, 150 F.3d at 541-542. 4. The allegations contained in paragraph 4 of the First Amended Complaint
concerning the issue of venue are ADMITTED . PARTIES 5. The allegations contained in paragraphs 5, 6, 7, and 8 of the First Amended
Complaint concerning the identities of Plaintiffs are ADMITTED . 6. The allegations contained in paragraphs 9 and 10 of the First Amended Complaint
are ADMITTED , except that the U.S. Department of Veterans Affairs is an executive agency of the United States government. PASTOR SCOTT RAINEY 7. The allegations contained in paragraphs 11 through 25 of the First Amended
Complaint are DENIED in that the VA Memorial Day ceremony was held on May 30, 2011 (and
not May 20, 2011 as alleged); the National Cemetery Council of Greater Houston assists in coordinating the Memorial Day ceremony with VAs National Cemetery Administration (NCA); Defendant Arleen Ocasio requested Pastor Raineys prayer be submitted for prior approval to ensure that it was nonpartisan, inclusive, and nonderogatory, consistent with agency policy for VA ceremonies; and the Original Verified Complaint (Dkt. no. 1) was filed hastily by Plaintiff without affording Defendants adequate time to formally respond to Plaintiffs demand. On May 27, 2011, Defendants communicated to the court that Pastor Raineys prayer was acceptable. Pastor Rainey delivered his proposed prayer on May 30, 2011; the above allegations are moot. 8. The allegations contained in paragraphs 26 through 30 of the First Amended
Complaint are ADMITTED , and show that Defendants were engaged in an investigation of the unsubstantiated rumors relating to the alleged removal of a Bible and closure of the Cemetery chapel. 9.
DENIED
The allegations contained in paragraph 31 of the First Amended Complaint are
for reason that Defendants Motion to Dismiss (Dkt. no. 9) concerned only the
allegations contained within the Original Verified Complaint which are moot; the Motion to Dismiss did not concern the new Plaintiffs and new allegations relating to activities at the Houston National Cemetery. 10. The allegations contained in paragraph 32 of the First Amended Complaint are
conclusory and DENIED . Cemetery officials and Defendant Arleen Ocasio have not discriminated against the private religious speech and expression of the VFW District 4, the American Legion Post 586, or the National Memorial Ladies. Defendants value and respect all Veterans and their families right to a committal service that honors their faith tradition, if any. With regard to the alleged removal of a Bible from the Cemetery chapel, Defendants deny that
any such action was taken by Defendant Ocasio. Defendants will show that a Bible, a cross, and a Star of David were displayed in the chapel for many years. In October 2009, prior to Defendant Ocasio becoming the Cemeterys Director, a complaint prompted the Cemetery to remove the Bible, the cross, and the Star of David from public view. These items are in storage within the chapel and are available upon a familys request for use in a committal service. With respect to allegations regarding the closure of the chapel, Defendants will prove that until September 2010, the chapel was open and frequently used as one of several locations for committal services. In September 2010, the Cemetery began a major construction project on the premises that involved the renovation of several buildings and the construction of new buildings. Due to the construction project, the chapel was closed because of fumes and noise. The chapel was then used as a temporary storage space for relocated items and for some meetings. Although construction is planned to continue until December 2012, arrangements were made to allow the chapel to reopen on July 5, 2011, and to remain open for use as a nondenominational place of prayer and contemplation, and as a location in which to hold committal services. 11. The allegations contained in paragraph 33 and 34 of the First Amended
Complaint are ADMITTED only as to the fact that there were certain email transmittals and a June 23, 2011 Liberty Institute demand letter consisting of false accusations, conclusory allegations, and unsupported claims. 12.
DENIED
to the extent that they state or imply that the Liberty Institute attempted in any
reasonable way to resolve matters prior to filing of the amended complaint. 13. The allegations contained in paragraph 36 of the First Amended Complaint are
DENIED
in so far as they fail to state that Defendants agreed that Pastor Rainey would be allowed
to deliver his prayer at the VA Memorial Day ceremony. 14. Defendants have no basis upon which to confirm or deny the allegations
contained in paragraph 37 of the First Amended Complaint concerning what Pastor Rainey would like to do with his time in the future, and this paragraph requires no response by Defendants. 15.
DENIED ,
unfounded, and conclusory, having no basis in fact. THE VETERANS OF FOREIGN WARS DISTRICT 4
16.
The allegations contained in paragraphs 39 through 41 of the First Amended
Complaint do not require a response because they are irrelevant to this litigation, to which the Veterans of Foreign Wars of the United States of America is not a party. 17.
ADMITTED .
The allegations contained in paragraph 42 concerning the identity of Plaintiff are
18.
PART .
The allegations contained in paragraph 43 are ADMITTED IN PART AND DENIED IN
Defendants ADMIT that families may work with private funeral homes to arrange military
funeral honors and may request the services of funeral honor guard teams. Defendants DENY that the VFW District 4 honor guard team serves in the capacity as a private volunteer burial team at the Houston National Cemetery. Defendants will prove that the members of VFW District 4 who wish to serve as military funeral honor guards at the Houston National Cemetery are registered VA volunteers, or without compensation employees of the VA, who are generally required to attend annual volunteer training organized by VA Voluntary Services. This training is held at the Cemetery and was most recently conducted on May 5, 2011. During this
training, all volunteers are provided with an Orientation and Training Handbook and sign sheets confirming that they have read and understood VAs policies, which include offering to families the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and not providing them with any religious or non-religious text or recitation when it is not specifically requested by the families. The volunteers were generally advised that they should make an effort to ensure that the military funeral honors performed respect the families religious preferences. 19. The allegations contained in paragraph 44 of the First Amended Complaint are
conclusory and DENIED . Defendants will prove that Arleen Ocasio first made inquiries into the process by which private funeral homes arranged for military funeral honors after she became aware that the VFW District 4 honor guard team leader was violating federal law and VA policy by soliciting and accepting payments from families for the rendition of military funeral honors while on federal property. Defendant Ocasio put a stop to this unlawful practice. 20. The allegations contained in paragraph 45 are DENIED for lack of sufficient
information to justify a belief therein. 21.

DENIED .
22.
DENIED .
The VFW District 4 honor guards serve at the Houston National Cemetery as registered
VA volunteers, or without compensation employees of the VA, who are subject to compliance with VA policies. Defendants will prove that on the morning of May 5, 2011, the VFW District 4 honor guards were at the cemetery to receive VA Voluntary Services training. Defendant Ocasio never stated or implied that the VFW District 4 honor guards prayer portion of
committal services could not be included, nor did she ever state or indicate that families of deceased Veterans needed to submit any prayers or requested rituals or recitations for her approval. Instead, she stated that the private committal services are for the families and should be reflective of the families preferences. She stated that families are encouraged to present any desired prayers or recitations for reading by funeral honor guards as part of the committal services. She explained that this encouragement for families to provide any specific requests is not made in an effort to proctor or monitor committal services, but is made so as to ensure that the families desires are met. Further, she emphasized that a familys request need not be in writing. 23.
DENIED .
Defendant Ocasio has never told anyone that the VFW District 4 honor guards were
prohibited from including prayer or religious speech in its ritual unless families submit the prayer or religious speech to her in writing prior to the committal services. Defendant Ocasio told the VA Voluntary Services trainees that they needed to ensure that their military funeral honors were reflective of the desires of the families of the Veterans being honored, that there is no do over for a committal service, and that no Veterans family should ever leave offended or unhappy with the services provided by the Cemetery staff or the registered VA volunteers. 24.
DENIED .
Defendants will prove that on May 19, 2011, Mr. Jose R. Henriquez worked on two
committal services with registered VA volunteer honor guards detailed through VFW District 4. Mr. Henriquez informed the VFW District 4 honor guard Commander prior to one of these committal services that, based on the familys specific request, military funeral honors rendered at that service should simply include the core military funeral honors and the Lords Prayer and
23rd Psalm. Defendants will prove that Mr. Henriquez has never told any funeral honor guards or anyone else not to mention the name of God or otherwise prevented prayers from being said in accordance with a familys stated desires. 25.
DENIED
generally for lack of sufficient information to justify a belief therein. Defendants
specifically deny ever having asked Plaintiffs to remove religious references from a prayer or religious ritual, regardless of whether families requested it. Defendants have only requested that the wishes of Veterans families be honored and respected. 26.
DENIED ,
in that Defendant Ocasio and other unnamed officials have never said that religious
speech or prayer is prohibited absent prior approval. Defendant Ocasio has only requested that the wishes of Veterans families be honored and respected. 27.
DENIED .
Defendants will prove that families are not required to provide a written request to the
Cemetery Director about committal service arrangements made through a funeral home for military funeral honors to be provided by the VFW District 4. Registered VA volunteers are subject to VAs policies, which include offering to families the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and not providing them with any religious or non-religious text or recitation when it is not specifically requested by the families. 28.
DENIED
for lack of sufficient information to justify a belief therein. Neither Defendant Ocasio or
any unnamed government official told the American Heritage Funeral Home that the VFW
District 4 honor guards were forbidden from including prayers or religious messages in its ritual unless the family submitted the prayer or religious message in writing to Defendant Ocasio for approval. 29.
DENIED .
Defendants do not request or require that committal service prayers or religious
messages be submitted in writing or otherwise to Director Ocasio, nor did Director Ocasio ever inform Mr. Larry Matthews or any other private funeral home employee that they could not advise families of the nature and elements of military funeral honors and the various prayers and religious elements that can be included as part of these honors. Defendants will prove that they did advise Mr. Matthews and others that, should a family wish to include a recitation in the service being planned, a request for its inclusion must, in accordance with VA policy, be initiated by the family and the family must then provide the specific text that they desire to be recited. Recitations are not to be presented to families by VA employees or registered VA honor guards to avoid imposing on them religious preferences that may not be desired. 30.
DENIED .
The Houston National Cemetery Honor Guard Guidelines (Guidelines) does not say
that the honor guards must delete all religious statements from their rituals. The Guidelines seek to ensure that the religious preferences, if any, of families of deceased Veterans are fully respected, and they specifically say that the honor guards may read scripture or a brief prayer if the family makes such a request to the honor guard team and the family does not provide its own clergy. See Guidelines, at paras. 7 and 8(a). 31.
DENIED .
The Guidelines 7 reflect that committal services are private in nature and VA
volunteer honor guards must respect the wishes and religious preferences of the families of deceased Veterans. If a family decides that it only wants to have clergy provide the service, which includes a reading of scripture and prayer, the familys preference should be respected. 32.
DENIED .
At Houston National Cemetery, the Guidelines 8.b. permits Plaintiffs to read religious
recitations at private committal services if the family of a deceased Veteran so chooses. Defendants believe that it should be the familys choice and decision what to have read in accordance with their faith tradition, if any, because it would be improper for others to impose their own religious preferences on a Veterans family, especially during this meaningful event. 33.
DENIED .
The Defendants do not monitor what is spoken at the committal services. VA
employees attend committal services to ensure that all aspects of the service are carried out safely and to the satisfaction of each family. This practice has been in place for many years at all VA national cemeteries. 34. The allegations contained in paragraphs 59 and 61 of the First Amended
Complaint are DENIED for lack of sufficient information to justify a belief therein. Defendants are unaware of this practice by Junior Vice Commander Nobleton Jones. 35.
DENIED
for lack of sufficient information to justify a belief therein. Defendants are unaware of
any government official who instructed Mr. Jones not to perform this practice. Upon request of the next of kin or authorized representative, provision of military funeral honors for an eligible beneficiary (service member or Veteran) consist of, at a minimum, the ceremonial folding and presentation of the American flag and the sounding of Taps. See 10 U.S.C. 1491(c).
THE AMERICAN LEGION POST 586 36. The allegations contained in paragraph 62 of the First Amended Complaint do not
require a response because they are irrelevant to this litigation, to which the American Legion is not a party. 37.
DENIED .
Defendants records indicate that the American Legion Post 586 honor guards have
provided military funeral honors on about 8 to 10 occasions at the Houston National Cemetery since the beginning of 2011. Prior to 2011, the American Legion Post 586 provided funeral honors at the Cemetery on an infrequent basis. Due to the infrequent nature of its participation, the American Legion Post 586 has not received formal volunteer training and has not performed funeral honors at the Cemetery as registered VA volunteers. Accordingly, the Guidelines are inapplicable to it. 38.
DENIED .
Defendants know of no governmental official who has ever told the American Legion
Post 586 honor guards that they could no longer include religious speech or prayer in their military funeral honors ritual unless it was first submitted to Director Ocasio in writing. In the spring of 2011, Ms. Ocasio mailed the Houston National Cemetery Honor Guard Guidelines to the American Legion Post 586 for their information. However, VA Voluntary Services cannot confirm that any member of the American Legion Post 586 has registered to provide military funeral honors at the Cemetery. Ms. Ocasio has never requested, reviewed, or censored any prayers or recitations from family members. 39.
DENIED
for a lack of sufficient information to justify a belief therein.
THE NATIONAL MEMORIAL LADIES 40. The allegations contained in paragraphs 66, 67, and 68 of the First Amended
Complaint do not require a response, but are ADMITTED . 41. The allegations contained in paragraphs 69 and 70 of the First Amended
Complaint are DENIED . The National Memorial Ladies are registered VA volunteers and are subject to compliance with VA policies. About a year ago, the Cemetery received a complaint from a family member expressing dismay that, although they had expressly requested that no religious symbol be included on the deceased Veterans grave marker, the military funeral honors included many references to the Christian religion. Subsequently, Defendant Ocasio asked the Memorial Ladies to endeavor to respect particular family members religious preferences, and to provide only general condolences without religious reference unless the Memorial Ladies were aware of a familys religious preference and expressions of a specific religious nature would be appropriate. 42.
DENIED
for lack of sufficient information to justify a belief therein. HOUSTON NATIONAL CEMETERY CHAPEL 43. The allegations contained in paragraphs 72 and 73 of the First Amended
Complaint are ADMITTED . 44. The allegations contained in paragraphs 74 and 75 of the First Amended
Complaint are DENIED . Defendants will prove that the Houston National Cemetery was built in 1965 by VA (then the Veterans Administration) and included a chapel intended for nondenominational use. The initial intent was that the chapel would be used for holding funerals. In 1973, National Cemetery Administration (then the National Cemetery Service) was created as part of VA, and this cemetery was placed under its responsibility. Under National Cemetery
Administration policy, formal funeral services were not intended to be held at VA national cemeteries, but rather brief, final committal services could be performed for families at VA cemeteries. For safety reasons, committal services at national cemeteries are typically held in small open structures (referred to as committal shelters) located away from the gravesite. Some formal funerals continued to be conducted in the Cemetery chapel (contrary to policy) until 2009 when the proper use of the chapel was reaffirmed to be for committal services only. There are three committal shelters on the property that are the primary locations for todays committal services at the Cemetery. For many years, a Bible, a cross, and a Star of David were displayed inside the chapel. In October 2009, prior to Defendant Ocasio becoming the Cemeterys Director, attendees of a service in the chapel complained about the appearance of government religious bias based on the display of those items. In response, National Cemetery Administration staff removed and stored those government-owned items, which may have been perceived as a denominational bias. These items are stored within the chapel and are available for placement and use in a committal service, if requested by a family. In September 2010, the National Cemetery Administration began a major construction project on the cemetery premises that involved the renovation of several buildings and the construction of new buildings. Due to construction fumes and noise, the chapel was closed. The chapel was then used as a temporary storage space for relocated items and for some meetings. Although construction is planned to continue until December 2012, arrangements were made to allow the chapel to reopen on July 5, 2011, and to remain open for use as a non-denominational place of prayer and contemplation, and as a location in which to hold committal services. Except for a period of one week in the spring of 2011, the chapel carillon at the Houston National Cemetery have been fully operational and continues to play each day.
PLAINTIFFS CAUSES OF ACTION COUNT ONE 45.

DENIED
in accordance with previous defenses and responses. 46. The allegations contained in paragraph 77 of the First Amended Complaint are
denied. Plaintiffs VFW District 4 and the National Memorial Ladies are private entities but engage in speech and expression on behalf of the Government when serving as registered VA volunteers at the Cemetery. 47.
DENIED .
Defendants do not discriminate between religious preferences and viewpoints.
Defendants honor and respect the religious preferences and rituals of the deceased Veterans and their families during private committal services. 48.
DENIED .
Defendants informed Plaintiffs of the need to respect the religious preferences and
rituals of deceased Veterans. 49.

DENIED
as vague. Defendants do not object to Plaintiffs speech as long as it respects and does
not offend the religious preferences and rituals of deceased Veterans families. 50. The allegations contained in paragraphs 81, 82, and 83 of the First Amended
Complaint are DENIED as vague and call for a legal conclusion. 51.
DENIED .
COUNT TWO 52. The allegations contained in paragraph 85 of the First Amended Complaint are
DENIED
in accordance with previous defenses and responses. 53. The allegations contained in paragraphs 86, 87, and 88 of the First Amended
Complaint are DENIED . COUNT THREE 54.

DENIED
in accordance with previous defenses and responses. 55. The allegations contained in paragraph 90 of the First Amended Complaint are
DENIED
as vague and call for a legal conclusion. 56. The allegations contained in paragraph 91 of the First Amended Complaint are
DENIED .
Defendants will prove that the non-denominational chapel was temporarily closed due
to a construction project on the premises. In every instance, Defendants have attempted to honor and respect the religious preferences, if any, of the families of deceased Veterans during the private committal services. 57.
DENIED .
Defendants requested that Plaintiffs VFW District 4 and the National Memorial Ladies
honor and respect the varying religious preferences, if any, of the families of deceased Veterans by making certain that their prayers and condolences were not offensive to the families. 58. The allegations contained in paragraphs 93 and 94 of the First Amended
Complaint are DENIED , except that for purposes of public ceremonies and special events held at VA national cemeteries, VA requires invocations or benedictions given at such ceremonies or events to be inclusive (respectful of religious and cultural diversity). All ceremonies and special events held at VA national cemeteries must have the fundamental purpose of honoring the military service of those who served or are serving in the Armed Forces of the United States, or persons who are interred in the cemetery where the ceremony or special event will take place.
59.
The allegations contained in paragraphs 95 and 97 of the First Amended
Complaint are DENIED and call for a legal conclusion. 60. The allegations contained in paragraphs 96 and 98 of the First Amended
Complaint are DENIED . COUNT FOUR 61.

DENIED
in accordance with previous denials and responses. 62. The allegations contained in paragraph 100 and 101 of the First Amended
Complaint are DENIED . 63.

DENIED
as vague and call for a legal conclusion. 64. The allegations contained in paragraph 103 of the First Amended Complaint are
DENIED
and call for a legal conclusion. 65. The allegations contained in paragraph 104 of the First Amended Complaint are
DENIED .
COUNT FIVE 66.

DENIED
in accordance with previous denials and responses. 67. The allegations contained in paragraphs 106, 107, and 108 of the First Amended
Complaint are DENIED as vague and call for a legal conclusion. 68.
DENIED .
DECLARATORY RELIEF 69. The allegations contained in paragraph 110 of the First Amended Complaint are
DENIED
in accordance with previous denials and responses. 70. The allegations contained in paragraph 111 of the First Amended Complaint are
DENIED .
Further, Plaintiffs should be denied all declaratory relief. PRELIMINARY AND PERMANENT INJUNCTION
71.
DENIED
in accordance with previous denials and responses. 72. The allegations contained in paragraph 113 of the First Amended Complaint
(including subparts a through t) are DENIED . Further, Plaintiffs should be denied all injunctive relief. NOMINAL DAMAGES 73.
DENIED
The allegations contained in paragraph 114 of the First Amended Complaint, are
in accordance with all previous defenses and responses. 74. Plaintiffs demand for damages in paragraph 115 of the First Amended Complaint
should be DENIED . Further, Plaintiffs should not be awarded any damages. ATTORNEYS FEES AND COSTS 75.
DENIED
in accordance with all previous defenses and responses. 76. The demands for attorneys fees and costs contained in paragraph 117 of the First
Amended Complaint should be DENIED . JURY TRIAL 77. The allegations contained in paragraph 118 of the First Amended Complaint do
not require a response by Defendants. PRAYER FOR RELIEF 78. The demands for relief contained in paragraphs 119, 120, 121, 122, 123, and 124
of the First Amended Complaint, which constitute Plaintiffs Prayer for Relief, should be
DENIED .
WHEREFORE, Defendants pray for judgment in their favor and against Plaintiffs at their cost and prejudice. Respectfully submitted, JOS ANGEL MORENO United States Attorney /s/ Fred T. Hinrichs __________________________ FRED T. HINRICHS Assistant United States Attorney Attorney in Charge Texas Bar No. 24003580 P.O. Box 61129 Houston, Texas 77208 Tel: (713) 567-9529 Fax: (713) 718-3303 Email: Fred.Hinrichs@usdoj.gov
CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing pleading was electronically served through the courts ECM/CF system, or otherwise mailed via First Class Mail, postage prepaid on this 15th day of July, 2011, to the following address of record:
Jeffrey C. Mateer LIBERTY INSTITUTE 2001 Plano Parkway, Suite 1600 Plano, TX 75075
/s/ Fred T. Hinrichs ___________________ Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

CIVIL ACTION NO. 4:11-cv-1992

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The allegations contained in paragraph 31 of the First Amended Complaint are

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The allegations contained in paragraph 35 of the First Amended Complaint are

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The allegations contained in paragraph 38 of the First Amended Complaint are

The allegations contained in paragraphs 39 through 41 of the First Amended

The allegations contained in paragraph 42 concerning the identity of Plaintiff are

The allegations contained in paragraph 43 are ADMITTED IN PART AND DENIED IN

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information to justify a belief therein. 21.

The allegations contained in paragraph 46 of the First Amended Complaint are

The allegations contained in paragraph 47 of the First Amended Complaint are

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The allegations contained in paragraph 48 of the First Amended Complaint are

The allegations contained in paragraph 49 of the First Amended Complaint are

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The allegations contained in paragraph 50 of the First Amended Complaint are

generally for lack of sufficient information to justify a belief therein. Defendants

The allegations contained in paragraph 51 of the First Amended Complaint are

The allegations contained in paragraph 52 of the First Amended Complaint are

The allegations contained in paragraph 53 of the First Amended Complaint are

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The allegations contained in paragraph 54 of the First Amended Complaint are

Defendants do not request or require that committal service prayers or religious

The allegations contained in paragraph 55 of the First Amended Complaint are

The allegations contained in paragraph 56 of the First Amended Complaint are

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The allegations contained in paragraph 57 of the First Amended Complaint are

The allegations contained in paragraph 58 of the First Amended Complaint are

The Defendants do not monitor what is spoken at the committal services. VA

The allegations contained in paragraph 60 of the First Amended Complaint are

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The allegations contained in paragraph 63 of the First Amended Complaint are

The allegations contained in paragraph 64 of the First Amended Complaint are

The allegations contained in paragraph 65 of the First Amended Complaint are

for a lack of sufficient information to justify a belief therein.

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The allegations contained in paragraph 71 of the First Amended Complaint are

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