C Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 1 of 72 Page ID #:48

1; ARK D. ROSENBAUM, SBN 59940

osenbaum@aclu-sc.org

2 CLU FOUNDATION OF SOUTHERN

ALIFORNIA

3 1313 W. 8th Street os Angeles, CA 90017

'"'UN - 8 2011

4 T: (213) 977-5220, F: (213) 417-2220

CEum~""r1!~~)CJ: ',-,~!r'~i:A

5 AURENCE H. TRIBE, SBN 39441

.--I __~L=~~~==,~,::_c_~ _,,__

ribe@law.harvard.edu

6

fVARD LAW SCHOOL*

auser 420, 1575 Massachusetts Ave. RONALD L. OLSON, SBN 44597

7 ambridge, MA 02138

Ron.Olson@mto.com

: (617) ~95-1767

MUNGER,'1'OLLES & OLSON LLP

8
ARY L. BLASI, SBN 70190

355 South Grand Avenue, 35th FI, Los Angeles CA 90071-1560

9 lasila2law.uc1a.edu

T: (213) 683-9100, F: (213) 683-5111

CLA SCHOOL OF LAW*

10 05 Hilgard Avenue

JOHN C. ULIN, SBN 165524

os Angeles, California 90024

John. Ulin@aporter.com

11 : (310)206-9431,F: (310)206-1234 ARNOLD &J>ORTER, LLP

777 South Fi~eroa Street

12

OS E. HARTSTON, SBN 186471

artstonla2innercitylaw .org_

Los Angeles, CA 90017 T: (213) 243-4228, F: (213) 243-4199

13

R CITY LAW CENTER

1309 East Seventh Street

*for identification purposes only

14 os Angeles, CA 90021 : (213) 891-2880. F: (213) 891-2888 (Additional counsel listed on next

15
ttorneys for Plaintiffs

page)

16

17

UNITED STATES DISTRICT COURT

18

6 FOR THE CENTRAL DISTFfrVcr t~0<lf6r~

19 REGORY VALENTINI, ADRIAN ORARU, JANE DOE, and CHRIS
20 OMINE, on behalf of themselves and 11 those similarly situate~ VIETNAM
21 ETERANS OF AMERIL1-h~$f AROLINA WINSTON BAKK1E,
22 Plaintiffs,
23
vs.
24
RIC SHINSEKI, in his official 25 apacity, Secretary, Dej)~ent of
eterans Affairs; DONNA M. BEITER, 26 'n her official capacity, Director, VA
eater Los Angeles Healthcare System,
27
Defendants.
28~--------------------------

CASE NO.: CLASS ACTION COMPLAINT FOR INJUNCTIVE, DECLARATORYJAND MANDAMUS RELIEF

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 2 of 72 Page ID #:49

1 Additional Counsel

2 PETERELIASBERG, SBN 189110
~eliasberg@aclu-sc.ol"g
3 DAVID B.'"SAPP, SBN 264464
ds~pp@aclu-sc.org
4 ACLUFOUNDATION OF SOUTHERN CALIFORNIA
5 1313 W. 8th Street Los Angeles, CA 90017
6 T: (213) 977-5220, F: (213) 417-2220

7 MELISSA A. TYNER, SBN 269649 mtyner@innercitylaw.org
8 EL1ZAB'ETH HAMAN KUGLER, SBN 273928 EKuglt~r@innercitylaw .org
9 ADAM MURRAY, SBN 199430
amurray@innercitylaw.orK 10 INNER CITY LAW CENTER
1309 East Seventh Street 11 Los Angeles CA 90021
T: (213) 891:2880. F: (213) 891-2888
12 JAMES J. FINSTEN, SBN 234999
13 James.Finsten~~f~rer.com JACOB K. PO AN, SBN 262261
14 Jacob.Poorman8¥t¥orter.com ARNOLD & P ER, LLP
y 15 777 South Fig!:J:eroa Street Los An eles, CA 90017 16 T: (213 243-4228, F: (213) 243-4199

17

JONATHAN MASSEY
jmassey~massey~ail.com

18 Pro Hac ice aP!l: ication pending

MASSEY & GA L LLP

19 1325 G S1. NW, Suite 500

Washington, D.C. 20005

20 T: (202) 652-4511, F: (312) 379-0467

21

LEONARD GAIL
~ail~mas~eygail.com

22 ro ac Vzce
MASSEY & GAIL LLP

23 50 East Washin£on S1., Suite 400 Chica~o IL 60 2

24 T: (31 )'283-1590, OF: (312) 379-0467

25

26

27

28

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 3 of 72 Page ID #:50

1 The following allegations are based on information and belief, unless otherwise

2 specified:

3

4

INTRODUCTION

5

1. No veteran entered military service severely mentally disabled and

6 homeless. We, as a people, owe our 'security and the preservation of our most

7 cherished values to our military service members and our veterans, who serve our

8 nation not for remuneration or glory, but out of fealty to honor, duty, and sacrifice.

9 One horrific consequence of war is that it exacts heavy and lifelong consequences on

10 the young men and women who made lofty commitments on our behalf: many return

11 suffering from physically invisible wounds of mental illness, Post Traumatic Stress

12 Disorder (PTSD), or brain traumas. For countless veterans, military service has

13 rendered them unable to resume their civilian lives, sustain their family relationships,

14 hold down jobs or continue their educations, or even to maintain a permanent

15 residence.

16

2. In March 2009, President Obama stated as to our veterans: "These

17 heroes have a home. It's the country they served, the United States of America, and

18 until we reach a day when not a single veteran sleeps on our nation's streets, our

19 work remains unfinished." But for an estimated 107,000 homeless veterans

20 nationwide, conservatively 8,200 (or 8 percent) of whom live in the Greater Los 21 Angeles area,l these fine words of a promised home remain aspirational rhetoric, not

22 the hard truths of their daily lives.

23

3. Many veterans who entered military service with sound bodies and

24 minds return to civilian life bearing scars both visible and invisible. The invisible

25 scars include PTSD and other mental disorders either caused or aggravated by their

26

1 The U.S. Department of Veterans Affairs (DVA) is the source ofthese estimates, which

are conservative and likely undercount the number ofhomeless veterans nationally and in the

27 Greater Los Angeles area. Numerous researchers, advocates, and local officials have argued that

DVA's estimates are inaccurately low, and other estimates place the number ofhomeless veterans

28 in Los Angeles at 20,000.

1

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 4 of 72 Page ID #:51

1 expenences. An incontrovertible body of research has established the close causal

2 and mutually reinforcing interrelationships between severe mental disabilities and

3 chronic homelessness. Over the past decade or more, numerous scientific studies

4 have demonstrated, consistent with common sense, that homeless individuals with

5 severe mental disorders and/or addiction disease resulting from those disorders can

6 meaningfully access and benefit from medical and mental health services only after

7 they are stabilized in stable and permanent housing connected to appropriate services

8 and support - generally referred to as "permanent supportive housing."

9

4. In fact, research has confirmed that the only way that individuals

10 suffering from psychiatric conditions such as PTSD, brain trauma, paranoid

11 schizophrenia, and bipolar disorder consistently are able to meaningfully access and

12 benefit from medical and psychiatric services is when they first permanently reside

13 in appropriate supportive housing. Moreover, absent such housing, these conditions

14 worsen, leading to the creation of additional problems impairing the capacity of these

15 individuals to conduct everyday life. Homelessness itself exposes veterans to further

16 trauma that itself can both cause and aggravate PTSD and other disorders. For

17 veterans with severe mental disabilities incurred as a result of their service to this

18 country, effective treatment requires the stability and regularity afforded by

19 permanent housing readily accessible to ongoing comprehensive care and supportive

. 20 servIces.

21

5. The U.S. Department of Veterans Affairs (DVA) has acknowledged

22 these conclusions, stating, for example, in a supplement to a 2009 report to Congress

23 on homelessness: "For the large percentage of veterans with disabilities, permanent

24 supportive housing would be effective in helping them achieve long-term stability."

25 Nonetheless, DVA and its constituent healthcare systems do not systematically

26 utilize permanent supportive housing to ensure that severely disabled veterans have

27 the stability and support they need to meaningfully access the medical treatment and

28 other services for which they are otherwise eligible.

2

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 5 of 72 Page ID #:52

1

6. Los Angeles is the homeless veterans capital of the United States. This

2 is true despite the fact that the focal point for the VA Greater Los Angeles

3 Healthcare System ("VA GLA") is the West Los Angeles Medical Center &

4 Community Living Center campus ("WLA Campus"), a 387-acre parcel located five·

5 miles from the Pacific Ocean in Los Angeles. This land was donated in 1888 to the

6 predecessor body to DVA for the specific purpose of establishing and permanently

7 maintaining a soldier's home for disabled war veterans on that land. For some 80

8 years, DVA's predecessors operated a Pacific Branch Soldier's Home at this site in

9 conformity with the 1888 deed, which provided a permanent home for tens of

10 thousands of disabled veterans who resided on the campus and were able to access

11 necessary medical and therapeutic services available there.

12

7. Beginning in the 1960s and 1970s, however, DVA's predecessor ceased

13 accepting new residents at the WLA Campus, and structures dedicated to permanent

14 housing were repurposed or fell into disuse and became badly in need of repair and

15 renovation. All new construction and renovation projects were focused on

16 expanding medical and short-term treatment facilities. There are today more than

17 100 buildings on the WLA Campus, many vacant, closed, or underutilized. In

18 contrast to what once existed, with the exception of geriatric nursing beds, no

19 permanent housing is available to veterans on the WLA Campus.

20

8. The VA GLA system, including the WLA Campus, does not provide

21 appropriate care to all veterans, because it has been intentionally designed so that the

22 most severely disabled veterans cannot meaningfully access the medical, mental

23 health, and residential care services to which they are entitled under DVA's medical

24 benefits program. Nor does VA GLA make reasonable accommodations for the

25 disabilities suffered by these veterans so that they can access the services provided

26 through DVA's medical benefits program on the same terms as veterans who are not

27 disabled or who suffer different disabilities. VA GLA does not offer permanent

28 housing for any disabled veterans on the WLA Campus, including homeless veterans

3

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 6 of 72 Page ID #:53

1 who suffer from severe mental disabilities or brain injuries that render them unable

2 to obtain the treatment and care they desperately need without stable housing.

3

9. Plaintiffs in this case include severely disabled veterans who suffer from

4 mental disabilities and/or brain injuries and, as a result, are homeless and cannot

5 access necessary medical and mental health treatment they require to have a chance

6 at leading the normal life that was theirs before they began military service.

7

10. Greg Valentini is an Army veteran who served in Afghanistan as part of

8 Operation Enduring Freedom (OEF) and in Iraq as part of Operation Iraqi Freedom

9 (OIF). His unit, the 101st Airborne Division, participated in the initial invasion of

10 Afghanistan in 2001 and the assault on Tora Bora intended to capture Osama bin

11 Laden and other senior al Qaeda and Taliban leaders. His unit also was part of the

12 initial invasion force in Iraq in 2003 and saw heavy combat in Karbala. While in

13 Afghanistan and Iraq, Mr. Valentini witnessed numerous fellow soldiers and

14 civilians die and was himself regularly in great peril under heavy fire. Upon his

15 return to the United States following his discharge, Mr. Valentini began experiencing

16 symptoms of what was later diagnosed as a severe case ofPTSD. He was constantly

17 on alert and unable to concentrate on basic details of everyday life, he had graphic

18 nightmares about things he witnessed during his wartime service, and he began to

19 think about suicide as a way to escape the constant stress of feeling that he never left

20 the combat zone. Mr. Valentini began self-medicating himself with

21 methamphetamine to cope with the recurring violent thoughts and stress. Eventually,

22 Mr. Valentini became homeless. When he went to the WLA Campus for help, he

23 was briefly housed in a short-term treatment program, but was discharged and

24 returned to the street. He has now been sporadically homeless for several years and

25 requires a safe, secure, and stable residence in order to meaningfully access

26 necessary treatment for his mental disabilities.

27

11. Adrian Moram is a Marine veteran who was deployed to Iraq as part of

28 the initial invasion force in OIF. While he was stationed in Karbala following the

4

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 7 of 72 Page ID #:54

1 initial invasion, he always had to remain "on alert" and needed eyes in the back of

2 his head, because of the constant threat he and his comrades faced. In contrast to the

3 initial invasion, when he knew who the enemy was, during this period he could not

4 interact with civilians without worrying that he would be attacked. He also was

5 exposed to a chemical without chemical warfare gear while he was in Iraq.

6 Following his discharge, he experienced a violent seizure and developed painful

7 boils on his groin, back, and arms. Mr. Moram recalls going "schizo" when he

8 returned to his home in Philadelphia, causing him to destroy his mother's living

9 room and to have the impulse to kill her. He thereafter lived in a car for several

10 months. After other violent incidents, Mr. Moram eventually came to Los Angeles,

11 where he was homeless and spent his days and nights marching up and down

12 Wilshire Boulevard. When he went to the WLA Campus and sought residential

13 services, he was housed at a temporary shelter in a room with three other men and

14 was discharged when he assaulted another resident. He was thereafter arrested in

15 Santa Monica and charged with making a criminal threat. As a result of his mental

16 disability, Mr. Moram is at times overcome by strong impulses and often is not able

17 to understand why he behaves as he does. He requires a safe, secure, and stable

18 residence accessible to treatment for his mental disabilities.

19

12. Jane Doe2 is an Army veteran who completed Advanced Individual

20 Training in Radio Communications at Fort Dix, New Jersey in 1974. While serving

21 in the military, she experienced several sexual assaults. VA GLA psychiatrists have

22 diagnosed Ms. Doe with PTSD secondary to military sexual trauma. She suffers

23 frequent flashbacks and nightmares and has been unable to secure or maintain a job

24 as a consequence of her mental disabilities. She has been homeless for many years.

25
2 Jane Doe has been the victim of several sexual assaults and is currently suffering extreme 26 PTSD symptoms, such that public disclosure of her trauma may compound and exacerbate her
symptoms, and she is currently seeking medical, mental health and other services and benefits from 27 DVA and consequently fears retaliation. For these and other reasons, a pseudonym is used to 28 protect her identity and to protect her from harm. Plaintiffs have filed an application seeking
permission to allow Ms. Doe to proceed under a pseudonym concurrently with this Complaint.

5

( Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 8 of 72 Page ID #:55

1 Ms. Doe requires a safe, secure, and stable residence to access appropriate treatment

2 for her mental disabilities.

3

13. Chris Romine is an Army veteran who was deployed to Iraq in 2003 as

4 part of the initial invasion force for OIF. His duties involved escorting convoys, and

5 he witnessed two close friends die during these operations. He saw one friend get

6 crushed by a vehicle and the other bum to death. Following his discharge, he had

7 difficulty adjusting to civilian life as a result of what was later diagnosed as PTSD

8 and re-enlisted in the Army. He was subsequently sent to Iraq again. In addition to

9 convoy protection and the constant heightened vigilance that it required, his unit

10 responded to roadside bomb attacks on U.S. forces, which required him to regularly

11 witness the gruesome consequences of roadside bomb attacks on U.S. soldiers. Mr.

12 Romine turned to illicit drugs to self-medicate his untreated PTSD, and, upon his

13 return to the United States following his second deployment, he became homeless

14 and lived on the streets of Santa Monica and Los Angeles. Since that time, he has

15 tried to obtain housing and services through nearly every facility available at the

16 WLA Campus, but he has not been able to obtain pennanent housing. Although he

17 is currently in a transitional housing program, Mr. Romine requires a safe, secure,

18 and stableresidence in order to meaningfully access necessary treatment for his

19 mental disabilities and resulting substance abuse disorder.

20

14. Plaintiffs and other similarly situated veterans are being denied

21 meaningful access to the medical, mental health, and other services offered by VA

22 GLA, solely by virtue of their disabilities, which represents unlawful discrimination

23 under Section 504 of the Rehabilitation Act of 1973. Because pennanent supportive

24 housing is the only approach that consistently allows individuals like Plaintiffs who

25 suffer from serious mental disabilities meaningful access to the medical, mental

26 health, and other services to which they are entitled by virtue of their service to this

27 country, VA GLA is obligated to provide pennanent supportive housing to Plaintiffs

28 and other homeless veterans suffering from serious mental disabilities as a

6

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 9 of 72 Page ID #:56

1 reasonable accommodation for their disabilities.

2

15. For seriously disabled veterans in the Los Angeles area, permanent

3 supportive housing is an especially reasonable accommodation because of the

4 availability of the WLA Campus, which DVA owns because private citizens donated

5 the land to DVA's predecessor in 1888 for the express purpose of establishing and

6 permanently maintaining housing for disabled veterans. The WLA campus has

7 numerous vacant and underutilized buildings that could be used specifically for that

8 purpose. Such a use would be fully consistent with the intent of the individuals who

9 donated the land to the federal government in 1888 for the purpose of establishing

10 and permanently maintaining a home for disabled veterans.

11

16. The donation of the land on which the WLA Campus now sits created a

12 charitable trust, under which DVA, as the successor trustee, is obligated to use the

13 land only for purposes that directly contribute to the public purpose for which the

14 land was donated. Although VA GLA does offer medical care and residential care

15 on the WLA Campus, it has misappropriated a substantial portion of the land for uses

16 that are in no way related to housing or caring for veterans. In lieu of the permanent

17 housing that once operated on the WLA Campus, numerous commercial and other

18 non-DVA programs now operate on the WLA Campus pursuant to leases,

19 memoranda of understanding, revocable licenses, or enhanced sharing agreements

20 entered into by VA GLA - perhaps because, according to VA GLA, the WLA

21 Campus "is perceived to be one of the most valuable parcels of real estate in the

22 western United States." WEST Los ANGELES VA MEDICAL CENTER, VETERANS

23 PROGRAMS ENHANCEMENT ACT OF 1998 (VPEA) DRAFT MASTER PLAN 8 (Jan. 2011)

24 [hereinafter "VA GLA MASTER PLAN"], available at

25 http://www.scribd.comldoc/48127448/WLA-VA-Draft-Master-Plan. As a result of

26 these land deals, veterans have limited access to, or are altogether prohibited from

27 accessing, approximately 110 acres of the 387-acre WLA Campus (nearly 30· percent

28 of the grounds). In fact,· the current agreements render those 110 acres unavailable to

7

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 10 of 72 Page ID #:57

1 provide housing or otherwise expand the services offered to disabled veterans.

2

17. There has never been a public accounting of how much money VA

3 GLA receives under these land deals; who receives payments under these deals; the

4 purposes for which the revenue received, if any, has been used; or the process by

5 which these deals were negotiated. The VA GLA-approved private uses of land on

6 the WLA Campus include:

7 • Ten acres near the hospital are leased to Enterprise Rent-A-Car and

8

Tumbleweed Transportation, a charter bus operator, for vehicle storage and/or

9

sales;

10 • Sodexho Marriott operates a laundry facility and an adjacent water softening

11

unit for processing linen from surrounding hotels;

12 • An energy company has been operating active oil wells on approximately 2.5

13

acres for 23 years and 1.5 acres are subject to an enhanced sharing agreement

14

with TMC, LLC to operate a farmer's market;

15 • Richmark Entertainment operates the Wadsworth Theater for commercial

16

productions, and, although it was originally constructed as an entertainment

17

center for veterans, veterans are charged full price for all events held there;

18

Richmark also operates the Brentwood Theater on the WLA Campus;

19 • Westside Services LLC operates parking areas throughout the WLA Campus

20

on behalf of businesses and other establishments in the surrounding

21

community;

22 • UCLA utilizes the Jackie Robinson Baseball Stadium and complex for its

23

collegiate team and summer baseball camps;

24 • Brentwood Private School utilizes 20 acres, on which it has constructed

25

athletic fields, a track, tennis courts, and a swimming pool;

26 • The City of Los Angeles utilizes 12 acres as a public park, which includes a

27

fenced dog run, athletic fields, and a parking lot;

28 • Two soccer clubs use MacArthur Field, where veterans once played softball,

8

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 11 of 72 Page ID #:58

1

and an adjacent parking lot; and

2 • Movie and television production companies utilize portions of the WLA

3

Campus for short-term, non-recurring filming projects, and other private

4

parties rent portions of the land for one-time events, such as fundraisers and

5

weddings.

6

18. DVA and VA GLA officials, including Defendant Eric Shinseki, the

7 Secretary ofDVA, and Defendant Donna M. Beiter, the Director of VA GLA, have

8 resisted attempts by descendents of the individuals who donated the land in 1888,

9 including Plaintiff Carolina Winston Barrie and her family, along with veterans,

10 community, and philanthropic organizations to obtain information about these land

11 deals and to retain the original intent of the 1888 land grant. At the same time, VA

12 GLA transferred a parcel of land on the WLA Campus to the State of Califomia to

13 build a geriatric care facility, and inserted a provision in the deed under which title

14 will revert to the federal government if the State ceases using the land "as a nursing

15 home or for domiciliary uses, as agreed upon in the original deed." VA GLA

16 MASTER PLAN at 10. Thus, VA GLA has acknowledged the original intent behind

17 the 1888 land transfer and even imposed a duty to honor that intent on the State,

18 while openly using portions of the WLA Campus for purposes plainly inconsistent

19 with that intent.

20

19. Through this suit, Plaintiffs seek to vindicate their rights while shining a

21 light on the crisis of homelessness among veterans, particularly in the Greater Los

22 Angeles area, and on the misuse of the WLA Campus. For now the Obama

23 administration's goal of ending homelessness among veterans is merely a lofty

24 aspiration. Concrete action is necessary to accomplish that goal. As DVA has

25 acknowledged, a critical step in achieving that goal is to provide permanent

26 supportive housing as a reasonable accommodation for veterans like Plaintiffs

27 Valentini, Moram, Doe, and Romine, who suffer from a mental disability and/or

28 brain injury that renders them unable to obtain or maintain stable housing and who

9

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 12 of 72 Page ID #:59

1 require stable housing to meaningfully access the services to which they are entitled.

2 Given the availability of the WLA Campus, the history of the 1888 donation of the

3 land that created a charitable trust, and the Greater Los Angeles area's status as the

4 capital of veteran homelessness, it is especially reasonable and appropriate to

5 develop such programs in Los Angeles. Through this lawsuit, Plaintiffs seek to

6 compel defendants to do just that.

7

20. Plaintiffs Valentini, Moraru, Doe, and Romine seek declaratory and

8 injunctive relief on behalf of themselves and a class of similarly situated disabled

9 homeless veterans to remedy the unlawful discrimination against Plaintiffs solely by

10 reason of their disabilities, and Plaintiff Vietnam Veterans of America joins them in

11 seeking this relief. Additionally, all Plaintiffs seek declaratory, injunctive, and

12 mandamus relief to enforce the charitable trust that was created by the 1888 deed

13 that transferred the land to the federal government for the express purpose of

14 establishing and permanently maintaining a home for disabled veterans and seek an

15 accounting of the monies obtained through land deals and other for-profit use of the

16 WLA Campus inconsistent with the trust requiring use of the land for maintaining a

17 home for disabled veterans.

18

19

JURISDICTION

20

21. This Court has jurisdiction over Plaintiffs' claims for injunctive relief

21 based on 28 U.S.C. § 1331, because those claims arise under federal statutes and

22 federal common law.

23

22. Additionally, this Court has jurisdiction over Plaintiffs' claims under

24 Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 793) based on 28 U.S.C.

25 § 1343(a)(4), because those claims seek to secure equitable relief under an Act of

26 Congress.

27

23. To the extent Plaintiffs' claims to enforce the terms of the charitable

28 trust and for an accounting of profits do not present a federal question sufficient to

10

r c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 13 of 72 Page ID #:60

1 confer jurisdiction under 28 U.S.C. § 1331, this Court has jurisdiction over those

2 claims under 28 U.S.C. § 1367.

3

24. Finally, this Court has jurisdiction over Plaintiffs' alternative claim for

4 mandamus relief under 28 U.S.C. § 136l.

5

25. Pursuant to the Court's jurisdiction over this matter, Plaintiffs Valentini,

6 Moraru, Doe, and Romine bring this action on behalf of themselves and all other

7 persons similarly situated, with respect only to the first and second causes of action

8 in this Complaint.

9

10

VENUE

11

26. Venue is proper in the Central District of California under 28 U.S.C.

12 § 1391(b) because all of the acts and/or omissions complained of herein occurred or

13 will occur in the District.

14

15

PARTIES

16

27. Plaintiff Greg Valentini is a 33-year old citizen of the United States and

17 a resident of Los Angeles County, California. Mr. Valentini is an Army veteran who

18 became severely disabled as a result of his service to this country, including tours of

19 duty in Afghanistan and Iraq. He is eligible for medical benefits from DVA.

20 Because he resides in Los Angeles, he seeks treatment from VA GLA.

21

28. Plaintiff Adrian Moraru is a 37-year old lawful permanent resident of

22 the United States and a resident of Los Angeles County, California. Mr. Moraru is a

23 veteran who became severely disabled after serving this country as a Marine,

24 including a tour of duty in Iraq. He is eligible for medical benefits from DVA.

25 Because he resides in Los Angeles, he seeks treatment from VA GLA.

26

29. Plaintiff Jane Doe is a 54-year old citizen of the United States and a

27 resident of Los Angeles County, California. Ms. Doe is an Army veteran who

28 became severely disabled as a result of her service to this country. She is eligible for

11

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 14 of 72 Page ID #:61

1 medical benefits from DVA. Because she resides in Los Angeles, she seeks

2 treatment from VA GLA.

3

30. Plaintiff Chris Romine is a 35-year old citizen of the United States and a

4 resident ofLos Angeles County, California. Mr. Romine is a veteran of the United

5 States Army who became severely disabled after serving this county, including two

6 tours of duty in Iraq. He is eligible for medical benefits from DVA. Because he

7 resides in Los Angeles, he seeks treatment from VA GLA.

8

31. Plaintiff Vietnam Veterans of America (VVA) is a membership-based

9 organization with over 65,000 members across the country. It is the only national

10 Vietnam veterans organization congressionally chartered and exclusively dedicated

11 to Vietnam-era veterans and their families. VVA's goals are to promote and support

12 the full range of issues important to Vietnam veterans, to create a new identity for

13 this generation of veterans, and to change public perception of Vietnam veterans.

14 VVA operates 46 state councils, including the Vietnam Veterans of America,

15 California State Council (VVA-CSC). Hundreds ofVVA-CSC members reside

16 within VA GLA's service area. Some of these members have serious mental

17 disabilities and are at risk of becoming homeless.

18

32. Plaintiff Carolina Winston Barrie is a citizen of the United States and a

19 resident of Los Angeles County, California. Ms. Barrie is a direct descendant of

20 Arcadia B. de Baker, who, together with United States Senator John P. Jones,

21 donated the land on which VA GLA' s WLA Campus is now located.

22

33. Defendant Eric Shinseki is the Secretary of DVA. He is sued in his

23 official capacity. DVA is a federal agency with headquarters in Washington, D.C.

24 and successor entity to the National Home for Disabled Volunteer Soldiers. DVA

25 oversees the Veterans Health Administration, which operates the United States'

26 largest integrated health care system consisting of 153 medical centers and numerous

27 community-based outpatient clinics, community living centers, vet centers and

28 domiciliaries.

12

c (~ Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 15 of 72 Page ID #:62

1

34. Defendant Shinseki's official duties as Secretary of DVA include the

2 proper execution and administration of all laws and programs administered by DVA

3 and the control, direction, and management of DVA. See 38 USCA § 303. As

4 Secretary of DVA, Defendant Shinseki has the ultimate responsibility for ensuring

5 that DVA and its constituent agencies and programs comply with relevant federal

6 law, regulations, and policies, as well as ensuring that DVA maintains compliance

7 with contracts and land grants such as the 1888 deed referenced in this Complaint.

8

35. Defendant Donna M. Beiter is the Director of VA GLA. She is sued in

9 her official capacity. VA GLA maintains its headquarters in Los Angeles, California,

10 and serves veterans in Los Angeles, Ventura, Santa Barbara, San Luis Obispo, and

11 Kern counties in Southern California. VA GLA is one of five health care systems

12 operated by VA Desert Pacific Healthcare Network, which is one of 21 Veterans

13 Integrated Services Networks (VISNs) operated nationwide by DVA to provide

14 preventive and primary care, acute hospital care, mental health services, specialty

15 care, and long-term care to veterans.

16

36. Defendant Beiter's official duties as Director of VA GLA include

17 supervising the day-to-day operations and services offered by all the institutions

18 operated by VA GLA, including all programs operated at the WLA Campus, and

19 ensuring that VA GLA complies with relevant federal law, regulations, and policies.

20 As the Director of VA GLA, Defendant Beiter has final authority to approve matters

21 related to program design, criteria for admission and continued treatment, and the

22 particular components and nature of all services offered by VA GLA, as well as final

23 decision-making authority related to use of the WLA Campus and any contracts with

24 third parties for access to and use of the WLA Campus.

25 II

26 II

27 II

28 II

13

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 16 of 72 Page ID #:63

1

FACTUAL ALLEGATIONS

2

The Crisis of Veteran Homelessness

3

37. As Defendant Shinseki said in 2009, "Those who have served this

4 nation as Veterans should never find themselves on the streets, living without care

5 and without hope." Sadly, tens of thousands of veterans find themselves in that

6 position every night, homeless like Plaintiffs Valentini, Moram, Doe, and Romine.

7 The majority of these individuals, including Plaintiffs Valentini, Moram, Doe, and

8 Romine, suffer from serious mental health disorders and/or brain injuries.

9

38. One out of every 168 veterans experiences homelessness during the

10 course ofa year,3 and DVA estimated that 107,000 veterans were homeless on any 11 given night in 2009.4 Veterans are overrepresented in the homeless population and 12 are about 50 percent more likely to become homeless compared to all Americans.5

13

39. Although reliable data is difficult to find, recent veterans who served in

14 OEF and OIF and related operations are at especially high risk of becoming

15 homeless. In December 2010, DVA estimated that over 9,000 OEFIOIF veterans

16 were homeless, and that number is expected to grow as additional service members 17 leave military service.6

18

19

20

3 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF

VETERANS AFFAIRS, VETERAN HOMELESSNESS: A SUPPLEMENTAL REpORT TO TIlE 2009 ANNuAL

21 HOMELESS ASSESSMENT REpORT TO CONGRESS i, available at

http://www.hudhre.info/documents/2009AHARVeteransReport.pdf (last accessed May 29, 2011).

22

4 JOHN KUHN AND JOHN NAKASHIMA, THE SIXTEENm ANNuAL PROGRESS REpORT:

COMMUNITY HOMELESSNESS ASSESSMENT, LOCAL EDUCAnON AND NETWORKING GROUP

23 (CHALENG) FOR VETERANS (FY 2009) SERVICES FOR HOMELESS VETERANS ASSESSMENT AND

COORDINAnON 23 (March 17, 2010), available at

24 http://www.va.govIHOMELESS/docs/chaleng/chaleng sixteenth annual report.pdf

25

5 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF

VETERANS AFFAIRS, VETERAN HOMELESSNESS: A SUPPLEMENTAL REpORT TO TIlE 2009 ANNuAL

26 HOMELESS ASSESSMENT REpORT TO CONGRESS 12, available at

http://www.hudhre.info/documents/2009AHARVeteransReport.pdf(last accessed May 29,2011).

27

6 Bob Woodruff, Ian Cameron & Christine Romo, "Corning Horne Homeless: The New

Homeless Among Veterans," ABC NEWS (Dec. 26, 2010), available at

28 http://abcnews.go.comlThisWeeklcorning-home-homeless-homeless-veterans/story?id=12478952.

14

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 17 of 72 Page ID #:64

1

40. Between 44,000 to 66,000 veterans are believed to be experiencing

2 chronic homelessness.7 Individuals meet the federal definition of chronic

3 homelessness if they have "a disabling condition" and have "either (a) been

4 continuously homeless for a year or more OR (b) [have] had at least 4 episodes of

5 homelessness in the past three years." 24 C.F.R. §91.5. Veterans are more likely to 6 be chronically homeless than non-veterans.8

7

8

Causes of Chronic Homelessness

9

41. In the late 1990s, researchers began studying individuals who remained

10 homeless for extended periods, often for years and decades, or who frequently cycled

11 in and out of homelessness, to try to understand the causes of chronic homelessness

12 and the barriers that prevent these individuals from attaining and maintaining stable 13 housing.9 This body of research has established the close correlation between

14 homelessness and disabilities, particularly mental health and substance abuse

15 disorders. to It has also identified numerous barriers that prevent chronically

16 homeless individuals from accessing the services intended to assist them in

17 overcoming chronic homelessness.

18

42. First, for individuals with serious mental disabilities, the disability itself

19

7 UNTIED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, OPENlNG DOORS: FEDERAL

STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 20 (2010), available at

20 http://www.usich.govIPDF/OpeningDoors 2010 FSPPreventEndHomeless.pdf.

21

8 See MARlHA R. BURT, HOMELESSNESS: PROGRAMS AND TIIE PEOPLE THEy SERVE 11-3 to -

6 (1999), available at http://www.huduser.orglportallpublications/pdflhome techltchap-ll.pdf

22 (finding that 32 percent of homeless veterans reported being homeless for over 13 months, while

only 17 percent of homeless non-veterans reported this extended length of homelessness).

23

9 See Randall Kuhn & Dennis P. Culhane, Applying Cluster Analysis to Test a Typology of

24 Homelessness by Pattern ofShelter Utilization: Results from the Analysis ofAdministrative Data,

26 AM. J. COMMUNITY PSYCHOL. 207, 225 (1998) (finding the chronically homeless have higher

25 levels of mental health, substance abuse, and medical problems).

10 See, e.g., David P. Folsom et aI., Prevalence and Risk Factorsfor Homelessness and
26 Utilization ofMental Health Services Among 10,340 Patients with Serious Mental Illness in a 27 Large Public Mental Health System, 162 A.J. PSYCHIATRY 370 (2005) (finding that between one-
fourth and one-third ofpersons experiencing homelessness have current severe psychiatric 28 conditions, such as schizophrenia, major depression, and bipolar disorder, and that 50 percent of
these individuals have co-occurring substance abuse disorder).

15

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 18 of 72 Page ID #:65

1 is a barrier both to acquiring and maintaining stable housing and to accessing

2 medical and mental health care, shelter, and other vital services once these

3 individuals become homeless.I I Without supports or assistance, these individuals

4 cannot access available services to treat the disability or to meet their basic needs.

5 For example, many individuals with severe mental illness or cognitive impairment

6 are not capable of completing applications or persisting through intake processes 7 without substantial assistance, which is often not provided.12 Similarly, individuals

8 with PTSD frequently experience memory loss and other cognitive impairments that

9 result in difficulty remembering appointments, which can lead to dismissal from

10 programs for "noncompliance." Additionally, for some individuals with severe

11 mental disabilities, their disabilities prevent them from functioning in the settings in

12 which the services are offered, such as individuals whose disabilities prevent them

13 from sharing living space or sleeping quarters with others, but who are required to

14 complete a transitional housing program that requires dorm-style living before they

15 are eligible for permanent housing.

16

43. Lack of housing also exacerbates mental disabilities and creates new

17 health problems, thereby impairing the individual's ability to function and impeding

18 the individual's ability to access necessary services. For example, the experience of

19 homelessness is inherently stressful, requiring constant vigilance to avoid danger,

20 and exposes homeless individuals to increased risks of trauma, leading to PTSD or 21 aggravating already existing PTSD and other mental disorders. 13 For individuals

22

Il See, e.g., Amy L. Drapalski et aI., Perceived Barriers to Medical Care and Mental

Health Care Among Veterans with Serious Mental Illness, 59 PSYCIllATRIC SERVICES 921 (2008),

23 available at http://ps.psychiatryonline.oqVcgi!contentlabstractl59/8/921 (finding that psychiatric

24 symptoms and mental illness severity pose one of the most significant barriers to medical and

mental health care).

25

12 See Michael D. Nino et aI., Who are the Chronically Homeless? Social Characteristics

and Risk Factors Associated with Chronic Homelessness, 19 J. SOC. DISlRESS & HOMELESS 41

26 (2010) (finding chronically homeless individuals were more likely to report that paper work for

government benefits was too difficult to complete).

27

13 See Bruce D. Levy & James J. O'Connell, Health Care/or Homeless Persons, 350 NEW

28 ENG. J. MED. 2329, 2330 (2004) (finding that life on the street increases social isolation and the

risk ofpsychiatric conditions).

16

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 19 of 72 Page ID #:66

1 whose disability causes paranoia or severe anxiety, the uncertainty and diminished

2 security and safety created by homelessness exacerbate the mental disability. 14 For

3 many individuals with serious mental disabilities, effective health treatment

4 presupposes stability and regularity, which is simply not possible for chronically

5 homeless individuals to achieve. IS Additionally, individuals experiencing

6 homelessness frequently suffer from chronic and acute health conditions that are

7 caused or exacerbated by the lack of stable shelter, including respiratory disorders,

8 cardiovascular diseases, frostbite and hypothermia, skin diseases, diabetes, liver

9 disease, and traumatic injuries due to assaults, falls, and accidents. 16

10

44. Thus, homelessness resulting from mental disability, and mental

11 disability aggravated by homelessness, interfere both with the ability to obtain

12 treatment and with amelioration of the mental disability itself, including the ability to

13 obtain appropriate psychotropic medications. Accessing these services requires

14 capacities to understand, plan, and follow procedures and to tolerate waiting rooms

15 and other conditions that are frequently beyond the impaired abilities of chronically

16 homeless individuals with mental disabilities. Lacking effective access to

17 appropriate medication and supervised treatment, homeless individuals with mental

18 disabilities frequently resort to inappropriate medication, in the form of illegal drugs

19 that can have powerful psychotropic effects but are also most often addictive and

20

14 See Kevin M. Fitzpatrick et aI., Dangerous Places: Exposure to Violence and Its Mental 21 Health Consequences/or the Homeless, 69 A.J. OR1HOPSYCHIAlRY 438,444-45 (1999), available 22 at http://onlinelibrarv.wiley.comldoillO.1037/h0080392/pdf (finding that patients experiencing
anxiety and paranoia were "significantly affected by the perceived dangers inherent in the homeless environment"). 23
15 See Deborah L. Dennis et aI., The Physical and Mental Health Status o/Homeless Adults, 24 2 HOUSING POL'y DEBATE 815,822 (1991), available at
http://www.knowledgeplex.orglkp/text document summary/scholarly artic1e/relfiles/hpd 0203 d 25 ennis2.pdf ("Homeless persons present a more advanced state of [mental] illness and are less likely,
due to their homeless situation, to follow even the simplest of treatment regimens.').

26

16 See Bruce D. Levy & James J. O'Connell, Health Care/or Homeless Persons, 350 NEW

ENG. J. MED. 2329, 2330 (2004); see also Mayur M. Desai & Robert A. Rosenheck, Unmet Need

27 for Medical Care Among Homeless Adults with Serious Mental Illness. 27 GEN. Hosp. PSYCHIAlRY

28 418 (2005) (finding that 43.6 percent ofpersons who are homeless and have serious mental

illnesses had unmet needs for medical care at the time ofprogram entry).

17

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 20 of 72 Page ID #:67

1 come with negative side effects.17

2

45. The lack of housing itself, especially combined with a serious mental

3 disability, is a formidable barrier to accessing services. For many homeless

4 individuals, the immediacy of the daily struggle for shelter, food, and other

5 necessities relegates medical and mental health needs to a distant priority. IS Thus,

6 common illnesses and injuries are left untreated, leading to increased emergency 7 hospital visits and acute care admissions.19

8

46. In sum, a robust body of research has established that the subset of the

9 homeless population who, like Plaintiffs Valentini, Moraru, Doe, and Romine, suffer

10 from severe mental illnesses, such as PTSD, paranoid schizophrenia, and bipolar

11 disorder, are unable to meaningfully access the range of services offered to homeless

12 individuals to meet their day-to-day needs, including shelter, or to'obtain appropriate

13 health care, mental health are, or addiction treatment, due to symptoms of their

14 disabilities and their lack of stable housing.

15

16 Factors that Make Veterans Especially Susceptible to Chronic Homelessness

17

47. Like other homeless populations, homeless veterans' risk factors for

18 chronic homelessness include poverty, joblessness, mental illness, and substance 19 abuse.20 Due to the relatively higher incidence of mental illness and substance abuse

20 disorders among veterans, however, veterans are particularly vulnerable to chronic

21

22

17 See Timothy P. Johnson & Michael Fendrich, Homelessness and Drug Use: Evidence

from a Community Sample, 32 AM. J. PREVENTATIVE MED. S211, S212 ("Homeless individuals ...

23 abuse drugs and alcohol in an attempt to provide self-medication for psychiatric or physical health

problems.").

24

18 See Dennis, supra note 15, at 826 (finding mentally ill homeless persons often do not

25 receive needed physical and mental health care because they "giv[e] higher priority to other basic

needs, such as procuring food and shelter on a daily basis.").

26

19 Margot B. Kushel et aI., Factors Associated with the Health Care Utilization ofHomeless

Persons, 285 JAMA 200 (2001) (finding that compared with the general population, the homeless

27 are 3 times more likely to seek emergency care at least once in a year).

20 Robert A. Rosenbeck & Peter Koegel, Characteristics ofVeterans and Nonveterans in 28 Three Samples ofHomeless Men, 44 Hasp. & COMMUNITY PSYCHIATRY, 858, 861 (1993).

18

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 21 of 72 Page ID #:68

1 homelessness.21 Although military service as such is not predictive of homelessness,

2 military service is strongly associated with factors that contribute to homelessness?2

3 For example, combat exposure and the stress related to deployment contribute to

4 high levels of social isolation upon returning home, psychiatric disorders, and
5 substance abuse disorders, all of which, in tum, contribute direc~ly to 6 homelessness.23

7

48. Veterans of the post-Vietnam All-Volunteer Force era have an even

8 higher risk ofmental-~llness-induced homelessness than veterans from earlier eras.24

9 Researchers have identified several causes for the increased risk of mental illness

10 and subsequent homelessness of veterans of recent conflicts, including waning public

11 support and lower morale among troops, the nature of modem warfare resulting in

12 unexpected threats to life via roadside bombs and improvised explosive devices, and 13 multiple and more-lengthy deployments.25 According to one study, one in five

14 soldiers who were deployed as part of OEFIOIF returned home with symptoms of

15 PTSD or major depression, which is a substantially higher rate than the general

16
21 See, e.g., Robert Rosenheck et aI., The Proportion of Veterans Among Homeless Men, 84 17 AMERICAN J. OF PUB. HEALTII 466 (1994) (finding that higher prevalence ofpsychiatric illness,
substance abuse, and, especially, antisocial personality disorder among veterans is a contributor to 18 their greater vulnerability to homelessness).

19

22 See, e.g., Robert Rosenbeck & Alan Fontana, A Model ofHomelessness Among Male

Veterans ofthe Vietnam War Generation, 151 AM. J. PSYCIllAIRY 421, 425 (1994) (reporting

20 significant indirect effects on homelessness resulting from war zone traumatic experience).

23 Id. at 421 (finding that post-military social isolation, psychiatric disorder, and substance 21 abuse had the strongest direct effects on homelessness).

22

24 See, e.g., Karen H. Seal et aI., Trends and Risk Factors for Mental Health Diagnoses

Among Iraq and Afghanistan Veterans Using Department of Veterans Affairs Health Care, 2002-

23 2008,99 AM. J. PUB. REALTII 1651 (2009) (documenting that 37 percent of veterans returning from

Iraq and Afghanistan who utilized DVA health care system between 2002 and 2008 received a

24 mental health diagnosis); Anna Kline, et aI., The Relationship Between Military Service Eras and

Psychosocial Treatment Needs Among Homeless Veterans with a Co-Occurring Substance Abuse

25 and Mental Health Disorder, 5 J. DUAL DIAGNOSIS 358 (2009) (finding that mentally ill,

substance-abusing veterans ofrecent conflicts became homeless at an earlier age than other

26 veterans and were more likely to attribute their homelessness to mental health problems).

25 See Seal, supra note 24, at 1656; see also Charles S. Milliken, et aI., Longitudinal 27 Assessment ofMental Health Problems Among Active and Reserve Component Soldiers Returning 28 from the Iraq War, 298 JAMA 2141 (2007) (finding combat exposure was associated with higher
rates ofPTSD among veterans ofOIF).

19

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 22 of 72 Page ID #:69

1 population?6

2

3

Without Stable Housing, Seriously Disabled Individuals

4

Cannot Meaningfully Access Critical Services

5

49. Although addressing the needs of homeless individuals with serious

6 mental illness is complex, research conducted over the last few decades confirms that

7 stable housing is a precondition to effective treatment of severe mental disorders

8 and/or associated addiction disease. With the stability and security of permanent

9 housing, the formerly homeless veteran with severe disabilities can meaningfully

10 access mental health, physical health, substance abuse, vocational, and other services.

11 Permanent supportive housing is thus intended specifically for homeless individuals

12 with disabilities who, without housing, cannot access and make effective use of the

13 treatment and services they need to stay stable; and who, without such treatment and

14 supportive services, cannot access and maintain stable housing.

15

50. A significant body of evidence demonstrates that permanent supportive

16 housing has successful long-term housing outcomes for previously chronically 17 homeless persons, including those with the most severe impediments.27 In addition

18 to housing stability, studies have shown enormous benefits for participants in

19 permanent supportive housing programs. Documented outcomes include improved

20 mental health status, decreased substance abuse, increased average income, and 21 improved quality of life.28

22 26 THE INVISmLE WOUNDS OF WAR.: PSYCHOLOGICAL AND COGNITIVE INJURIES, THEIR
23 CONSEQUENCES, AND SERVICES TO ASSIST RECOVERY, at xxi (Terri Tanielian & Lisa H. Jaycox eds., RAND Corporation 2008), available at
24 http://www.rand.org/contentidamlrand/pubs/monographs/2008IRAND MG720.pd£
27 See, e.g. Sam Tsemberis & Ronda F. Eisenberg, Pathways to Housing: Supported 25 Housing/or Street-Dwelling Homeless Individuals with Psychiatric Disabilities. 51 PSYCHIATRIC 26 SERVICES 487, 491 (2000) (finding 88 percent housing-retention rate for permanent supportive
housing program over five-year period - a much lower risk ofhomelessness than in traditional 27 residential treatment programs);.
28 See, e.g., PERLMAN, supra note 27 (finding that 50 percent of residents in the Denver 28 program had improved mental health status, 64 percent reported improved quality of life, and 15
percent had decreased substance abuse, and that average monthly income rose from $185 to $431);
(cont'd)
20

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 23 of 72 Page ID #:70

1

51. Aside from individual benefits for veterans, permanent supportive

2 housing also provides substantial cost savings to government at all levels. When left

3 on the streets, the homeless utilize a substantial array of community resources in the

4 form of increased health care utilization, emergency room care, public health

5 services, and continuing use of expensive temporary shelters. Numerous studies

6 have demonstrated that permanent supportive housing offers substantial cost savings

7 when compared to alternative homeless interventions. For example, Dennis

8 Culhane, a professor at the University of Pennsylvania who also serves as the

9 Director of Research for the National Center on Homelessness Among Veterans at

10 DVA, conducted a comprehensive study of permanent supportive housing that

11 tracked the costs associated with nearly 10,000 homeless persons with mental illness

12 in New York City for two years while they were homeless and two years after they

13 were housed. Dr. Culhane found that supportive housing created average annual

14 savings of$16,282 per person. Seventy-two percent of the savings resulted from a

15 decline in the use of public health services, 23 percent of the savings resulted from a

16 decline in shelter use, and the remaining 5 percent of the savings resulted from

.17 reduced incarceration of homeless people. The reduction in expenditures in these

18 areas nearly covered the cost of developing, operating, and providing supportive

19 housing services, resulting in a net cost to the government of only $995 per unit per

20 year.29 A study conducted by the Economic Roundtable for the Los Angeles

21
(cont'dfrom previous page)
22 Joy A. Livingston & Debra Srebnik, Approaches to Providing Housing and Flexible Supports for People with Psychiatric Disabilities, 16 PSYCHOSOCIAL REHABILITATION J. 27 (1992) (finding
23 participants in pennanent supportive housing programs had greater housing satisfaction, improved 24 housing stability, and greater psychological well-being).
29 See Dennis P. Culhane et aI., Public Service Reductions Associated with Placement of 25 Homeless Persons with Severe Mental Illness in Supportive Housing, 13 HOUSING POL'y DEBATE
107 (2002); see also DANIEL FLAMING ET AL., WHERE WE SLEEP: COSTS WHEN HOMELESS AND 26 HOUSED IN Los ANGELES 26 (2009) (documenting $2,291 average monthly cost savings for each
chronically homeless Los Angeles participant); MASSACHUSETTS HOUSING AND SHELTER 27 ALLIANCE, HOME AND HEALTHY FOR GOOD: A STATEWIDE HOUSING FIRST PROGRAM (2010)
(documenting cost savings of$9,507 per resident per year, including reduction in medical costs 28 from $26,124 per person per year to $8,500); Tia E. Martinez & Martha R. Burt, Impact of
Permanent Supportive Housing on the Use ofAcute Care Health Services by Homeless Adults, 57
(cont'd)
21

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 24 of 72 Page ID #:71

1 Homeless Services Authority found that the public costs attributed to chronically

2 homeless persons in permanent supportive housing averaged $27,504 per year less

3 than the costs attributed to similar persons when they were on the streets or in 4 shelters.3o

5

52. Finally, communities with permanent supportive housing programs are

6 safer, more efficient, and more attractive. In some instances, property values in

7 neighborhoods surrounding permanent supportive housing programs have 8 increased.31

9

53. The success ofpermanent supportive housing has been replicated in Los

10 Angeles, as exemplified by Project 50 and later by other similar projects in the

11 region. Spearheaded by Los Angeles County Supervisor Zev Yaroslavsky, the goal

12 of Project 50 was to identify, then place into permanent supportive housing, the 50

13 most vulnerable people who were sleeping on the streets of Skid Row. Many of

14 these individuals had been designated "shelter resistant," because they preferred

15 sleeping on the streets to being in a crowded shelter situation. But all of those

16 offered their own housing, albeit a small, private room in a nonprofit housing

17 facility, accepted the offer. Forty-nine people were placed into permanent supportive

18 housing, and 88 percent remained housed one year later. Ninety-one percent of

19

(cont'dfrom previous page)
20 PSYCHIA1RIC SERVICES 992 (2006) (documenting $1,300 public cost reduction per resident in San Francisco); THE HEARTLAND ALLIANCE, SUPPORTIVE HOUSING IN ILLINOIS: A WISE INVESTMENT
21 (2009) (documenting overall savings of $854,477 over two years); ERIC HIRSCH & IRENE GLASSER,
22 RHODE ISLAND'S HOUSING FIRST PROGRAM FIRST YEAR EVALUATION (2007) (documenting cost savings of $8,839 per person per year).

23

30 FLAMING, supra note 29.

31 See, e.g., FuRMAN CENTER FOR REAL ESTATE & URBAN POLICY, THE IMPACT OF 24 SUPPORTIVE HOUSING ON SURROUNDING NEIGHBORHOODS: EVIDENCE FROM NEW YORK CITY 6-7
(2008), available at 25 http://funnancenter.org/files/FunnanCenterPolicyBriefonSupportiveHousing_LowRes.pdf
(examining the impact of 7,500 supportive housing units in New York City and finding a 26 statistically significant rise in the value of nearby properties); ARTHUR ANDERSEN, CONNECTICUT
SUPPORTIVE HOUSING DEMONSTRATION PROGRAM: FINAL PROGRAM EVALUATION REpORT chp. III 27 (2002), available at http://documents.csh.orgidocuments/pubs/CT2002Evaluation.pdf (finding 28 supportive housing improved neighborhood safety and beautification and increased or stabilized
property values).

22

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 25 of 72 Page ID #:72

1 tenants were diagnosed with a mental illness and 84 percent reported a history of

2 substance abuse. Similar to other studies, Project 50 showed that health care costs

3 for participants declined from $677,000 the year prior to participation in the program 4 to $185,000 for the year after they began living in supportive housing.32

5

54. In short, both experience and empirical research have demonstrated that

6 permanent supportive housing is the only approach that consistently ensures that

7 individuals with serious mental disabilities are able to meaningfully access necessary

8 medical care, mental health services, and other social services.

9

55. These lessons can and must be applied to address the crisis of chronic

10 veteran homelessness in order to ensure that our veterans receive the medical care

11 and support to which they are entitled and that they deserve, as even DVA itself has

12 recognized. According to a report recently co-authored by DVA, "[flor the large

13 percentage of veterans with disabilities, permanent supportive housing would be

14 effective in helping them achieve long-term stability.,,33

15

16

The Crisis of Veteran Homelessness in the Greater Los Angeles Area

17

56. According to a 2009 survey conducted by VA GLA staff, there were

18 8,197 homeless veterans on any given day within VA GLA's coverage area, so

19 approximately 8 percent (8,197 of the estimated 107,000) of all homeless veterans in 20 the United States lived within VA GLA's coverage area in 2009.34

21

57. In 2011, VA GLA released data about the homeless veteran population

22 that had received services from VA GLA in fiscal year 2010. Of the 6,397 homeless

23 veterans that VA GLA documented as having received services in fiscal year 2010,

24

32 See Project 50 - 1 year Progress Report, L.A. CNTY. BD. SUPERVISORS (Feb. 4, 2009),

25 http://zev.lacounty.gov/wp-contentiuploadslProject50-0NE-YEAR-SNAPSHOT-2.4.09.pdf.

33 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF 26 VElERANS AFFAIRS, VElERAN HOMELESSNESS: A SUPPLEMENTAL REpORT TO TIlE 2009 ANNuAL
HOMELESS ASSESSMENT REPORT TO CONGRESS 30, available at 27 http://www.hudhre.info/documents/2009AHARVeteransReport.pdf (last accessed May 29,2011).

34 See JOHN NAKASHIMA, CHALENG 2009 SURVEY RESULTS SUMMARY VISN 22, 28 available athttp://www.va.govIHOMELESS/docs/chalenglchaleng visn 22.pdf.

23

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 26 of 72 Page ID #:73

1 more than half served in the U.S. Armed Forces after the Vietnam War. Their

2 average age was 51. Ninety-five percent were male, 52 percent were African-

3 American, 29 percent were white, and 14 percent were Latino. About 34 percent had

4 been homeless for one year or longer. Forty-eight percent indicated a serious

5 substance abuse problem. In total, 46 percent had a serious psychiatric disorder,

6 including psychosis and PTSD. Twenty-six percent had both a substance abuse

7 problem and a serious psychiatric disorder, and 52 percent reported at least one

8 serious medical problem. VA GLA reported providing services to 130 homeless

9 veterans who had served in Iraq or Afghanistan.35

10

58. Thus, Defendants know or should know that the population of veterans

11 served by VA GLA includes numerous disabled individuals, who, like Plaintiffs

12 Valentini, Moram, Doe, and Romine, cannot meaningfully access the medical and

13 other benefits to which they are entitled unless they have stable housing that is linked

14 to the services provided by VA GLA.

15

16

Overview of Veterans' Benefits Programs

17

59. There are three admiriistrations within DVA: the Veterans Health

18 Administration (VHA), the Veterans Benefits Administration (VBA), and the

19 National Cemetery Administration (NCA). The VHA is tasked with providing "a

20 complete medical and hospital service for the medical care and treatment of

21 veterans ...." 38 U.S.C. § 7301(b).36

22

35 See JOlIN NAKASHIMA, VA PROGRAMS FOR HOMELESS VETERANS AT V A GREATER Los

ANGELES HEALTHCARE SYSTEM: AN OVERVIEW OF THE COMPREHENSIVE HOMELESS CENTER
23 (January 14,2011).

24

36 The VBA administers "nonmedical benefits programs ... which provide assistance to

veterans and their dependents and survivors." 38 U.S.C. § 7701(a). To be eligible for disability

25 compensation benefits from the VBA, veterans must present: evidence of a medical diagnosis of

the current impairment; evidence of an in-service incident or an aggravation of the disease or injury

26 causing the impairment; and medical proof of a connection between the in-service incident or

aggravation and the current disability. For the purposes of disability compensation, "[s]ervice-

27 connected means ... that such disability was incurred or aggravated ... in line of duty in the active

military, naval, or air service." 38 C.F.R. § 3.l(k). Ifa veteran is found eligible for disability

28 compensation, DVA uses a schedule to set the amount of earnings impainnent on a percentage

basis. 38 U.S.C. § 1155. The NCA is "responsible for the internment of deceased servicemembers

(cont'd)
24

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 27 of 72 Page ID #:74

1

60. To qualify for VHA benefits, a former service-member must have been

2 "discharged or released" from service ''under conditions other than dishonorable," 38

3 U.S.C. § 101(2), and must have performed "active duty" in the military, 38 U.S.C. §

4 101 (2). There is no length of service requirement for former enlisted persons who

5 started active duty before September 8, 1980, or for former officers who first entered

6 active duty before October 17, 1981. 38 U.S.C. § 5303A(b)(2). All other veterans

7 must have 24 months of continuous active duty unless they qualify for an exception

8 to the minimum service requirement. 38 U.S.C. § 5303A(b)(1). Exceptions to the

9 minimum service requirement include discharges "for a disability incurred or

10 aggravated in the line of duty." 38 U.S.C. § 5303A(b)(3)(B).

11

61. Veterans who qualify for VHA benefits are placed into one of eight

12 "priority groups" established by DVA regulations to determine their eligibility for

13 benefits. See 38 C.F.R. § 17.36(b). Veterans in the highest priority groups, 1

14 through 3, have service-connected disabilities of varying degrees. 38 C.F.R. §

15 17.36(b)(1)-(3). Veterans in priority group 4 have serious disabilities that are not

16 service-connected. 38 C.F.R. § 17.36(b)(4). Priority group 5 consists of low-income

17 veterans. 38 C.F.R. § 17.36(b)(5). Priority group 6 includes veterans exposed to

18 certain toxic substances, as well as recent combat veterans. 38 C.F.R. § 17.36(b)(6).

19 Veterans in priority groups 7 and 8 have no compensable service-connected

20 disabilities and have greater incomes·than those in priority group 5. 38 C.F.R. §

21 17.36(b)(6)-(7). "A veteran will be placed in the highest priority category or

22 categories for which the veteran qualifies." 38 C.F.R. § 17.36(d)(3)(ii).

23

62. Depending on the amount of funding provided by Congress, DVA may

24 "prioritize" the higher priority groups and provide VHA benefits only to veterans in

25 those priority groups. Currently, however, any veteran who falls within anyone of

26

27 (cont'd from previous page) 28 and veterans," and controls all "cemeteries under the jurisdiction ofthe Veterans'
Administration ...." 38 U.S.C. § 2400.

25

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 28 of 72 Page ID #:75

1 the first seven priority groups is eligible for the full VHA benefits package, and some

2 veterans who fall within priority group 8 are also eligible.

3

63. Additionally, regardless of whether a veteran is enrolled in the VHA

4 benefits program, DVA must provide hospital care and medical services "to any

5 veteran for a service-connected disability," 38 U.S.C. § 1710(a)(1)(A), "[e]ven if

6 [the veteran is] not enrolled in the VA healthcare system." 38 C.F.R. § 17.37(b).

7 DVA must also provide hospital care and medical services "to any veteran who has a

8 service-connected disability rated at 50% or more," regardless of whether the

9 treatment concerns the disability, 38 U.S.C. § 1710(a)(l)(B), and even if the veteran

10 is not enrolled in the medical benefits program. 38 C.F.R. § 17.37(a).

11

64. The benefits package offered through VHA includes outpatient medical,

12 surgical, and mental healthcare; inpatient hospital, medical, surgical, and mental

13 healthcare; prescription drug coverage; emergency care; substance abuse treatment,

14 and other services. See 38 C.F.R. § 17.38(a). Subject to congressional

15 appropriations, the VA must also ''provide nursing home care ... (1) to any veteran

16 who is in need of such care for a service-connected disability, and (2) to any veteran

17 who is in need of such care and who has a service-connected disability rated at 70

18 percent or more." 38 U.S.C. § 1710A(a). Thus, VHA provides preventive and

19 primary care, acute hospital care, mental health services, specialty care, and long-

20 term care, which includes residential treatment and housing services in some

21 circumstances. These services are collectively referred to herein as "VHA benefits."

22

23

VA GLA Serves Veterans in the Greater Los Angeles Area

24

Who Are Eligible for VHA Benefits

25

65. VHA provides VHA benefits to eligible veterans through twenty-one

26 (21) Veterans Integrated Services Networks (VISNs) around the country.

27

66. VA Desert Pacific Healthcare Network is the VISN that provides

28 services to veterans in Southern California and Southern Nevada. These services are

26

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 29 of 72 Page ID #:76

1 delivered through five healthcare systems - one in Southern Nevada and four in

2 Southern California. Each healthcare system operates a medical center with a

3 hospital and other inpatient and outpatient services, as well as varying numbers of

4 community clinics and vet centers.

5

67. VA GLA is one of these healthcare systems. The coverage area for VA .

6 GLA includes all or parts of Los Angeles County, Ventura County, Kern County,

7 Santa Barbara County, and San Luis Obispo County.

8

68. As the Director of VA GLA, Defendant Beiter is the VA GLA official

9 with final responsibility and authority to approve, modify, or terminate programs or

10 services offered as part of the VHA benefits delivered by VA GLA, and she is the

11 sole VA GLA official with responsibility and authority to approve specific uses of

12 the WLA Campus, including entering into land use agreements with private and

13 public entities.

14

69. The focal point of services offered by VA GLA is the WLA Campus.

15 The WLA Campus is a 387-acre parcel located about five miles from the Pacific

16 Ocean in an unincorporated area of Los Angeles County surrounded by the City of

17 Los Angeles. It is located between Sunset Boulevard to the north, Ohio Avenue to

18 the south, Interstate Highway 405 to the east, and San Vicente Boulevard to the west.

19 In addition to the array of services available at the WLA Campus, VA GLA operates

20 three ambulatory care centers, nine community clinics, and five vet centers

21 throughout its coverage area.

22

23

History of the WLA Campus

24

70. The land on which the WLA Campus is now located was donated to the

25 federal government in 1888 by United States Senator John P. Jones and Arcadia B.

26 de Baker for the purpose of establishing and permanently maintaining a soldier's

27 home for disabled war veterans on that land.

28

71. In 1865, Congress incorporated the National Home for Disabled

27

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 30 of 72 Page ID #:77

1 Volunteer Soldiers ("National Home") to operate branch homes throughout the

2 nation for soldiers who had been honorably discharged. The branch homes were

3 intended as true homes offered as a debt of gratitude to those who had served the

4 country. Accordingly, residents were provided housing, food, medical care,

5 recreation activities, and employment opportunities. There were no limitations on

6 how long a veteran could stay at a branch home once admitted.

7

72. Additionally, "disability" for the purposes of admission was interpreted

8 broadly. Veterans with physical wounds from their military service were admitted,

9 as well as individuals with recurring illnesses or psychological trauma that rendered

10 them unable to support themselves in civilian life. Although veterans could receive

11 medical treatment while they stayed at a branch home, many residents of the branch

12 homes did not require or receive ongoing medical care.

13

73. Thus, the National Home offered the promise of a permanent home for

14 veterans who had served their country and, by virtue of their service, were not able to

15 support themselves in civilian life.

1 6 7 4 . Between 1865 and 1870, the National Home's Board of Governors

17 opened four branch homes east of the Rocky Mountains. In 1887, Congress

18 authorized the National Home's Board of Govemors to establish a branch home west

19 of the Rocky Mountains. The legislation authorized the Board of Governors to

20 acquire land for this purpose.

21

75. In 1888, Senator John P. Jones and Arcadia B. de Baker donated the

22 land on which the WLA Campus now sits to the National Home for the purpose of

23 establishing and permanently maintaining the branch home authorized by the 1887 24 legislation?7 The deed conveying the land ("1888 Deed") provided, in pertinent part,

25

37 The 1888 Deed conveyed 300 acres to the National Home. In 1899 and 1921, successors

to Senator Jones and Mrs. de Baker conveyed additional land to the National Home to further the

26 purpose ofpermanently maintaining the National Home. All 387 acres of the WLA Campus were

conveyed through the 1888 Deed and the two later deeds from the original donors' successors.
27
In 1888, John Wolfskill also conveyed 300 acres of adjacent land to the National Home.

28 The land conveyed by that deed is now used as a national cemetery and federal buildings and is not

a part of the WLA Campus.

28

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 31 of 72 Page ID #:78

1

WITNESSETH: That whereas by an act ofCongress

2

app.roved March 2nd, 1887, to ~rovide for the location

ana erection of a branch home for disabled volunteer

3

soldiers West of the Rockv Mountains, the Board of

Managers of the Nationaillome for DIsabled Volunteer

4

Soldiers, were authorized, empowered and directed to

locate, establis~; construct and permanently maintain a

5

branch of said National Home for Disabled Volunteer

Soldiers, to be by such Board, located at such place in the

6

States West of tlie Rocl9r Mountains as to said Board

should appear most desirable and advantageous....

7

And whereas, the parties hereto of the first part [grantors]

8

in consideratIOn tliat the party hereto of the second part

[National Home] should locate, establish, construct and

9

~ermanently mamtain a branch of said National Home

for Disableo Volunteer Soldiers on a site to be selected

10

by its Board of Managers along the dividing line between

tlie Ranchos San Jose de Buenos Ayres and San Vicente

11

y Santa Monica offered to donate to the said party of the

second part, three hundred acres of land, being a portion

12

of said Rancho San Vicente y Santa Monica, 6elonging

to them, the said parties of tlie first part, on which to

13

locate, establish, construct and permanently maintain

such branch of said National Home for Disabled

14

Volunteer Soldiers....

15

Now therefore, in consideration of the premises and of

the location, establishment}. construction and permanent

16

maintenance of a branch or said National Home for

Disabled Volunteer Soldiers on such tract of land so

17

selected and of the benefits to accrue to the said parties of

the firstpart, owners of the said Rancho San Vicente y

18

Santa Monica, by such location have given and granted

and by these presents do give and grant unto the said

19

pal}y of the second part, all the following described land

and premises, situate lymg and being in the County of

20

Los Angeles State of Cahfomia and particularly

bounded and'described as follows: ... for thepurpose of

21

such branch Home for Disabled Volunteer Sofdiers to be

thereon so located, established, constructed and

22

permanently maintained.

23

76. The Pacific Branch of the National Home ("Pacific Branch Home")

24 opened in 1888 and housed approximately one thousand veterans in temporary

25 barracks until the permanent quarters were completed in 1891 and 1893.

26

77. Consistent with the goal of providing a home for soldiers, the grounds at

27 the Pacific Branch Home were transformed into a beautiful, park-like setting. A

28 hospital and other buildings were erected on the campus throughout the l890s. The

29

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 32 of 72 Page ID #:79

1 Pacific Branch Home also built a trolley line and erected a streetcar depot, which

2 transported freight and mail to and from the campus. Residents could easily travel to

3 the nearby Santa Monica beaches from the campus for rest and recreation. A chapel

4 was built in 1900 to hold daily services and burial services for deceased veterans. In

5 the early 1900s, the Pacific Branch Home built dormitories with wide porches to

6 replace the original barracks and opened a dining hall that could seat 760 members at

7 one time. A post office with more than 600 private letter boxes operated on the

8 campus, as well as a store where residents could eat lunch and purchase cigars, fruits,

9 candy and other articles.

10

78. In addition to ensuring residents' access to housing, food and medical

11 care, the Pacific Branch Home also developed the campus to provide educational and

12 vocational activities for the veteran residents. For example, the Pacific Branch

13 Home boasted a library with more than 10,000 volumes and newspapers and

14 periodicals from around the country. The residents grew vegetables and tended

15 orchards and livestock on the campus, supplying their own needs and selling the

16 surplus. The Pacific Branch Home maintained a baseball team and athletic facilities,

17 built a billiard hall for the residents, founded an aviary where residents could spend

18 time, and developed work programs to employ residents around the campus in

19 various capacities. The Pacific Branch Home also had a home band that performed

20 daily, and lectures and movies were regularly hosted on the campus. Residents could

21 attend all events on the campus free of charge. By 1922, approximately 4,000

22 veterans were provided permanent housing at the Pacific Branch Home, with about

23 600 of them under hospital care.

24

79. In 1930, Congress consolidated the National Home with other veterans'

25 programs in the newly established Veterans Administration, the immediate

26 predecessor to DVA. Accordingly, control over the various branch homes, including

27 the Pacific Branch Home, transferred to the Veterans Administration. Title to the

28 land upon which the branch homes were situated was also transferred to the Veterans

30

c' c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 33 of 72 Page ID #:80

1 Administration as the National Home's successor-in-interest to all land to which the

2 National Home held title.

3

80. The Pacific Branch Home campus experienced tremendous

4 development from the 1930s to 1950s, and many of the existing buildings on the

5 WLA Campus were erected during this time. For instance, the Veterans

6 Administration built additional hospital buildings and medical care centers on the

7 campus, in addition to updating and upgrading the hospital and the residences for

8 disabled veterans who continued to reside on the campus. It appears, however, that,

9 beginning in the 1960s and 1970s, new residents were not accepted at the campus,

10 and the structures formerly dedicated to permanent housing were repurposed or fell

11 into disuse. DVA was established as a cabinet-level agency in 1989.

12

81. Today, there are approximately 104 buildings on the WLA Campus.

13 Many of the buildings are vacant, closed, or underutilized. With the exception of

14 geriatric nursing care beds, no permanent housing is available to disabled veterans on

15 the WLA Campus. Instead, VA GLA offers only inpatient hospital care and

16 emergency or transitional shelter beds for disabled and homeless veterans on the

17 WLA Campus, even though it has built 13 houses on the WLA Campus to house VA

18 GLA senior staff. Indeed, in contrast to the original intent of the grantors that the

19 land be used to provide a permanent home to disabled veterans, the mission

20 statement of VA GLA, which now operates and controls the WLA Campus, focuses

21 exclusively on providing medical treatment to veterans and serving as a research and

22 teaching hospital.

23

82. According to VA GLA, the WLA Campus "is perceived to be one of the

24 most valuable parcels of real estate in the western United States." VA GLA MASTER

25 PLAN at 8. Numerous commercial and other non-DVA programs operate on the

26 WLA Campus under leases, memoranda of understanding, revocable licenses, or

27 enhanced sharing agreements, all of which were approved by Defendant Beiter or her

28 predecessors as Director of VA GLA. As a result ofthese land use deals, veterans

31

c c\ Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 34 of 72 Page ID #:81

1 have limited access to or are altogether prohibited from accessing 110 acres of the

2 387-acre WLA Campus, and DVA and VA GLA cannot utilize that land to provide

3 housing to veterans or otherwise expand the services offered to veterans on the WLA

4 Campus. In addition, portions of the land have been offered for rent in connection

5 with events and for various other for-profit uses, including filming for movies and

6 television shows.

7

83. There has not been a public accounting of how much money VA GLA

8 has received under these private deals and where any such revenue has been directed.

9

10

Services Currently Offered by VA GLA at the WLA Campus

11

84. The VA GLA operates the West Los Angeles Medical Center on the

12 WLA Campus, offering care in the following areas: medicine, surgery, psychiatry,

13 physical medicine and rehabilitation, neurology, oncology, dentistry, geriatrics, and

14 extended care. Research and academic medical training are also conducted on-site.

15 In addition to the services offered on the WLA Campus, veterans can access certain

16 outpatient services from VA GLA through three ambulatory care centers and eleven

17 community treatment centers. The WLA Campus contains numerous medical and

18 residential treatment facilities, including inpatient and outpatient health care and

19 mental health care and geriatric long-term care services. Unfortunately, as the

20 experiences of Plaintiffs Valentini, Moraru, Doe, and Romine detailed below

21 demonstrate, the system has been designed not to address the needs of the most

22 severely disabled veterans, and seriously disabled veterans cannot meaningfully

23 access the medical and residential care services to which they are entitled under the

24 VHA benefits program.

25

85. The 953-bed James Wadsworth Hospital provides inpatient and

26 outpatient services to veterans. Inpatient medical services include all acute medical,

27 surgical, rehabilitative, and mental health care for veterans in the Greater Los

28 Angeles area. The hospital is also the primary referral center for cardiology,

32

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 35 of 72 Page ID #:82

1 neurosurgery, and radiation oncology. Outpatient services provided at the hospital

2 include primary care exams, services provided by clinical specialists, immunizations,

3 and preventative screenings.

4

86. VA GLA operates a skilled geriatric nursing facility on the WLA

5 Campus. The 352-bed Community Living Center provides supportive, rehabilitative,

6 and hospice services to elderly veterans, although only 226 of the beds are currently

7 operating.

8

87. VA GLA provides long-term rehabilitative care on the WLA Campus at

9 the West Los Angeles Polytrauma Site. This facility is dedicated to patients with

10 injuries to more than one physical region or organ system resulting in physical,

11 cognitive, psychological, or psychosocial impairments and functional disabilities.

12 Services are provided primarily on an outpatient basis.

13

88. VA GLA offers psychiatric, mental health, and substance abuse services

14 at several facilities on the WLA Campus. Treatment programs are available for

15 alcohol and substance abuse, PTSD, and serious mental illness. VA GLA offers

16 some of these services on an outpatient basis, including counseling, group sessions,

17 medication management, and a day treatment center.

18

89. VA GLA offers no permanent supportive housing to disabled veterans.

19 Temporary shelter services are offered through the 321-bed Domiciliary Residential

20 Rehabilitation and Treatment Program ("Domiciliary"). This program provides

21 temporary shelter beds along with medical, psychiatric, and substance abuse

22 treatment, as well as other therapeutic services. A substantial number of the beds are

23 dedicated to programs focused on substance abuse recovery and not tailored to

24 address serious mental health needs. Veterans are assigned to a Domiciliary bed on a

25 short-term or intermediate basis; the length of stay ranges from 30 days to a

26 maximum of two years. The Domiciliary is structured so that residents generally

27 live in a barracks-style room with two or three other residents, even if they suffer

28 from a mental health condition that makes it difficult or impossible to function in

33

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 36 of 72 Page ID #:83

1 such tight quarters with other people, particularly strangers. Although a limited

2 number of single rooms are available (fewer than 20), veterans generally must "earn"

3 their way into in a single room by maintaining compliance with the treatment

4 program over a period of time. Additionally, veterans assigned to a Domiciliary bed

5 are discharged if they use alcohol or drugs and may be discharged for not fully

6 participating in treatment or group sessions mandated by the Domiciliary staff, or for

7 failing to make sufficient progress toward treatment goals.

8

90. In total, VA GLA operates facilities on the WLA Campus with

9 approximately 1500 beds, of which more than 1150 are dedicated to inpatient

10 hospital care or skilled nursing care for elderly veterans. VA GLA stated in a

11 January 2011 report, however, that it currently operates only 740 beds on the WLA

12 Campus, including 261 acute hospital beds, 158 nursing home beds, and 321

13 Domiciliary beds. Additionally, VA GLA stated in its 2010 Annual Report that it

14 operates only 770 beds, including 226 acute hospital beds, 188 skilled nursing home

15 beds, 52 non-acute hospital beds, and 304 Domiciliary beds. By any available

16 measure, VA GLA presently maintains no more than 321 beds, through the

17 Domiciliary, that could provide housing to veterans who suffer from serious mental

18 illness and therefore need housing to access and benefit from services in a

19 meaningful way. These beds, however, are not made available as permanent

20 supportive housing, but rather are used as temporary shelter with limitations on

21 eligibility that often exclude homeless veterans with serious disabilities. Moreover,

22 of these beds, a substantial number are set aside for substance abuse treatment

23 programs, and these programs are not designed to provide services sufficient or

24 appropriate to address serious mental health conditions.

25

91. In addition to the beds operated by VA GLA, several residential

26 programs are operated by third parties on the WLA Campus, including a geriatric

27 care facility operated by the State of California and shelter and residential treatment

28 programs operated by two non-profit organizations.

34

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 37 of 72 Page ID #:84

1

92. The Veterans Home of California, which opened on the WLA Campus

2 in 2010, is run by the State of California and provides nursing care for veterans over

3 age 62. The 396-bed home includes an 84-bed elderly residential care facility, a

4 252-bed skilled nursing facility, and a 60-bed memory care unit designed for

5 Alzheimer's and dementia patients. At present, this facility is operating at less than

6 10 percent of its maximum capacity.

7

93. The Haven is an emergency housing program run by the Salvation

8 Army of Southern California on the WLA Campus. Its goal is to provide housing

9 and support services to 225 homeless or at-risk veterans. The Haven includes five

10 programs: short-term housing for 35 veterans in Alpha Center, transitional housing

11 focused on substance abuse recovery for 95 veterans at Victory Place, supportive

12 housing for 15 female veterans at Naomi House, a board and care facility for 90

13 mentally ill veterans at Exodus Lodge, and senior housing for 25 male veterans age

14 60 and older.

15

94. New Directions, Inc. operates two residential programs on the WLA

16 Campus. The New Directions' Regional Opportunity Center serves 156 veterans,

17 including 24 beds for detoxification, 24 beds for "Shelter Plus Care" transitional

18 housing for elderly or disabled veterans, and 108 beds for residential substance abuse

19 and mental health programs. The New Directions North provides substance abuse

20 treatment and mental health services in a smaller setting for up to 50 homeless

21 veterans with co-occurring mental illnesses.

22

95. As with the VA GLA-run Domiciliary, virtually all of the emergency

23 and transitional beds operated by the non-profit providers on the WLA Campus

24 require residents to share rooms. Moreover, although the services provided at these

25 facilities are appropriate and necessary for some veterans and the availability of

26 emergency and transitional beds on the WLA Campus is important for some veterans,

27 these programs are neither designed nor intended to meet the needs of veterans who

28 suffer from severe mental disabilities or brain injury. Finally, by their nature as

35

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 38 of 72 Page ID #:85

1 short-term and transitional beds, these programs cannot provide the long-term

2 stability that veterans with severe disabilities require in order to meaningfully access

3 medical and therapeutic services available on the WLA Campus.

4

96. The Salvation Army also operates the 40-unit Westwood Transitional

5 Village on the WLA Campus. Only homeless families are eligible. Approximately

6 150 individuals live in the Village, with families of veterans making up 40 percent of

7 the residential population. The Village is a supportive housing program that

8 provides residents with counseling, case management, educational training,

9 employment placement assistance, medical clinic services, and childcare.

10

97. In addition to the residential beds available on the WLA Campus, VA

11 GLA has contracted with private providers within its service area to secure around

12 1,200 transitional housing beds for veterans. The duration of these programs is

13 between three and eighteen months. VA GLA also contracts with private providers

14 in the community for short-term residential treatment (detoxification) beds. Veterans

15 in these programs have to travel to the WLA Campus or another VA GLA service

16 location if they wish to access services from VA GLA.

17

98. VA GLA also reported that in fiscal year 2010 it received 550 housing

18 subsidy vouchers for veterans. A 2009 report prepared by VA GLA reflected that

19 there were only 1,317 permanent housing beds accessible to veterans in its service

20 area that are "veteran-specific." These beds are not located near the WLA Campus,

21 so disabled veterans, including veterans with serious mental disabilities or brain

22 injuries, who are placed in these beds must travel to the WLA Campus or another

23 VA GLA service location if they wish to access services from VA GLA.

24

99. In short, VA GLA does not offer permanent housing to disabled

25 veterans on the WLA Campus, where the actual medical and other therapeutic

26 services for veterans are delivered. Instead, VA GLA offers only a limited number

27 of emergency or transitional beds and time-limited residential treatment beds on the

28 WLA Campus with qualification requirements that often exclude disabled veterans

36

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 39 of 72 Page ID #:86

1 who are chronically homeless. To the extent that veterans have access to additional

2 transitional housing beds through VA GLA contracts with off-site providers and to a

3 limited stock of permanent housing through VA GLA's housing voucher program,

4 these beds are not located near the WLA Campus and other VA GLA facilities where

5 VHA benefits are offered.

6

7

Plaintiffs Have Been Denied Access to the VHA Benefits

8

Offered by VA GLA Solely by Reason of Their Disabilities

9

100. Although Defendant Shinseki and other senior officials within DVA and,

10 more specifically, Defendant Beiter and other senior officials within VA GLA, are

11 aware that a substantial number of veterans eligible for VHA benefits within the VA

12 GLA service area suffer from severe mental disabilities or brain injuries that require

13 that they have housing in order to meaningfully access effective services, the VHA

14 benefits program offered through VA GLA effectively excludes these veterans or

15 creates substantial and, in some cases, insurmountable barriers to accessing

16 necessary medical, mental health, and other services to which these veterans are

17 entitled under the VHA benefits program.

18

101. As the experiences of Plaintiffs reveal, Defendant Beiter has decided

19 not to serve the most severely disabled veterans by structuring and designing the

20 existing VHA benefits program at VA GLA in a way that does not provide the

21 services necessary to treat Plaintiffs' serious mental disabilities, while providing

22 services that meet the needs of non-disabled veterans and less seriously disabled

23 veterans. Defendant Shinseki has knowingly allowed this situation to continue and

24 refused to exercise his authority to remedy the discrimination. Additionally, as a

25 result of Defendant Beiter's actions and Defendant Shinseki's refusal to act, severely

26 disabled veterans are denied meaningful access to VHA benefits solely by virtue of

27 their disabilities.

28

37

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 40 of 72 Page ID #:87

1 Greg Valentini

2

102. Plaintiff Greg Yalentini was born in Hawaiian Gardens and grew up in

3 Southern California. He is currently 33 years old. He served multiple combat tours

4 in Afghanistan and Iraq. Since coming home, he has been diagnosed with severe

5 PTSD and has struggled with homelessness, substance abuse, and thoughts of suicide.

6

103. Mr. Valentini grew up in Long Beach and Lakewood. He went to

7 Lakewood High School, where he played baseball and basketball. His father, a

8 Marine, instilled in him a sense of duty and service. After working with the

9 Lakewood Department of Parks and Recreation and several other odd jobs, Mr.

10 Valentini decided to join the Army to finance his higher education and enlisted in

11 May 2000.

12

104. Mr. Valentini received basic training in Fort Benning, Georgia, and was

13 selected for further training at Fort Bragg, North Carolina. He was assigned to the

14 82nd Airborne Division and then to the 101st Airborne Division. In October 2001,

15 he was deployed to Afghanistan as part of the initial assault on the Taliban and al-

16 Qaeda after September 11.

17

105. Mr. Valentini's first mission was to take control of the Taliban-held

18 airport at Kandahar, which involved heavy combat. Many of his fellow soldiers

19 were killed. He also witnessed a number of civilian deaths and was tasked with

20 transporting the dead bodies of the civilians.

21

106. In February and March of 2002, Mr. Valentini's unit was part of

22 Operation Anaconda in the Tora Bora Mountains, searching for Osama bin Laden

23 and other elements of the al-Qaeda and Taliban leadership. He took part in

24 significant ground fighting, under nearly constant sniper fire and mortar

25 bombardment. Again, he witnessed the gruesome deaths of numerous civilians,

26 including children.

27

107. In February 2003, Mr. Valentini's unit was taken out of Afghanistan

28 and reassigned as part of the invasion force in Iraq. The unit's assignment was to

38

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 41 of 72 Page ID #:88

1 clear, secure, and hold certain key areas near Karbala while other forces moved

2 toward Baghdad. He again experienced heavy combat, involving the deaths of

3 soldiers and civilians.

4

108. Although his tour of duty was slated to end in March 2003, Mr.

5 Valentini was "stop-Iossed" and continued to serve in combat operations in Iraq for

6 several more weeks. He was honorably discharged in May 2003.

7

109. In recognition of his service, Mr. Valentini has received the Army

8 Commendation Medal, the Army Achievement Medal, the National Defense Service

9 Medal, the Armed Forces Expeditionary Medal, the Army Service Ribbon, and the

10 Expert Marksmanship Qualification Badge with Rifle Bar. As a consequence of his

11 service and experiences in Afghanistan and Iraq, he also developed what was later

12 diagnosed as a severe case ofPTSD.

13

110. On returning to life as a civilian, Mr. Valentini moved back in with his

14 father in the Long Beach area and tried to attend Long Beach City College on the

15 "G.!. Bill." He studied the administration ofjustice with the goal of becoming a

16 police officer, but he had trouble relating to his classmates and controlling his

17 emotions. When someone would comment on the Iraq or Afghanistan wars, for

18 example, he became uncontrollably angry, leading to several altercations.

19

111. Mr. Valentini felt constantly "on alert," as ifhe was in combat. He

20 could not focus on conversations, instead paying attention to his surroundings, as if

21 expecting an ambush. He would repeatedly get up to check if doors were locked and

22 stare compulsively at passing cars to see if anything seemed suspicious. He was

23 paranoid that passers-by were investigating him in some way. Because he felt that

24 he had to be constantly vigilant to protect himself and the people around him, he had

25 trouble sleeping. When he managed to sleep, he had graphic nightmares about things

26 he witnessed during his wartime service.

27

112. Mr. Valentini soon began to think about suicide as a way to escape the

28 constant stress of feeling that he never left the combat zone. Three or four times a

39

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1 week, he spent hours thinking about where and how to kill himself. As he became

2 angrier, the suicidal thoughts increased in frequency. He told those closest to him

3 that he wished he had died in Afghanistan or Iraq; coming home in a flag-draped

4 coffin, he said, would have been better than coming home to a community that did

5 not understand what he was going through.

6

113. In order to deal with the stress, Mr. Valentini started using

7 methamphetamine. The methamphetamine kept him awake, and kept his mind away

8 from thoughts of war. It also made him so exhausted that he was able to fall asleep

9 instead of lying awake thinking about what he saw in Iraq and Afghanistan, and

10 when he slept, he experienced fewer nightmares. Eventually his father ordered him

11 to go to the DVA hospital in Long Beach. A doctor there diagnosed Mr. Valentini

12 with severe PTSD.

13

114. Mr. Valentini managed to remain sober for about 16 months, from 2004

14 to 2006, and continued living with his father during this time. Eventually, however,

15 he again turned to methamphetamine to cope with the recurring violent thoughts and

16 stress, and he left his father's house. In 2006, he began sleeping in a tent near the

17 Long Beach Airport. He collected cans, and paid $1 to shower at the YMCA. When

18 he ran out of money he ate discarded fast food he found on the street, first wiping off

19 the ants, and bathed in the lake by a golf course. He learned which public restrooms

20 he could use in the area. He stole from businesses to pay for the drugs he used to

21 cope with his stress and to take his mind off a reality that embarrassed him.

22 Sometimes other homeless veterans joined him by the airport, sleeping nearby.

23

115. Mr. Valentini continued living on the streets until 2008, when, after

24 several rainstorms, his father agreed to let him move back into the house. When he

25 began using methamphetamine again after four months, however, his father asked

26 him to leave. Mr. Valentini was again homeless, and aside from a few short respites,

27 has been homeless since. He was briefly admitted to the Domiciliary but felt that the

28 staff seemed more interested in finding reasons to kick him out than helping him,

40

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1 which made him more anxious and stressed. In the Domiciliary, he was forced to

2 share a room with three other veterans also struggling with addiction and who also

3 had difficulty interacting with other people. One of those roommates told Mr.

4 Valentini that his brother could supply him with methamphetamine, which made it

5 easier for Mr. Valentini to relapse. That roommate soon died after overdosing on

6 heroin.

7

116. Since October 2008, Mr. Valentini has spent time on the streets, in

8 shelters, in his father's house, in a girlfriend's house, and in jail for petty theft or

9 commercial burglary to obtain money for drugs. He has difficulty managing his

10 PTSD symptoms in these circumstances; he feels constantly in "combat mode,"

11 always on alert, continuously anxious and tense. As a condition of his probation, he

12 was sent to a transitional housing and treatment facility operated by a non-profit

l3 organization, where he is now staying. He is currently clean, although he has

14 experienced several relapses.

15

117. Mr. Valentini is concerned about what will happen after his probation

16 ends and he must leave his transitional housing placement. He wants to concentrate

17 on treating his PTSD and overcoming his addiction, but he finds it difficult to do so

18 without stable housing. Mr. Valentini also finds it difficult to take public

19 transportation, because riding with a group of strangers triggers his PTSD. Prior to

20 taking the bus to the WLA Campus to access treatment, he must spend a half-day or

21 more mentally preparing himself for the trip. Once on the bus, he feels that he must

22 station himself near an exit and maintain a visual map of where the location of

23 everyone and everything. On numerous occasions he has felt so overwhelmed that

24 he had to get off the bus before reaching his destination, causing him to miss

25 important appointments.

26

118. Mr. Valentini's goal is to complete his college degree and obtain a

27 Masters in Social Work at USC, where there is a military social work program. He

28 is currently taking classes at Los Angeles City College; he sits in the back of the

41

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1 classroom, near the exit, where he feels safest. He wants to help other combat

2 veterans avoid what he has gone through. Without stable housing, however, Mr.

3 Valentini feels unable to manage his PTSD and addiction effectively. He continues

4 to worry that he will be on the streets again soon.

5

119. Since coming home after his service in Iraq and Afghanistan, Mr.

6 Valentini has met and befriended many other veterans with serious PTSD who have,

7 like him, medicated themselves with street drugs. He knows that those drugs bring

8 only temporary relief, but he finds it difficult to address his PTSD without a safe,

9 stable place to live.

10

11 Adrian Moraru

12

120. Plaintiff Adrian Moraru is 37 years old. He was born in Romania and is

13 a legal permanent resident of the United States. After his service in Iraq as a Marine,

14 he was diagnosed with PTSD and bipolar disorder.

15

121. Mr. Moraru grew up in Philadelphia, Pennsylvania. He enlisted in the

16 Marines in 1999 at age 26 and trained at Parris Island. He was stationed at

17 Twentynine Palms, California, and served in Okinawa before being sent to Iraq as

18 part of the initial invasion force for OIF.

19

122. In March 2003, Mr. Moraru's unit encountered a chemical pool while

20 on a convoy to Baghdad. He and his fellow Marines were not wearing chemical

21 warfare protection gear and were exposed to the chemical for 10 to 15 minutes.

22 After his unit reached Baghdad, they were sent to Karbala. In April 2003, while

23 assigned to guard an Iraqi bank, he stated in a media interview that he always had to

24 remain "on alert" and needed eyes in the back of his head. He commented,

25 "Sometimes, it seems like I survived the war and I could be shot in the back by a 9-

26 year-old. It was almost easier during the war. At least you knew where the enemy

27 came from. Here, it could be anyone." When his term of service ended after

28 returning from Iraq in June 2003, he held the rank of corporal.

42

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1

123. Mr. Moram lived in Las Vegas until the summer of2005, when he

2 moved to Philadelphia to pursue an employment opportunity. He worked for several

3 months installing satellite dishes for Direct TV and lived with his parents.

4

124. One day in August 2005, Mr. Moram suddenly experienced

5 uncontrollable rage and went into his mother's living room and destroyed the

6 contents of the room while his mother hid in the basement. After that incident, he

7 spent a week or two at a mental hospital.

8

125. Mr. Moram stayed with his sister in Philadelphia for several weeks after

9 leaving the hospital, but she had young children and eventually asked him to leave.

10 Because his parents refused to let him back into their house, he moved into a car

11 parked on the street in front of the house, sleeping there for about six months,

12 through the winter, until around March 2006. During this time he developed boils on

13 his hand and groin that he believes are a result of his exposure to the chemical pool

14 in Iraq. Although he was in tremendous pain, his paranoia prevented him from

15 seeking medical treatment. No one from DVA contacted Mr. Moram or his family

16 during this time, or attempted to connect him to any services that might help him.

17

126. Because Mr. Moram continued to argue with his father, his father no

18 longer allowed him to sleep in the car. Mr. Moram flew to Las Vegas, where two of

19 his friends from the Marines lived. One of the friends arranged ajob for him at a 7-

20 Eleven. Due to his mental state, however, he was unable to work more than one pay

21 period. He took the $430 he earned and took the bus to San Diego, though he had no

22 contacts in the city. After exhausting the last of his money in less than a week, he

23 began collecting cans and eating out of trash bins around Ocean Beach. He stayed in

24 San Diego for about eight months. During that time he lost his ID and his green card

25 expired, and he had no money to renew it. He also developed a large boil on his

26 back that he believes is a result of exposure to the chemicals in Iraq. He stopped

27 drinking after getting the boil.

28

127. After eight months in San Diego, Mr. Moram's friend in Las Vegas

43

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1 wired him enough money to take the train to Los Angeles. Things deteriorated

2 further upon his arrival there. He stopped collecting cans and obsessively marched

3 up and down Wilshire Boulevard between downtown and the beach, walking up to

4 20 miles a day and collapsing to sleep when he could not walk further.

5

128. Mr. Moraru eventually stopped marching in Beverly Hills. One day, he

6 was struck with the impulse to pick up a chain that was used to secure chairs on a

7 restaurant patio. He does not know what possessed him to take the chain. Four

8 police officers approached him and told him to drop it. When he stood up with a

9 stick in his hand, they subdued and arrested him. During his subsequent arrest and

10 booking, he told everyone that he was God.

11

129. As a part ofa plea deal, Mr. Moraru was released for 30 days served in

12 county jail and received three years probation. He then walked to Westwood and

13 slept behind the Equinox health club for about three months. During this time,

14 because he had stopped drinking, he was able to save $160.

15

130. Around August 2009, Mr. Moraru went back to Las Vegas, where his

16 friend helped him get a ticket to Philadelphia. He moved back in with his parents,

17 but had trouble staying in a house with other people, and they again asked him to

18 leave. He then moved his remaining belongings from his parents' house to a lot

19 behind a Wawa convenience store, where he slept. He told passers-by that he owned

20 the store. When the police forced him to leave, he moved to another Wawa location.

21 He does not know what possessed him to stay near Wawa stores.

22

131. After some time, Mr. Moraru's parents allowed him to move into their

23 garage. His sister helped him renew his green card, because he could not afford the

24 $375 renewal fee. He never went to DVA facilities in Philadelphia, because he did

25 not believe there was anything wrong with him.

26

132. After managing to save $90, Mr. Moraru flew back to Los Angeles in

27 August 2010 and again slept behind the Equinox. The next month he suffered a

28 violent seizure. Several other homeless residents of the area, whom he had gotten to

44

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1 know, suggested he visit the WLA Campus. After arriving there early in the

2 morning, he waited hours to be seen and saw other vets with mental disabilities leave

3 because they could not wait any longer. He briefly saw a doctor who again told him

4 to sit and wait. After waiting until 4:30 p.m., he left.

5

133. Mr. Moraru later visited the WLA Campus again and forced himself to

6 wait for his name to be called. He received a physical, was referred to see a

7 psychiatrist, and was then placed in The Haven, where had to share a room with

8 three other residents. Moreover, treatment at The Haven focused on alcoholism and

9 drug addiction, but he had stopped drinking and did not use drugs. VA GLA staff

10 did not infonn him of other options, if any existed. After ten days at The Haven, he

11 assaulted another resident and was forced to leave the program.

12

134. He again became homeless, this time in Abbot Kinney park in Santa

13 Monica, and his condition continued to deteriorate. He spent his entire day cleaning

14 up the park, picking up cigarette butts and other garbage.

15

135. Mr. Moraru continued to try to attend his appointments at the WLA

16 Campus with Dr. McKenna, a psychiatrist. She diagnosed him with PTSD and

17 bipolar disorder. He saw Dr. McKenna about once every month to manage his

18 seizure medication. He received no medication for his PTSD or his bipolar disorder.

19

136. At one point, a VA GLA employee asked Mr. Moraru ifhe wanted

20 housing. He replied that he did not need housing because he was "living" in Santa

21 Monica. His mental condition prevented him from seeing anything wrong with

22 sleeping in the park and picking up garbage all day. In addition, his bad experience

23 at The Haven left him with a negative impression of housing offered through VA

24 GLA.

25

137. About six weeks ago, Mr. Moraru picked up some pipes in the park that

26 he thought were garbage. Someone told him to put them down. He became angry,

27 told the man that he would beat him, and threw the pipes in a dumpster. The next

28 day, he was arrested and charged with robbery and criminal threat. Mr. Moraru

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1 accepted a plea deal to participate in a transitional housing program run by a non-

2 profit organization in Hollywood for one-year as a condition of probation. He has

3 been staying there for about a month.

4

138. Mr. Moraru wants a private apartment that will allow him to go to the

5 WLA Campus for appropriate treatment and medications. He does not know what

6 he will do when he finishes the transitional housing program, and he is afraid that if

7 he has to leave the program he will have nowhere to go but back to living on the

8 streets, where his mental health will continue to deteriorate.

9

10 Jane Doe

11

139. Plaintiff Jane Doe was born in Pasadena, California. She is a veteran

12 and is currently homeless. VA GLA psychiatrists have diagnosed her with PTSD

13 related to military sexual trauma.

14

140. Ms. Doe's family has deep ties to the military, and five of her six

15 brothers served in the military. Her brother Donald was a Marine and served in
16 Vietnam. He died in 2005. Her brother George served in Vietnam and was a pow.

17 He used drugs after the war and died in 2005. Her brother Bill served seven tours in

18 Vietnam. He has addiction issues and a 100 percent service-connected disability.

19 Her brother Phillip served in the Gulf War and now has PTSD. He developed

20 asthma from CS gas exposure and now uses drugs. Like Ms. Doe, he is homeless

21 and lives in Los Angeles. Her brother Hamilton served in the Gulf War.

22

141. Ms. Doe joined the military after obtaining her GED at the age of 16,

23 planning to make a career of it. In 1974, she went to Fort Jackson, South Carolina

24 for basic training. She then completed Advanced Individual Training in Radio

25 Communications at Fort Dix, New Jersey. In the barracks, she was attacked and

26 raped by a group of women. She was raped again by a mess sergeant in the back seat

27 of military vehicle while another man looked on.

28

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1

142. In December 1974, Ms. Doe was sent to Germany and worked as a

2 radio operator. She returned to the United States, was briefly stationed at Fort Sam

3 Houston in Texas, and was then sent back Germany. While in Germany, she was

4 again sexually assaulted by a group of men. After that incident, she was hospitalized

5 in a psychiatric care unit. Because she felt ashamed, she did not report the sexual

6 assaults at the time.

7

143. Ms. Doe's mother became ill in 1980, and she received a humanitarian

8 discharge to help take care of her. She obtained a job with Bank of America in the

9 collections department, but quit because ofjob circumstances that exacerbated her

10 PTSD symptoms. She then held various security jobs, but had difficulty keeping

11 them because she frequently lost her temper, which is a consequence of her PTSD.

12 During this time, however, she did not realize that she suffered from PTSD.

13

144. In 1997, Ms. Doe lost her security job, and one of her brothers drove her

14 to the WLA Campus because she was having a mental breakdown. She was

15 immediately committed to the psychiatric ward and placed on suicide watch. This

16 was the first time she received services from DVA.

17

145. Ms. Doe was diagnosed with PTSD secondary to military sexual trauma.

18 Because there was no women's clinic at VA GLA at the time, she was transferred to

19 the Domiciliary. At that time, there were only five or six other women there, but she

20 had to share a room with three other women. She was in constant fear of being

21 attacked. When she was able to sleep, she would wake up with nightmares.

22

146. There were no women's therapy groups at the Domiciliary, so Ms. Doe

23 had to participate in group sessions for addiction, even though she had no addiction

24 issues. The sessions did not help with her PTSD, because the sessions focused only

25 on addiction and the facilitators never discussed flashbacks or nightmares, which

26 were two of her main problems. Ms. Doe also met once a week with a psychologist,

27 Dr. Vivian Gold, who worked well with her. During these sessions, she was able to

28 talk about her PTSD symptoms. She eventually was transferred to a single room,

47

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1 which lessened her anxiety and fear considerably. As a result of her sessions with Dr.

2 Gold and having a safe, secure place to live, Ms. Doe felt like she was starting to

3 make progress.

4

147. But three or four months later, a board at the VA GLA created a

5 discharge summary. Ms. Doe knew that she was not yet in a position to live

6 successfully on her own. She told the board that she was still having intense

7 flashbacks about her trauma, but they nonetheless forced her to leave sometime in

8 1999.

9

148. When Ms. Doe left the Domiciliary, there were no transitional services

10 so she was told to go to Skid Row. She moved into a room at the Boyd Hotel for

11 $250 per month. She never felt safe there, because she could access a bathroom only

12 by leaving her room and walking down a public hallway and there were people

13 living in cardboard boxes around the Boyd Hotel and lots of open drug use in and

14 around the hotel. Although she tried to continue seeing Dr. Gold, VA GLA told her

15 that Dr. Gold worked only with people living at the Domiciliary. She instead

16 received psychological services at the mental health day treatment building on the

17 WLA Campus.

18

149. Being forced to leave the WLA Campus for a Skid Row hotel was a

19 major setback in Ms. Doe's treatment. She did not feel secure even in her own bed

20 and began having difficulty sleeping and experiencing acute anxiety. She had to take

21 the bus to the WLA Campus for counseling, but traveling on the bus was difficult

22 because her PTSD caused her extreme anxiety when she was around crowds of

23 strangers. Consequently, traveling to the WLA Campus to access mental health

24 services was a problem.

25

150. Ms. Doe then moved back to Pasadena, but when her brother kicked her

26 out of the house, she lived out of her car. She continued to suffer from severe PTSD

27 symptoms, because she had not received appropriate treatment or support after she

28 was discharged from the Domiciliary. She did not know where to tum for help.

48

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1

151. In 2008, Ms. Doe tried to go back to the Domiciliary but was told it had

2 no programs for women with PTSD. Instead, she was referred to The Haven, a

3 transitional shelter on the WLA Campus. She stayed at Naomi House, a women's

4 shelter on the third floor of an otherwise all-male building. As a rape victim, it was

5 very difficult for her to leave and to enter the building with all the men around.

6 Additionally, there were no programs to meet her PTSD needs.

7

152. Eventually, the Domiciliary began a program for women with PTSD,

8 and Ms. Doe was accepted. By the time she transferred there, however, VA GLA

9 had replaced the PTSD program with an addiction recovery program. When she and

10 a few other women with PTSD who enrolled in the program complained, VA GLA

11 simply changed the title to 'a "recovery" program without changing the content or

12 therapeutic approach. The mandated group sessions focused exclusively on drug and

13 alcohol addiction, and her therapist was a drug addiction specialist, with no training

14 in military sexual trauma or PTSD. Her third session with the addiction specialist

15 focused on discharge planning, which made her feel as though she was being pushed

16 out the door as soon as she had arrived, regardless of whether she was doing better or

17 receiving the care she needed.

18

153. The Domiciliary tried to discharge her after only four months, but Ms.

19 Doe persuaded the staff to extend her stay by two months. She had difficulty

20 concentrating on her treatment because she worried about where she would live after

21 the two-month extension ended.

22

154. Ms. Doe was eventually discharged from the Domiciliary because she

23 did not take a mandatory urine-analysis test. She simply forgot to show up for the

24 test, which should not have been surprising to the staff because her records reflect

25 that short-term memory loss is one symptom of her PTSD.

26

155. Ms. Doe told the staff that she did not feel safe on the streets and had

27 not made enough progress to feel stable. The only options she was offered were a

28 shared room at New Directions or psychiatric hospitalization, and she rejected the

49

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1 former because of the shared-room requirement and the latter because she did not

2 believe it would be helpful. About an hour before she was supposed to leave, she

3 was handcuffed and taken to the mental lock-up ward, where she stayed overnight on

4 a psychiatric hold. The doctors at the ward discharged her the next day because she

5 did not meet the criteria for involuntary commitment. VA GLA referred her to the

6 Salvation Army Bell Shelter, a large dormitory-style homeless shelter, but her PTSD

7 prevented her from staying in such a setting.

8

156. Two days later, Ms. Doe learned that a slot opened for her at a

9 specialized DVA program in Menlo Park for women who experienced sexual trauma.

10 She was denied admission, however, because she did not meet the admission

11 requirement of having a stable place to live after completion of the program.

12

157. Ms. Doe is currently living with her sister-in-law and continuing to see

13 a therapist at the WLA Campus. Her unsettled living situation exacerbates some of

14 her PTSD symptoms, which undermines her treatment. She continues to have

15 flashbacks and nightmares and is embarrassed when people see her with those

16 symptoms. When she does not have a private space, she tries to repress her trauma

17 so the symptoms do not surface. She knows this is not healthy and makes it harder

18 for her to be open in her treatment sessions.

19

158. Ms. Doe wants to find her own place that is safe and secure and will

20 provide her ready access to her doctor at the WLA Campus so that she can receive

21 the treatment she needs. She is trying to find a place to live in Los Angeles, but it

22 has been difficult to find an apartment because her credit history is poor after being

23 homeless for four years. VA WLA has not offered her any permanent housing.

24

25 Chris Romine

26

159. Plaintiff Chris Romine grew up in Madera, California. At 16 he was

27 shot in a drive-by shooting that severed his femoral artery. He graduated from high

28 school in Madera and then worked in construction.

50

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1

160. In order to seek a better life, Mr. Romine joined the Army at age 19. He

2 was trained to be a military police officer at Fort McClellan, Alabama. Following

3 training, he was assigned to Fort McClellan itself. Part of his assignment was to

4 work as an undercover military investigator, assigned to purchase drugs being sold

5 on the base. In the course of that duty he was exposed to drugs and drug use for the

6 first time. He later received Special Reaction Team (SRT) training at Fort Polk,

7 Louisiana, similar to that provided to civilian SWAT police officers.

8

161. In March 2003, Mr. Romine's unit was sent to Iraq as part of the initial

9 invasion force in OIF. His first assignment was guarding prisoners of war at Camp

10 Bucca and providing escort to convoys between Camp Bucca and Basra. In the

11 course of his convoy protection duties, he saw two close friends die in vehicles in

12 front of his. One was crushed by his vehicle, and the other burned to death.

13

162. Mr. Romine was honorably discharged in 2003 and returned to the

14 United States. He remained very troubled by what he experienced and began, for the

15 first time in his life, to take hard drugs, primarily illicitly obtained Vicodin and

16 Oxycodone, in order to dull his memories and to become numb to his daily life.

17

163. Unable to adjust to civilian life, Mr. Romine reenlisted in the U.S. Army

18 in 2005. Given a choice of either a substantial monetary reenlistment bonus or his

19 choice of assignments, he chose to be assigned to the Special Warfare Center at Fort

20 Bragg, North Carolina, for training as a special operations soldier. A mistake by his

21 recruiter resulted in his being rejected from the Special Warfare Center because he

22 had not completed a necessary screening course. He was then reassigned to a

23 military police brigade attached to the 108th Airborne Division and deployed back to

24 Iraq.

25

164. Once back in Iraq, Mr. Romine continued to treat what was later

26 diagnosed as PTSD by self-medicating with drugs, primarily Percoset, which he

27 bought from Army medics. In addition to convoy protection and the constant

28 heightened vigilance that it required, his unit was assigned to "clean up duty"

51

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1 following roadside bomb attacks on U.S. forces. This duty included dealing with the

2 body parts and gore that remained after the dead and wounded U.S. soldiers were

3 removed. In addition to using drugs, Mr. Romine began drinking heavily, in order to

4 cope with his disability. On two instances, he was found drunk on duty. As a result,

5 he was discharged again in 2007, this time under other than honorable conditions.

6

165. Mr. Romine returned to Huntington Beach to live with his uncle, also a

7 military veteran. Seeing his condition, his uncle insisted that he go to the Long

8 Beach DVA hospital for treatment, which he did. He was drug free for a time, but

9 did not get effective treatment for his PTSD and relapsed. He was homeless on the

10 streets of Santa Monica and West Los Angeles for a time. Since that time, he has

11 tried to obtain housing and services through nearly every facility available at the

12 WLA Campus, but he has not been able to obtain permanent housing.

13

166. Mr. Romine continued to experience intermittent periods of drug use

14 and sobriety, including a period of about four months living with other veterans in a

15 street encampment near the WLA Campus. A variety of petty offenses resulted in

16 his incarceration in the jails of both Los Angeles and Orange Counties. During his

17 last incarceration, a DVA employee arranged for his placement at a transitional

18 housing program. This is the most suitable living arrangement Mr. Romine has had

19 so far, but it is still a temporary living arrangement. Until he achieves some certainty

20 in his housing and living arrangements over the longer term, Mr. Romine does not

21 believe that he will be able to address either his PTSD or the addictions that resulted

22 from it.

23

24 Permanent Supportive Housing Is a Reasonable Accommodation to Ensure

25 Plaintiffs Have Meaningful Access to Services to Which They Are Entitled

26

167. Plaintiffs' experiences demonstrate that Defendants have discriminated

27 and will continue to discriminate against Plaintiffs and other veterans suffering from

28 serious mental disabilities solely by virtue of their disabilities. Defendants have

52

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1 denied Plaintiffs meaningful access to services offered by VA GLA in numerous

2 ways, which include, but are not limited to:

3 • Imposing conditions for access to or continued participation in programs or

4

services that Plaintiffs cannot satisfy as a result of symptoms or characteristics

5

of their disabilities;

6 • Providing services or treatment in settings that Plaintiffs are unable to access

7

as a result of symptoms or characteristics of their disabilities;

8 • Failing to provide sufficient assistance to Plaintiffs when their symptoms or

9

characteristics of their disabilities prevent them from identifying available

10

services from which they would benefit, or applying for or otherwise

11

navigating the intake, screening, or referral processes to access those services;

12 • Failing to provide treatment and support that is necessary for the appropriate

13

treatment of Plaintiffs' disabilities, while providing appropriate treatment and

14

support to veterans who do not have disabilities or who suffer from different

15

disabilities; and

16 • Failing to provide the reasonable accommodation of permanent supportive

17

housing to those veterans who, by reason of their mental disabilities, are

18

unable to meaningfully access appropriate treatment without it.

19

168. Scholars and researchers have reached the conclusion that permanent

20 supportive housing is the only approach that consistently allows severely disabled

21 individuals like Plaintiffs to access a broad array of social services, including 22 medical care and mental health services.38 Accordingly, offering permanent

23 supportive housing is a necessary and reasonable accommodation to ensure that

24 Plaintiffs and other veterans with serious mental disabilities and brain injuries can

25 meaningfully access the VHA benefits that they are entitled to receive from VA

26

38 See generally U.S. DEP'T OF HEALTH AND HUMAN SERV., MEDICAID AND PERMANENT

SUPPORTIVE HOUSING FOR CHRONICALLY HOMELESS INDIVIDUALS: LITERATIJRE SYNTHESIS AND
27 ENVIRONMENTAL SCAN (2011), available at http://aspe.hhs.gov/daltcp/reports/20111ChrHomlr.pdf

28 (summarizing dozens of published and unpublished studies demonstrating effectiveness of

permanent supportive housing and its economic benefits).

53

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 56 of 72 Page ID #:103

1 GLA.

2

169. As noted above, numerous studies have demonstrated that permanent

3 supportive housing is cost-effective, underscoring its reasonableness as an

4 accommodation for seriously disabled veterans. In addition to those studies, which

5 measure cost-savings across agencies, several studies have focused on the net

6 economic impact only for the agency providing the permanent supportive housing.

7 This research demonstrates that systems like VA GLA that provide medical care,

8 substance abuse treatment, and emergency and transitional beds are likely to achieve

9 substantial cost savings as a result of moving to a permanent supportive housing

10 model for chronically homeless clients, for several reasons. First, once placed in

11 permanent supportive housing, tenants' reliance on emergency shelters diminishes to

12 almost zero.39 Second, there is a significant reduction in tenants' reliance on 13 emergency room and acute medical services.4o By shifting tenants away from

14 emergency inpatient treatment, permanent supportive housing puts its residents in a

15 better position to engage in more regular and less expensive outpatient and

16 preventative treatments. Finally, reliance on substance abuse treatment centers and 17 detoxification facilities significantly decreases for supportive housing participants.41

18

170. Defendant Shinseki recently acknowledged that permanent supportive

19 housing is a critical component of services that need to be available to seriously

20 disabled veterans so that they can access needed mental health and therapeutic

21
39 See, e.g., MELANY MONDELLO, ET AL., COST OF HOMELESSNESS: COST ANALYSIS OF 22 PERMANENT SUPPORTIVE HOUSING (2007), available at 23 http://www.mainehousing.orgIDocumentslHousingRgJorts/CostOfHomelessness.pdf (finding 98
percent reduction in shelter visits among 99 tenants ofMaine program).

24

40 See, e.g., Tia E. Martinez & Martha R. Burt, Impact ofPermanent Supportive Housing on

the Use ofAcute Care Health Services by Homeless Adults, 57 PSYCIllATRIC SERVICES 992 (2006)

25 (finding total number of emergency room visits for sample decreased by 56 percent and total

hospital admissions decreased by 44 percent).

26

41 See THOMAS L. MOORE, ESTIMATED COST SAVINGS FOLLOWING ENROLLMENT IN TIlE

COMMUNITY ENGAGEMENT PROGRAM: FINDINGS FROM A PILOT STUDY OF HOMELESS DUALLY

27 DIAGNOSED ADULTS (2006), available at

28 http://documents.csh.orgidocuments/policy/PortlandCostStudy.pdf (finding 93 percent decrease in

drug and alcohol treatment nights for residents of Oregon project).

54

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 57 of 72 Page ID #:104

1 servIces. He said, "Providing assistance in mental health, substance abuse treatment,

2 education and employment goes hand-in-hand with preventive steps and permanent

3 supportive housing." He continued, "We continue to work towards our goal of

4 finding every veteran safe housing and access to needed services." Furthermore, as

5 noted above, DVA recently acknowledged that permanent supportive housing is an

6 effective approach to ensuring homeless veterans with mental disabilities are able to

7 access the services they need to treat their conditions.

8

9

Providing Permanent Supportive Housing through the WLA Campus

10

Is Especially Reasonable

11

171. Providing permanent supportive housing to veterans who suffer from

12 serious mental disabilities or brain injuries is all the more reasonable within VA

13 GLA's service area for several reasons.

14

172. First, the WLA Campus has considerable available land and buildings

15 that could be adapted to provide permanent supportive housing. Dozens of buildings

16 on the WLA Campus are vacant or underutilized, and some of these buildings

17 formerly provided permanent housing to veterans. In fact, Defendant Beiter and

18 other VA GLA officials identified three buildings - Building 205, Building 206, and

19 Building 209 - as buildings that could be made available for some homeless housing.

20 Although VA GLA officials announced in June 2010 a $20 million appropriation

21 from DVA to renovate Building 209, Defendant Beiter and other VA GLA officials

22 have taken no concrete steps to begin that project. Nor have they released any plans

23 related to the building design or identified the therapeutic approach or scope of

24 housing and supportive programming that would be offered if they do, in fact,

25 renovate Building 209. Additionally, they have taken no steps to recruit and hire

26 appropriate staff for such a facility. VA GLA officials have stated that the Building

27 209 renovation project would take at least four years, and VA GLA acknowledged in

28 January 2011 that VA GLA is "not commit[ed] to any specific project, construction

55

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 58 of 72 Page ID #:105

1 schedule, or funding priority" for the WLA Campus and that "[e]ach development

2 proposal must be approved individually by [Defendant Beiter], the [VISN Director],

3 and national VA officials." VA GLA MASTER PLAN at 10.

4

173. Additionally, VA GLA recently announced Project 60, which is

5 modeled on the County of Los Angeles' Project 50. As part of Project 60, VA GLA

6 will "collaborate with Federal, County and local government and non-profit agencies

7 to move 60 of the most vulnerable, chronically homeless Veterans off the streets and

8 into permanent supportive housing," and Project 60 participants will get housing "no

9 matter how ready they are to receive mental health and substance abuse services - or

10 despite any treatment failures and setbacks.,,42 Accordingly, Defendant Beiter does

11 not need to create a new program or substantially alter existing services to provide

12 permanent supportive housing as an accommodation for Plaintiffs and similarly

13 situated veterans.

14

174. Finally, the federal government acquired the land that now makes up the

15 WLA Campus under the 1888 Deed, and it is clear that the donors intended that the

16 government use the land to establish and permanently provide a home to disabled

17 veterans. Citizens donated the land precisely so that the federal government could

18 provide permanent housing and care for disabled veterans like Plaintiffs.

19

20 Current Commercial Uses of the WLA Campus Preclude Use of that Land to

21 Provide Housing and Care for Plaintiffs and Other Seriously Disabled Veterans

22

175. Beginning at least as early as 1989, VA GLA began leasing portions of

23 the WLA Campus to private entities and has since entered into a range of land use

24 agreements, including long- and short-term leases, memoranda of understanding,

25 revocable licenses, and enhanced sharing agreements, with both for-profit and not-

26 for-profit entities. Additionally, VA GLA transferred ownership of 13.5 acres to the

27

42 VA GREATER Los ANGELES HEALlHCARE SYSTEM, PROJECT 60 FACT SHEET, available at

28 http://www.losangeles.va.gov/documents/ll-02-15 Fact-Sheet Project 60.pdf(last accessed May

30,2011).

56

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 59 of 72 Page ID #:106

1 State of California to construct the 396-bed geriatric care facility that the State now

2 operates on the WLA Campus. As of January 2011, VA GLA acknowledged 21

3 current land use agreements. See VA GLA MASTER PLAN at 36-37.

4

176. VA GLA's hospital complex is located on the southern portion ofWLA

5 Campus. VA GLA has leased approximately 10 acres near the hospital to Enterprise

6 Rent-A-Car and Tumbleweed Transportation, a charter bus operator, for vehicle

7 storage. Since 2001, VA GLA also has allowed Westside Services, LLC to operate

8 parking areas throughout the WLA Campus as remote parking sites for nearby

9 businesses. The American Red Cross has a 50-year lease on a parcel of land near the

10 hospital and has operated its district headquarters there since 1989.

11

177. Large sections of the central portion of the campus are also unavailable

12 for veteran housing or services as a result of private land use agreements.

13 For example, Sodexho Marriott operates a laundry facility in Building 224 and an

14 adjacent water softening unit for processing linen from surrounding hotels.

15 Richmark Entertainment contracted with VA GLA to operate the Wadsworth Theatre,

16 which was built in 1939 as an entertainment center for veterans, and the Brentwood

17 Theater. Veterans are charged full price for all events held at those theaters. UCLA

18 utilizes the Jackie Robinson Baseball Stadium on the east side of the WLA Campus.

19 An energy company has operated active oil wells on approximately 2.5 acres since

20 1988, and 1.5 acres are subject to an enhanced sharing agreement with TCM, LLC to

21 operate a farmer's market. Additional land on this portion of the campus is used by

22 Westside Services, LLC as remote parking for non-DVA programs.

23

178. In the northern area of the campus, the overwhelming majority of land

24 is unavailable for use by veterans or by VA GLA to provide services or housing to

25 veterans as a result of private land agreements. The City of Los Angeles built

26 Barrington Park, a 12-acre property that includes a parking lot, a baseball diamond,

27 athletic fields, and a dog park. Brentwood School utilizes 20 acres, on which it has

28 constructed athletic fields, a track, tennis courts, and a swimming pool, under an

57

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 60 of 72 Page ID #:107

1 enhanced use agreement. Two soccer clubs use MacArthur Field, where veterans

2 once played softball, and an adjacent parking lot.

3

179. These uses are plainly inconsistent with the intent of the 1888 Deed that

4 the federal government establish and permanently maintain a home for disabled

5 veterans, because they are not directly related to providing housing or medical and

6 other therapeutic care to disabled veterans.

7

180. Despite repeated efforts by Plaintiff Barrie and her family and several

8 veteran, community, and philanthropic groups to obtain information about these land

9 deals, there has not been a public accounting of how these deals were reached, what

10 their details are, how much revenue is generated by them, and how such revenue, if

11 any, is used. In fact, the total fiscal year budget reported in VA GLA's 2010 Annual

12 Report has an asterisk next to it, indicating that the figure does not include

13 "alternative revenue."

14

181. Additionally, when DVA transferred the land to the State of California

15 for the operation of the nursing care facility, the deed included a provision specifying

16 that title would revert to the federal government if the State ceased using the land as

17 a nursing home or for domiciliary purposes. VA GLA characterized this provision

18 as requiring the State of California to use the land "as a nursing home or for

19 domiciliary uses, as agreed upon in the original deed." VA GLA MASTER PLAN at 10.

20 Even though VA GLA blatantly uses portions of the WLA Campus for purposes

21 plainly inconsistent with the original 1888 Deed, DVA imposed on the State of

22 California the obligation to use the parcel transferred to it consistent with the original

23 intent, at the risk of losing title to the land.

24

25 Defendants Shinseki and Beiter Have Personal Knowledge that VA GLA's

26 Current Practices Are Discriminatory and that the WLA Campus Is Being

27 Misused and the Direct and Specific Authority to Remedy the Violations

28

182. Defendant Shinseki has personal knowledge about the chronic

58

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 61 of 72 Page ID #:108

1 homelessness crisis among veterans. For example, numerous news accounts reflect

2 that in November 2009 Defendant Shinseki acknowledged the serious problem of

3 homelessness among veterans, and in particular among veterans recently returned

4 from Iraq and Afghanistan. Additionally, in 2010, the U.S. Interagency Council on

5 Homelessness (USICH), of which Defendant Shinseki is a member, released a report

6 on homelessess. The report included a discrete section on veteran homelessness,

7 which included quotes from Defendant Shinseki. That section of the report

8 described the number of homeless veterans and the number of chronically homeless

9 veterans and acknowledged that veterans were overrepresented in the homeless

10 population. Defendant Shinseki also issued a press release in February 2011

11 announcing that DVA and the U.S. Department of Housing and Urban Development

12 had released a supplement to a 2009 report to Congress on homeless, and that report

13 included substantial data on the number of homeless veterans and chronically

14 homeless veterans in the United States.

15

183. Defendant Shinseki also has personal knowledge about the necessity of

16 permanent supportive housing for this population to meaningfully access the VHA

17 services to which they are entitled. For example, when DVA and the U.S.

18 Department of Housing and Urban Development released the supplement to the 2009

19 report to Congress on homeless in February 2011, Defendant Shinseki stated,

20 "Providing assistance in mental health, substance abuse treatment, education and

21 employment goes hand-in-hand with preventive steps and permanent supportive

22 housing." He continued, "We continue to work towards our goal of finding every

23 veteran safe housing and access to needed services." Additionally, the 2010 USICH

24 report noted that, "[l]ike other populations, the complexity of navigating systems

25 makes it difficult for Veterans to get their needs met," and that "[v]eterans

26 experiencing chronic homelessness benefit from ... increasing access to permanent

27 supportive housing."

28

184. Defendant Shinseki and his predecessors as Secretary ofDVA have also

59

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 62 of 72 Page ID #:109

1 received dozens of letters over the years drawing attention to DVA's failure to

2 provide appropriate services at the WLA Campus to homeless veterans suffering

3 from mental disabilities, as well as the misuse of the WLA Campus. For example,

4 local veterans groups and activists have sent Defendant Shinseki dozens of letters

5 demanding appropriate housing and services for disabled veterans on the WLA

6 Campus. In fact, Defendant Shinseki received correspondence from local veteran

7 and activist Robert Rosebrock in December 2010 that not only addressed the misuse

8 of land at the WLA Campus, but also specifically mentioned one homeless veteran's

9 circumstances and his need for stable housing in order to meaningfully access

10 services at the WLA Campus. Additionally, in January 2011, the law firm Dilworth

11 Paxson LLP sent Defendant Shinseki a letter and a detailed report prepared by the

12 Metabolic Studio regarding the history of the WLA Campus and noting DVA's

13 breach of its fiduciary obligation under the 1888 Deed. The General Counsel for

14 DVA responded shortly thereafter with a letter contending DVA was fulfilling its

15 obligations under the 1888 Deed. Plaintiff Barrie also has sent numerous letters to

16 Defendant Shinseki's predecessors regarding VA GLA's misuse of the WLA

17 Campus for purposes unrelated to providing housing or supportive services to

18 disabled veterans and received at least one response from the Office of the Secretary

19 of DVA.

20

185. Defendant Shinseki, as Secretary of DVA, also has authority to

21 promulgate regulations that guide DVA's and VA GLA's development and

22 implementation of programs, including VHA benefits. Although aware that

23 homeless veterans with serious mental disabilities and brain injuries cannot

24 meaningfully access medical, mental health, and other services available under the

25 VHA benefits program, Defendant Shinseki has not promulgated regulations

26 requiring that DVA or its health systems, including VA GLA, provide permanent

27 supportive housing as a reasonable accommodation.

28

186. Thus, as a cabinet-level secretary with responsibility for ensuring DVA

60

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 63 of 72 Page ID #:110

1 complies with federal anti-discrimination laws and its fiduciary obligations,

2 Defendant Shinseki has specific knowledge of the violations detailed in this

3 Complaint and direct responsibility and authority to provide the remedies sought in

4 this Complaint, but he has failed to exercise that authority.

5

187. Defendant Beiter has personal knowledge that VA GLA serves

6 numerous veterans who suffer from serious mental disabilities and are homeless. As

7 Director of VA GLA, Defendant Beiter is responsible for ensuring that VA GLA

8 complies with all DVA regulations and policies, including the requirements that it

9 convene an annual meeting with community partners to assess the need for services

10 to homeless veterans and that it provide survey results to DVA on the homeless

11 population within its service areas annually. Defendant Beiter authorized VA GLA

12 to release its 2009 homelessness survey results, which reflected that more than 8,000

13 homeless individuals resided within VA GLA's service area.

14

188. Defendant Beiter has personal knowledge that homeless veterans within

15 VA GLA's service area are denied meaningful access to the services currently

16 offered by VA GLA. For example, officials from the City of Santa Monica have met

17 with Defendant Beiter and other senior VA GLA officials on numerous occasions

18 and argued that VA GLA is failing to provide homeless veterans who reside within

19 the geographic limits of Santa Monica with meaningful access to VHA services.

20

189. Additionally, VA GLA prepared and published a report on January 11,

21 2011 that purported to summarize the history and current scope of services offered

22 by VA GLA for homeless veterans. This report acknowledged "there is a sub-

23 population of Veterans who have serious chronic mental health and substance abuse

24 problems: these Veterans require intensive treatment beyond the scope current

25 homeless transitional housing programs." The report further acknowledged that VA

26 GLA did not currently offer any programs that meet the needs of this group. As the

27 Director of VA GLA, Defendant Beiter has final authority to approve the preparation

28 and release of reports such as the January 11, 2011 homelessness report and is aware

61

c c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 64 of 72 Page ID #:111

1 of the contents of that report.

2

190. VA GLA also recently launched Project 60. Through this initiative, VA

3 GLA plans to target 60 vulnerable, chronically homeless veterans and connect them

4 with permanent supportive housing, including the supportive resources and services

5 necessary to stabilize and improve medical and mental health. The impetus behind

6 the development and planned implementation of Project 60 was the recognition that

7 chronically homeless veterans cannot meaningfully access services offered by VA

8 GLA. As the Director of VA GLA, Defendant Beiter has final authority to authorize

9 initiatives like Project 60 and is aware of the factors that prompted VA GLA to

10 develop Project 60.

11

191. Defendant Beiter's official duties require that she oversee and manage

12 day-to-day operations of VA GLA, including approving program design, authorizing

13 VA GLA to offer particular services, establishing admission and other criteria for the

14 various programs offered through VA GLA, and ensuring that DVA complies with

15 federal anti-discrimination laws and its fiduciary obligations. She has, in fact,

16 approved and authorized the programs and services currently offered by VA GLA

17 and is the sole official within VA GLA with authority to approve new programs, to

18 set funding priorities, and to authorize modifications to existing programs that

19 require renovation or modification of existing structures. See VA GLA MASTER

20 PLAN at 10. Thus, Defendant Beiter has direct control over and responsibility for the

21 design and implementation of the current VHA benefits program offered through VA

22 GLA and has elected not to offer permanent supportive housing to Plaintiffs and

23 similarly situated veterans as a reasonable accommodation for their disabilities.

24

192. As the Director of VA GLA, Defendant Beiter is also personally aware

25 of the many contracts and land deals under which private entities utilize the WLA

26 Campus, where her office is located, for purposes inconsistent with the 1888 Deed.

27 The Veterans Programs Enhancement Act of 1998 required that VA GLA develop a

28 master land use plan for the WLA Campus. In January 2011, VA GLA released a

62

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 65 of 72 Page ID #:112

1 draft master plan, as required by the 1998 legislation. As the Director of VA GLA,

2 Defendant Beiter was involved in and had direct responsibility to review and

3 authorize the release of the draft master plan.

4

193. The draft master plan included a summary of the history of the WLA

5 Campus, including the 1888 Deed, and acknowledged that the 1888 Deed required

6 that the land be used for housing disabled veterans. See VA GLA MASTER PLAN at

7 10 (noting use of the land "as a nursing home or for domiciliary uses [was] agreed

8 upon in the original deed"). The draft master plan also documented the many private

9 land deals that limit VA GLA's ability to use the WLA Campus to provide housing

lO and supportive services to disabled veterans. See VA GLA MASTER PLAN at 36-37

11 (summarizing "Current Land Use Agreements").

12

194. Defendant Beiter has also received correspondence from local activists

13 detailing the many current uses of the WLA Campus that are inconsistent with the

14 1888 Deed. She also has been confronted by City of Santa Monica officials

15 regarding the private land deals and her failure to ensure that the WLA Campus is

16 used to provide housing to disabled veterans consistent with the 1888 Deed.

17

195. As the Director of VA GLA, Defendant Beiter has final decision-

18 making authority related to uses of the WLA Campus. See VA GLA MASTER PLAN

19 at 10 ("Each development proposal [for the WLA Campus] must be approved

20 individually by the GLAHS Director [Defendant Beiter], the [VISN director], and

21 national VA officials as required by VA regulation governing the specific project.").

22 She and her predecessors as Director of VA GLA approved each land deal for the

23 WLA Campus described in this Complaint.

24

196. Accordingly, Defendant Beiter has specific knowledge of the violations

25 detailed in this Complaint, she or her predecessors as Director of VA GLA were

26 directly responsible for and authorized the conduct that gave rise to the violations

27 detailed in this Complaint, and she has the direct responsibility and authority to

28 provide the relief sought in this Complaint.

63

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 66 of 72 Page ID #:113

1

197. The violations of Plaintiffs' rights by Defendants outlined above are

2 ongoing and will continue unless this Court grants the relief Plaintiffs seek in this

3 Complaint.

4

5

CLASS ALLEGATIONS

6

198. Plaintiffs Valentini, Moram, Doe, and Romine bring the first and

7 second causes of action detailed below on behalf of themselves and all other persons

8 similarly situated pursuant to Federal Rule of Civil Procedure 23. For those causes

9 of action, those Plaintiffs seek injunctive and declaratory relief applicable to

10 members of the Plaintiff Class, as defined below.

11

199. The plaintiff class consists of:

12 Veterans who are eligible for the benefits provided by the Veterans Health

13 Administration and reside within the service area ofthe VA Greater Los Angeles

14 Healthcare System, and who suffer from a mental disability and/or brain injury that

15 renders them unable to obtain or maintain stable housing.

16

200. Class action status for this litigation is proper because:

17

(a) The plaintiff class is so numerous that joinder of all members is

18 impractical;

19

(b) There are questions of law and fact common to the class;

20

(c) Plaintiffs' claims are typical of the claims of the class, in that

21 Plaintiffs are and were denied meaningful access to VHA benefits offered by VA

22 GLA solely by reason of their serious mental or physical disability;

23

(d) Plaintiffs will fairly and adequately protect the interests of the

24 class as there is no conflict between Plaintiffs and the other class members; and

25

(e) Plaintiffs can adequately represent the interests of the class

26 members and have retained counsel experienced in class action litigation.

27

201. Defendants have acted and/or refused to act on grounds generally

28 applicable to the class, thereby making final declaratory and injunctive relief

64

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 67 of 72 Page ID #:114

1 appropriate with respect to the class as a whole, under Federal Rule of Civil

2 Procedure 23(b)(2).

3

4

FIRST CAUSE OF ACTION

5 Violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 793

6

(Intentional Discrimination)

7 (Plaintiffs Valentini, Moraru, Doe, Romine, and Vietnam Veterans of America

8

Against All Defendants)

9

202. Plaintiffs incorporate by reference the foregoing paragraphs of this

10 Complaint as though fully set forth herein.

11

203. Plaintiffs are disabled within the meaning of the Rehabilitation Act and

12 otherwise eligible for the VHA benefits offered by DVA, a federal agency, but

13 defendants have intentionally defined and provide the VHA benefits offered by VA

14 GLA so as not to serve Plaintiffs' severe disabilities, in violation of Section 504 of

15 the Rehabilitation Act of 1973.

16

17

SECOND CAUSE OF ACTION

18 Violation of Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 793

19

(Meaningful Access)

20 (Plaintiffs Valentini, Moraru, Doe, Romine, and Vietnam Veterans of America

21

Against All Defendants)

22

204. Plaintiffs incorporate by reference the foregoing paragraphs of this

23 Complaint as though fully set forth herein.

24

205. Plaintiffs are disabled within the meaning of the Rehabilitation Act and

25 otherwise eligible for the VHA benefits offered by DVA, a federal agency, but

26 defendants have defined and provide the VHA benefits offered by VA GLA in a way

27 that effectively denies Plaintiffs meaningful access to those benefits, in violation of

28 Section 504 of the Rehabilitation Act of 1973.

65

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 68 of 72 Page ID #:115

1

2

TmRD CAUSE OF ACTION

3 Breach of Fiduciary Duty as Trustee of Charitable Trust (Injunctive Relief)

4

(All Plaintiffs Against All Defendants)

5

206. Plaintiffs incorporate by reference the foregoing paragraphs of this

6 Complaint as though fully set forth herein.

7

207. The 1888 Deed created a charitable trust, and, as the successor-in-

8 interest to the National Soldiers' Home, DVA holds that land, on which the WLA

9 Campus now sits, in trust for the intended beneficiaries of the charitable trust,

10 disabled veterans, and must use the land only for purposes that directly contribute to

11 the establishment and permanent operation of a home for disabled veterans.

12

208. By authorizing the many uses of the WLA Campus that do not directly

13 contribute to the operation of a home for disabled veterans, Defendants have

14 breached their fiduciary duties as trustees of the charitable trust.

15

16

FOURTH CAUSE OF ACTION

17

Accounting for Profits

18

(All Plaintiffs Against All Defendants)

19

209. Plaintiffs incorporate by reference the foregoing paragraphs of this

20 Complaint as though fully set forth herein.

21

210. The 1888 Deed created a charitable trust, and, as the successor-in-

22 interest to the National Soldiers' Home, DVA holds that land, on which the WLA

23 Campus now sits, in trust for the intended beneficiaries of the charitable trust,

24 disabled veterans, and must use the land only for purposes that directly contribute to

25 the establishment and permanent operation of a home for disabled veterans.

26

211. By authorizing the many uses of the WLA Campus that do not directly

27 contribute to the operation of a home for disabled veterans, Defendants have

28 breached their fiduciary duties as trustees of the charitable trust, and the financial

66

c Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 69 of 72 Page ID #:116

1 arrangements and payment structure from these uses are complicated and the

2 information about them is within the control of the defendant, such that an

3 accounting is necessary.

4

5

FIFTH CAUSE OF ACTION

6 Breach of Fiduciary Duty as Trustee of Charitable Trust (Mandamus Relief)

7

(All Plaintiffs Against All Defendants)

8

212. Plaintiffs incorporate by reference the foregoing paragraphs of this

9 Complaint as though fully set forth herein.

10

213. The 1888 Deed created a charitable trust, and, as the successor-in-

11 interest to the National Soldiers' Home, DVA holds that land, on which the WLA

12 Campus now sits, in trust for the intended beneficiaries of the charitable trust,

13 disabled veterans, and must use the land only for purposes that directly contribute to

14 the establishment and permanent operation of a home for disabled veterans.

15

214. As trustees of the charitable trust, Defendants have a non-discretionary

16 fiduciary duty, which they have breached by authorizing the many uses of the WLA

17 Campus that do not directly contribute to the operation of a home for disabled

18 veterans.

19

215. Plaintiffs have no adequate remedy at law to compel defendants to cease

20 breaching their fiduciary duty as trustees of the charitable trust.

21

22

REQUEST FOR RELIEF

23

Plaintiffs therefore respectfully request that this Court grant the following

24 relief:

25

A. Certify a class for the first and second causes of action in this Complaint

26 pursuant to Federal Rule of Civil Procedure 23, in accordance with the allegations in

27 this Complaint and the forthcoming class certification motion.

28

B. Enter an injunction directing that Defendants provide Plaintiffs and the

67

Case 2:11-cv-04846-SJO-MRW Document 1 Filed 06/08/11 Page 70 of 72 Page ID #:117

1 Plaintiff Class permanent supportive housing as a reasonable accommodation for

2 their disabilities so Plaintiffs and the Plaintiff Class can reasonably access the VHA

3 benefits for which they are eligible.

4

C. Enter an injunction prohibiting Defendants from utilizing the WLA

5 Campus for any purpose that is not directly related to providing a home for disabled

6 veterans or, in the alternative, enter an order mandating that defendants refrain from

7 allowing the current uses of the WLA Campus for purposes that are not directly

8 related to providing a home for disabled veterans to continue.

9

D. Enter an injunction requiring an accounting of profits of all money

10 received by DVA or VA GLA as a result of land use agreements for the WLA

11 Campus under which the land is used for any purpose that is not directly related to

12 providing a home for disabled veterans and requiring that Defendants deposit all

13 such money in account to be used solely for the purpose of providing housing and

14 housing-connected supportive services to disabled veterans at the WLA Campus.

15

E. Declare that the design and implementation of the VHA benefits

16 program within VA GLA by defendants intentionally discriminates against Plaintiffs

17 and the Plaintiff Class solely by reason of their disabilities.

18

F. Declare that defendants are denying Plaintiffs and the Plaintiff Class

19 meaningful access to the VHA benefits offered by VA GLA solely by virtue of their

20 disabilities.

21

G. Declare that the federal government's acceptance of the land transferred

22 under the 1888 Deed created a charitable trust.

23

H. Declare that defendants have breached and continue to breach their

24 fiduciary duties as trustees of the charitable trust by allowing VA GLA to use the

25 WLA Campus for purposes that are not directly related to providing a home for

26 disabled veterans.

27

I. Grant such other relief as this Court deems just and proper, including

28 but not limited to awarding attorney's fees under 29 U.S.C. § 794a and any other

68

Case 2:11-cv-04846-SJO-M\. R. W~ Document 1 Filed 06/08/11 Page 71 of 72 Page ID #:118

1 applicable statutes and awarding costs under 28 U.S.C. § 1920 and any other

2 applicable statute.

3

4 Respectfully Submitted,

5
6 Dated: June 7, 2011
7 8

BY:~Y.P.4h=--

/ Mark D. Rosenbaum

'\

ACLU Foundation of Southern

California

By:_A_~_/J..:....-f-?Z~~:.._ ...=._ -- _

David B. Sapp

ACLU Foundation of Southern

California

By: ~ct-- t:I. T~ t4t)
Laurence H. Tribe

18 19
20 Dated: June 7, 2011
21
22
23
Dated: June 7, 2011
24
25
26 27 Dated: June 7, 2011
28

By: ~ L.. 1J-IJ,trn.. (A~) Ronald L. Olson Munger, Tolles & Olson, LLP

By: ~~ /~f~~ Us)
Amos Hartston
Inner City Law Center
~ ... By:_#-._c_'~ _M________ ohnC. Ulill
Arnold & Porter, LLP

By: ~) t. P41L (Jc)

Gary LBlasi

'

69

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1 Dated: June 7, 2011 2 3 4 5 6 7 8 9 10
11
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: ~/I~J.»
Jonathan Massey Massey & Gail LLP

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 </s> Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 1 of 113 Page ID #:228

MARK D. ROSENBAUM, SBN 59940 mrosenbaum@aclu-sc.org ACLU FOIR\MATION OF SOUTHERN CALIFORNIA 1313 W. 8th Street Los Angeles, CA 90017 T: (213) 977-5220, F: (213) 417-2220 RONALD L. OLSON, SBN 44597 Ron.Olson@mto.corn MUNGER,-TOLLES & OLSON LLP 355 South Grand Avenue, 35th Fl, Los Angeles CA 90071-1560 T: (213)683-9100, F: (213) 683-5111

FILED
CLERK U.S. DISTRICT COURT
AUG 1 2 2011
ECLENTRAL DISTRICT OF CALIFORNIA
DEPUTY

JOHN C. ULIN, SBN 165524 John.Ulin@aporter.corn ARNOLD 8L-PORTER, LLP 777 South Figueroa Street Los Angeles, CA 90017 T: (213) 243-4228, F: (213) 243-4199 (Additional counsel listed on next page)

LAURENCE H. TRIBE, SBN 39441 tribe@law.harvard.edu HARVARD LAW SCHOOL* Hauser 420, 1575 Massachusetts Ave. Cambridge, MA 02138 T: (617) 495-1767
For identification purposes only

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

GREGORY VALENTINI, ADRIAN MORARU, JANE DOE, ZACHARY ISAAC WILLIE FLOYD, LEROY SMITH, JR., LESLIE RICHARDSON, WAYNE EARLY, LAWRENCE GREEN, and DEMETRIOUS KASSITAS, on behalf of themselves and all those similarly situated, VIETNAM VETERANS OF AMERICA, and CAROLINA WINSTON BARRIE,

Case No.: CV-11-04846 SJO (MRWx) The Honorable James S. Otero
CLASS ACTION as AMENDED COMPLAINT FOR INJUNCTIVE, DECLARATORY, MANDAMUS, AND ACCOUNTING RELIEF

Plaintiffs,

VS.
ERIC SHINSEKI, in his official capacity, Secretary, Department of Veterans Affairs; DONNA M. BEITER, in her official capacity, Director, VA Greater Los Angeles Healthcare System,
Defendants.

Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 2 of 113 Page ID #:229

Additional Counsel GARY L. BLASI, SBN 70190 blasiRlaw.ucla.edu UCLA SCHOOL OF LAW* 405 Hilgard Avenue Los Angeles, California 90024 T: (310) 206-9431, F: (310) 206-1234

AMOS E. HARTSTON, SBN 186471 ahartston_@innercitylaw.org INNER CITY LAW CENTER 1309 East Seventh Street Los Angeles, CA 90021 T: (213) 891-2880. F: (213) 891-2888

PETER ELIASBERG, SBN 189110

MELISSA A. TYNER, SBN 269649

peliasberg@aclu-sc.org

mtyner@inner_citylaw.org

DAVID B.-SAPP, SBN 264464

ELIZABETH HAMAN KUGLER, SBN

dsappgaclu-sc.org

273928

ACLUTOUNDATION OF SOUTHERN EKugler_@innercitylaw.org

CALIFORNIA

ADAM MURRAY, SBN 199430

1313 W. 8th Street

amun-ay(innercitylaw.org

Los Angeles, CA 90017

INNER CITY LAW CENTER

T: (213)977-5220, F: (213) 417-2220 1309 East Seventh Street

Los Angeles, CA 90021

T: (213) 891-2880. F: (213) 891-2888

JAMES J. FINSTEN, SBN 234999 James.Finsten@aporter.com JACOB K. POORMAN, SBN 262261 Jacob.PoormanAaporter.corn ARNOLD & PIMTER, LLP 777 South Figueroa Street Los Angeles, CA 90017 T: (213)243-4228, F: (213) 243-4199

JONATHAN MASSEY jmassey@masseygail.corn Pro HacTice application pending MASSEY & GAIL LLP 1325 G St. NW, Suite 500 Washington, D.C. 20005 T: (202) 652-4511, F: (312) 379-0467

LEONARD GAIL lgail@masseygail.com Pro Hac Vice MASSEY & GAIL LLP 50 East Washington St., Suite 400 Chicago, IL 60602 T: (312) 283-1590, OF: (312) 379-0467

JOHN RAPPAPORT, SBN 254459 J ohn. Rapp aport@mto . c orn MUNGER, IOLLES & OLSON LLP 355 South Grand Avenue, 35th FI, Los Angeles CA 90071-1560 T: (213) 683-9100, F: (213) 683-5111

*For identification purposes only

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The following allegations are based on information and belief, unless otherwise specified:
INTRODUCTION 1. No veteran entered military service severely mentally disabled and homeless. We, as a people, owe our security and the preservation of our most cherished values to our military service members and our veterans, who serve our nation not for remuneration or glory, but out of fealty to honor, duty, and sacrifice. One horrific consequence of war is that it exacts heavy and lifelong consequences on the young men and women who made lofty commitments on our behalf: many returnwith physically invisible wounds of mental illness, Post Traumatic Stress Disorder (PTSD), or brain traumas. For countless veterans, military service has rendered them unable to resume their civilian lives, sustain their family relationships, hold down jobs or continue their educations, or even to maintain a permanent residence; 2. In March 2009, President Obama stated as to our veterans: "These heroes have a home. It's the country they served, the United States of America, and until we reach a day when not a single veteran sleeps on our nation's streets, our work remains unfinished." But for an estimated 107,000 homeless veterans nationwide, conservatively 8,200 (or 8 percent) of whom live in the Greater Los Angeles area, these fine words of a promised home remain aspirational rhetoric, not the hard truths of their daily lives. 3. Many veterans who entered military service with sound bodies and minds return to civilian life bearing scars both visible and invisible. The invisible scars include PTSD and other mental disorders either caused or aggravated by their experiences. An incontrovertible body of research has established the close causal and mutually reinforcing interrelationships between severe mental disabilities and
1The U.S. Department of Veterans Affairs (DVA) is the source of these estimates, which are conservative and likely undercount the number of homeless veterans nationally and in the Greater Los Angeles area. Numerous researchers, advocates, and local officials have argued that DVA's estimates are inaccurately low, and other estimates place the number of homeless veterans in Los Angeles at 20,000.
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chronic homelessness. Over the past decade or more, numerous scientific studies have demonstrated, consistent with common sense, that homeless individuals with severe mental disorders and/or addiction disease resulting from those disorders can meaningfully access and benefit from medical and mental health services only after they are stabilized in stable and permanent housing connected to appropriate services and support — generally referred to as "permanent supportive housing."
4. In fact, research has confirmed that the only way that individuals with psychiatric conditions such as PTSD, brain trauma, paranoid schizophrenia, and bipolar disorder consistently are able to meaningfully access and benefit from medical and psychiatric services is when they first permanently reside in appropriate supportive housing. Moreover, absent such housing, these conditions worsen, leading to the creation of additional problems impairing the capacity of these individuals to conduct everyday life. Homelessness itself exposes veterans to further trauma that itself can both cause and aggravate PTSD and other disorders. For veterans with severe mental disabilities incurred as a result of their service to this country, effective treatment requires the stability and regularity afforded by permanent housing readily accessible to ongoing comprehensive care and supportive services.
5. The U.S. Department of Veterans Affairs (DVA) has acknowledged these conclusions, stating, for example, in a supplement to a 2009 report to Congress on homelessness: "For the large percentage of veterans with disabilities, permanent supportive housing would be effective in helping them achieve long-term stability." Nonetheless, DVA and its constituent healthcare systems do not systematically utilize permanent supportive housing to ensure that severely disabled veterans have the stability and support they need to meaningfully access the medical treatment and other services for which they are otherwise eligible.
6. Los Angeles is the homeless veterans capital of the United States. This is true despite the fact that the focal point for the VA Greater Los Angeles
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1 Healthcare System ("VA GLA") is the West Los Angeles Medical Center &

2 Community Living Center campus ("WLA Campus"), a 387-acre parcel located five

3 miles from the Pacific Ocean in Los Angeles. This land was donated in 1888 to the

4 predecessor body to DVA for the specific purpose of providing housing for veterans

5 with disabilities. The deed called for establishing and permanently maintaining a

6 soldier's home for disabled war veterans on that land. For some 80 years, DVA's

7 predecessors operated a Pacific Branch Soldier's Home at this site in conformity

8 with the 1888 deed, which provided a permanent home for tens of thousands of

9 disabled veterans who resided on the campus and were able to access necessary

10 medical and therapeutic services available there.

11

7. Beginning in the 1960s and 1970s, however, DVA's predecessor ceased

12 accepting new residents at the WLA Campus, and structures dedicated to permanent

13 housing were repurposed or fell into disuse and became badly in need of repair and

14 renovation. All new construction and renovation projects were focused on

15 expanding medical and short-term treatment facilities. There are today more than

16 100 buildings on the WLA Campus, many vacant, closed, or underutilized. In

17 contrast to what once existed, no permanent housing is available to disabled veterans

18 on the WLA Campus. VA GLA does not offer, on the WLA Campus or elsewhere

19 within VA GLA's service area, permanent housing collocated with or readily

20 accessible to necessary medical, mental health, and other supportive services for

21 homeless veterans with severe mental disabilities or brain injuries that render them

22 unable to obtain the treatment and care they desperately need without stable housing.

23

8. Plaintiffs in this case include severely disabled veterans with mental

24 disabilities and/or brain injuries who, as a result of their disabilities, are homeless

25 and cannot access necessary medical and mental health treatment for which they are

26 otherwise eligible and which they require to have a chance at leading the normal life

27 that was theirs before they began military service.

28

9. Greg Valentini is an Army veteran who served in Afghanistan as part of

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Operation Enduring Freedom (OEF) and in Iraq as part of Operation Iraqi Freedom (OIF). His unit, the 101st Airborne Division, participated in the initial invasion of Afghanistan in 2001 and the assault on Tora Bora intended to capture Osarna bin Laden and other senior al Qaeda and Taliban leaders. His unit also was part of the initial invasion force in Iraq in 2003 and saw heavy combat in Karbala. While in Afghanistan and Iraq, Mr. Valentini witnessed numerous fellow soldiers and civilians die and was himself regularly in great peril under heavy fire. Upon his return to the United States following his discharge, Mr. Valentini began experiencing symptoms of what was later diagnosed as a severe case of PTSD. He was constantlyon alert and unable to concentrate on basic details of everyday life, he had graphic nightmares about things he witnessed during his wartime service, and he began to think about suicide as a way to escape the constant stress of feeling that he never left the combat zone. Mr. Valentini began self-medicating himself with methamphetamine to cope with the recurring violent thoughts and stress. Eventually, Mr. Valentini became homeless. When he went to the WLA Campus for help, he was briefly housed in a short-term treatment program, but was discharged and returned to the street. He has now been sporadically homeless for several years and requires a safe, secure, and stable residence in order to meaningfully access necessary treatment for his mental disabilities.
10. Adrian Moraru is a Marine veteran who was deployed to Iraq as part of the initial invasion force in OIF. While he was stationed in Karbala following the initial invasion, he always had to remain "on alert" and needed eyes in the back of his head, because of the constant threat he and his comrades faced. In contrast to the initial invasion, when he knew who the enemy was, during this period he could not interact with civilians without worrying that he would be attacked. He also was exposed to a chemical without chemical warfare gear while he was in Iraq. Following his discharge, he experienced a violent seizure and developed painful boils on his groin, back, and arms. Mr. Moraru recalls going "schizo" when he
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returned to his home in Philadelphia, causing him to destroy his mother's living room and to have the impulse to kill her. He thereafter lived in a car for several months. After other violent incidents, Mr. Moraru eventually came to Los Angeles, where he was homeless and spent his days and nights marching up and down Wilshire Boulevard. When he went to the WLA Campus and sought residential services, he was housed at a temporary shelter in a room with three other men and was discharged when he assaulted another resident. He was thereafter arrested in Santa Monica and charged with making a criminal threat. As a result of his mental disability, Mr. Moraru is at times overcome by strong impulses and often is not able-to understand why he behaves as he does. He requires a safe, secure, and stable residence to meaningfully access treatment for his mental disabilities.
11. Jane Doe2is an Army veteran who completed Advanced Individual Training in Radio Communications at Fort Dix, New Jersey in 1974. While serving in the military, she experienced several sexual assaults. VA GLA psychiatrists have diagnosed Ms. Doe with PTSD secondary to military sexual trauma. She experiences frequent flashbacks and nightmares and has been unable to secure or maintain a job as a consequence of her mental disabilities. She has been homeless for many years. Ms. Doe requires a safe, secure, and stable residence to meaningfully access appropriate treatment for her mental disabilities.
12. Floyd Summers is an Army veteran who was stationed as a communications specialist in Germany. He was honorably discharged in 1977. In the following decades, he experienced symptoms of bipolar disorder and PTSD, including mood swings and depression. As a result of his mental disabilities, he has struggled to hold stable employment and maintain relationships. In 1995, he was
2 Jane Doe has been the victim of several sexual assaults and is currently experiencing extreme PTSD symptoms, such that public disclosure of her trauma may compound and exacerbate her symptoms, and she is currently seeking medical, mental health and other services and benefits from DVA and consequently fears retaliation. For these and other reasons, a pseudonym is used to protect her identity and to protect her from harm. Plaintiffs have filed an application seeking permission to allow Ms. Doe to proceed under a pseudonym concurrently with this Complaint.
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diagnosed with bipolar disorder by VA GLA doctors. After a brief stay in the psychiatric ward at the WLA Campus, he became homeless. He has since screened positive for PTSD and was assigned to a PTSD support group offered through VA GLA. He has lived on the streets and in his car on and off for over two decades. Recently, Mr. Summers was turned down for transitional housing at the WLA Campus because he was deemed too "unstable" due to his mental disability. He requires a safe, secure, and stable residence to meaningfully access necessary treatment for his mental disabilities and resulting substance abuse disorder.
13. Zachary Isaac is a Navy veteran who served on a guided missile destroyer and was stationed in various locations across the Pacific Ocean. He was
discharged in 2010. During his time in the Navy, Mr. Isaac was involved in combat
and experienced the death of a sailor under his command. Mr. Isaac began having violent flashbacks during his service and recently has experienced approximately five to six flashbacks a day, preventing him from being able to find a stable job. He has been homeless since March 2011, and his flashbacks are exacerbated by living on the streets. In particular, the shared sleeping arraignments of temporary shelters remind him of his service and trigger flashbacks. He requires a safe, secure, and stable residence to meaningfully access necessary treatment for his mental disabilities.
14. Willie Floyd is an Army veteran who served in Vietnam as a combat engineer. The nature of his duties within the Army placed him in constant danger, as his team would enter the jungle after deforestation efforts with the goal of establishing fortifications for new Army camps and positions. Mr. Floyd saw the death of numerous U.S. servicemen and engaged in many firefights with enemy troops. To cope with the stress, he began using drugs while in Vietnam and returned to the U.S. with a drug addiction. After his return, Mr. Floyd was diagnosed with depression, anxiety, and anti-social disorder. He has been sporadically homeless in the Los Angeles area for at least 10 years and continues to experience violent
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flashbacks to Vietnam. Mr. Floyd participated in a PTSD group at the WLA campus, and, although he found the program helpful, he stopped attending meetings because he found the trip from Skid Row to the WLA campus too difficult to manage. Recently, Mr. Floyd completed a drug treatment program and obtained a housing voucher from VA GLA, but he lost the voucher because he did not submit renewal papers on time. Since the withdrawal of his housing voucher, Mr. Floyd has been on the streets of Skid Row. He requires a safe, secure, and stable residence to meaningfully access necessary treatment for his mental disabilities.
15. Leroy Smith, Jr. is a Marine veteran who served in San Diego and was -injured before his deployment to Vietnam. After his discharge, Mr. Smith was diagnosed with schizophrenia by DVA doctors. He became homeless after his father and grandmother passed away, and consequently has difficulty keeping track of the medicine prescribed to treat his schizophrenia. He began taking drugs to cope with his pain and life on Skid Row. In February 2011, he was admitted to a short-term housing program at the WLA Campus. Mr. Smith attempted to secure a housing voucher to prepare for his discharge from the program, but he was unable to navigate the application process on his own and did not receive the support necessary to complete the application. Upon his discharge from the program, Mr. Smith returned to Skid Row, where he currently resides. He was recently talked down from a bridge that spans the Los Angeles River, where he had blacked out, climbed over the railing, and was threatening to jump. He requires a safe, secure, and stable residence to meaningfully access necessary treatment for his mental disabilities.
16. Leslie Richardson is an Army veteran who was assigned to the narcotics division of the Military Police in Germany from 1978-1980. During his time in Germany, Mr. Richardson's responsibilities included undercover narcotics investigations and investigating drug overdose cases. He noticed changes in his behavior and emotions as a result of the stress, and he began drinking heavily. When he returned home after his discharge, Mr. Richardson worked as a police officer, but
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1 ultimately quit because of job-related stress. Soon thereafter, he was diagnosed with

2 depression at a DVA facility in San Bernardino. He drank heavily to cope with his

3 disability and had difficulty sustaining work as a security guard. After cycling

4 through a number of VA GLA housing programs from 2007 through 2009, Mr.

5 Richardson received a housing voucher from VA GLA in January of 2009. Later

6 that year, a fellow veteran in his building committed suicide, and seeing the coroner

7 cart the body away triggered a flashback to the times that Mr. Richardson observed

8 dead bodies during his investigations in Germany. In March 2010, he had a

9 breakdown and was placed in the psychiatric ward on the WLA Campus for 19 days;-

10 after which he was placed in an emergency housing shelter and other short-term

11 housing programs by VA GLA. After relapsing, he was required to enroll in a sober

12 living program, and he has been living at a sober living house in Long Beach since

13 June 2011. He does not know where he will go after his term at that program is

14 complete. Mr. Richardson requires a safe, secure, and stable residence to

15 meaningfully access necessary treatment for his mental disabilities.

16

17. Wayne Early is an Army veteran who, during basic training, watched a

17 fellow soldier die from a gunshot wound. Mr. Early has been homeless for about ten

18 years, has severe depression, and has difficulty complying with his mental health

19 treatment program because of his homelessness. Lawrence Green is a Marine

20 veteran who spent 20 months in Vietnam, including several months handling body

21 bags for deceased American soldiers. He has been homeless for about four years and

22 believes he has a serious mental disability. He has been unable to secure permanent

23 housing through VA GLA despite completing a sober living programming at the

24 WLA campus. Demetrious Kassitas is a Navy veteran who served in Desert Storm

25 between 1990 and 1992. Although he served as a nurse, he was engaged in at least

26 one direct combat incident. He has been diagnosed with bipolar disorder and has

27 been homeless twice since leaving the military. Mr. Early, Mr. Green, and Mr.

28 Kassitas require a safe, secure, and stable residence to meaningfully access necessary

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treatment for their mental disabilities. 18. Plaintiffs and other similarly situated veterans are being denied access
to the medical, mental health, and other services offered by VA GLA for which they are otherwise eligible, solely by virtue of their disabilities, which represents unlawful discrimination under Section 504 of the Rehabilitation Act of 1973.
19. The VA GLA service delivery system has been designed and operated in a manner that prevents veterans like Plaintiffs with severe mental disabilities from accessing mental health, housing, and other supportive services. They are explicitly excluded from participation in housing programs and other services offered by VA- -GLAbecause of the severity and nature of their disabilities, and VA GLA has not created and does not make available alternative programs to veterans who are denied admission to existing programs because of the severity of their mental health disabilities. "When viewed in relation to similarly situated nondisabled individuals, [disabled veterans are being] denied [services] by [VA GLA] solely because of their disabilities; that is, had they not been disabled, they would have received [services]." Lovell v. Chandler, 303 F.3d 1039, 1045-46 (9th Cir. 2002). Additionally, although aware that VA GLA serves numerous veterans with serious mental disabilities who require stable housing linked with supportive services to access necessary treatment and care, VA GLA officials have elected to deliver necessary medical, mental health, and other services only at the WLA Campus and a few other sites scattered across VA GLA's large service area (i.e., have elected not to provide community-based services), and have not located any permanent or long-term housing programs geographically proximate to those sites. Just as the intentional decision to eliminate programming that "focuses on needs of disabled individuals . . . and that provides services disproportionately required by the disabled and available nowhere else" is unlawful facial disability discrimination, Rodde v. Bonta, 357 F. 3d 988, 997 (9th Cir. 2004), VA GLA's decision to offer benefits to veterans, but to exclude from those benefits the core and necessary component of treatment for the severely disabled,
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constitutes facial discrimination in violation of the Rehabilitation Act. 20. Plaintiffs and other similarly situated veterans also have been and are
being denied meaningful access to benefits offered by VA GLA because of their disabilities in violation of the Rehabilitation Act. The program structure and design of benefits offered by VA GLA denies them meaningful access, because without stable housing collocated with or readily accessible to the necessary mental health and other supportive services offered by VA GLA, they cannot access the benefits offered by VA GLA on equal terms as nondisabled veterans and less severely disabled veterans. Thus, the current structure of VA GLA's services denies "certainindividuals meaningful access to government-provided services because of their unique needs, while others . . . retain access to the same class of services." Rodde, 357 F. 3d at 998.
21. Because permanent supportive housing is the only approach that consistently allows individuals like Plaintiffs with serious mental disabilities meaningful access to the medical, mental health, and other services to which they are entitled by virtue of their service to this country, VA GLA is obligated to provide permanent supportive housing to Plaintiffs and other homeless veterans with serious mental disabilities as a reasonable accommodation for their disabilities.
22. For seriously disabled veterans in the Los Angeles area, permanent supportive housing is an especially reasonable accommodation because the WLA Campus was donated to DVA's predecessor in 1888 for the express purpose of establishing and permanently maintaining housing for disabled veterans. The WLA Campus has numerous vacant and underutilized buildings that could be used for that purpose. Such a use would be fully consistent with the intent of the individuals who donated the land to the federal government in 1888 for the purpose of establishing and permanently maintaining a home for disabled veterans.
23. The donation of the land on which the WLA Campus now sits created a charitable trust, under which DVA, as the successor trustee, is obligated to use the
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land only for purposes that directly contribute to the public purpose for which the land was donated. Although VA GLA does offer medical care and residential care on the WLA Campus, it has misappropriated a substantial portion of the land for uses that are in no way related to housing or caring for veterans. In lieu of the permanent housing that once operated on the WLA Campus, numerous commercial and other non-DVA programs now operate on the WLA Campus pursuant to leases, memoranda of understanding, revocable licenses, or enhanced sharing agreements entered into by VA GLA — perhaps because, according to VA GLA, the WLA Campus "is perceived to be one of the most valuable parcels of real estate in the western United States." WEST LOS ANGELES VA MEDICAL CENTER, VETERANS PROGRAMS ENHANCEMENT ACT OF 1998 (VPEA) DRAFT MASTER PLAN 8 (Jan. 2011) [hereinafter "VA GLA MASTER PLAN"], available at http://www.scribd.com/doc/48127448/WLA-VA-Draft-Master-Plan.3As a result of these land deals, veterans have limited access to, or are altogether prohibited from accessing, approximately 110 acres of the 387-acre WLA Campus (nearly 30 percent of the grounds). In fact, the current agreements render those 110 acres unavailable to provide housing or otherwise expand the services offered to disabled veterans.
24. There has never been a public accounting of how much money VA GLA receives under these land deals; who receives payments under these deals; the purposes for which the revenue received, if any, has been used; or the process by which these deals were negotiated. The VA GLA-approved private uses of land on the WLA Campus include:
• Ten acres near the hospital are leased to Enterprise Rent-A-Car and Tumbleweed Transportation, a charter bus operator, for vehicle storage and/or sales;
3The VA GLA Master Plan was issued as a draft plan on January 19, 2011, see 76 Fed. Reg. 3209 (Jan 19., 2011), and was approved as a final on June 23, 2011, see 76 Fed. Reg. 36955 (June 23, 2011).
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• Sodexho Marriott operates a laundry facility and an adjacent water softening unit for processing linen from surrounding hotels;
• An energy company has been operating active oil wells on approximately 2.5 acres for 23 years and 1.5 acres are subject to an enhanced sharing agreement with TMC, LLC to operate a farmer's market;
• Richmark Entertainment operates the Wadsworth Theater for commercial productions, and, although it was originally constructed as an entertainment center for veterans, veterans are charged full price for all events held there; Richmark also operates the Brentwood Theater on the WLA Campus;
• Westside Services LLC operates parking areas throughout the WLA Campus on behalf of businesses and other establishments in the surrounding community;
• UCLA utilizes the Jackie Robinson Baseball Stadium and complex for its collegiate team and summer baseball camps;
• Brentwood Private School utilizes 20 acres, on which it has constructed athletic fields, a track, tennis courts, and a swimming pool;
• The City of Los Angeles utilizes 12 acres as a public park, which includes a fenced dog run, athletic fields, and a parking lot;
• Two soccer clubs use MacArthur Field, where veterans once played softball, and an adjacent parking lot; and
• Movie and television production companies utilize portions of the WLA Campus for short-term, non-recurring filming projects, and other private parties rent portions of the land for one-time events, such as fundraisers and weddings. 25. DVA and VA GLA officials, including Defendant Eric Shinseki, the
Secretary of DVA, and Defendant Donna M. Beiter, the Director of VA GLA, have resisted attempts by descendants of the individuals who donated the land in 1888, including Plaintiff Carolina Winston Barrie and her family, along with veterans,
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community, and philanthropic organizations to obtain information about these land deals and to retain the original intent of the 1888 land grant. At the same time, VA GLA transferred a parcel of land on the WLA Campus to the State of California to build a geriatric care facility, and inserted a provision in the deed under which title will revert to the federal government if the State ceases using the land "as a nursing home or for domiciliary uses, as agreed upon in the original deed." VA GLA MASTER PLAN at 10. Thus, VA GLA has acknowledged the original intent behind the 1888 land transfer and even imposed a duty to honor that intent on the State, while openly using portions of the WLA Campus for purposes plainly inconsistent with that intent.
26. Through this suit, Plaintiffs seek to vindicate their rights while shining a light on the crisis of homelessness among veterans, particularly in the Greater Los Angeles area, and on the misuse of the WLA Campus. For now the Obarna administration's goal of ending homelessness among veterans is merely a lofty aspiration. Concrete action is necessary to accomplish that goal. As DVA has acknowledged, a critical step in achieving that goal is to provide permanent supportive housing as a reasonable accommodation for veterans like Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas who have a mental disability and/or brain injury that renders them unable to obtain or maintain stable housing and who require stable housing to meaningfully access the services to which they are entitled. Given the purposes of the 1888 donation of the land that created a charitable trust and the Greater Los Angeles area's status as the capital of veteran homelessness, it is especially reasonable and appropriate to provide permanent supportive housing for veterans in Los Angeles. Through this lawsuit, Plaintiffs seek to compel defendants to do just that.
27. Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas seek declaratory and injunctive relief on
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behalf of themselves and a class of similarly situated disabled homeless veterans to remedy the unlawful discrimination against Plaintiffs solely by reason of their disabilities, and Plaintiff Vietnam Veterans of America joins them in seeking this relief. Additionally, all Plaintiffs seek declaratory, injunctive, and mandamus relief to enforce the charitable trust that was created by the 1888 deed that transferred the land to the federal government for the express purpose of establishing and permanently maintaining a home for disabled veterans and seek a full accounting of all trust property, including an accounting of proceeds, if any, from the diversion of trust property through the land deals and other for-profit use of the WLA Campus inconsistent with the trust. Finally, all Plaintiffs seek declaratory and injunctive relief to vacate existing land deals on the WLA Campus into which VA GLA officials entered in excess of statutory authority and to prevent VA GLA officials from entering into similar land deals in the future.
JURISDICTION 28. This Court has jurisdiction over Plaintiffs' claims for injunctive relief based on 28 U.S.C. § 1331, because those claims arise under federal statutes and federal common law. 29. Additionally, this Court has jurisdiction over Plaintiffs' claims under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) based on 28 U.S.C. § 1343(a)(4), because those claims seek to secure equitable relief under an Act of Congress. 30. To the extent Plaintiffs' claims to enforce the terms of the charitable trust and for an accounting of profits do not present a federal question sufficient to confer jurisdiction under 28 U.S.C. § 1331, this Court has jurisdiction over those claims under 28 U.S.C. § 1367. 31. Finally, this Court has jurisdiction over Plaintiffs' alternative claim for mandamus relief under 28 U.S.C. § 1361.
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32. Pursuant to the Court's jurisdiction over this matter, Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas bring this action on behalf of themselves and all other persons similarly situated, with respect only to the first and second causes of action in this Complaint.
VENUE 33. Venue is proper in the Central District of California under 28 U.S.C. § 1391(b) because all of the acts and/or omissions complained of herein occurred or will occur in the District.
PARTIES 34. Plaintiff Greg Valentini is a 33-year old citizen of the United States and a resident of Los Angeles County, California. Mr. Valentini is an Army veteran who became severely disabled as a result of his service to this country, including tours of duty in Afghanistan and Iraq. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA. 35. Plaintiff Adrian Moraru is a 37-year old lawful permanent resident of the United States and a resident of Los Angeles County, California. Mr. Moraru is a veteran who became severely disabled after serving this country as a Marine, including a tour of duty in Iraq. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA. 36. Plaintiff Jane Doe is a 54-year old citizen of the United States and a resident of Los Angeles County, California. Ms. Doe is an Army veteran who became severely disabled as a result of her-service to this country. She is eligible for medical benefits from DVA. Because she resides in Los Angeles, she seeks treatment from VA GLA. 37. Plaintiff Floyd Summers is a citizen of the United States and a resident of Los Angeles County, California. Mr. Summers is an Army veteran who became
15

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severely disabled as a result of his service to this country. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
38. Plaintiff Zachary Isaac is a citizen of the United States and a resident of Los Angeles County, California. Mr. Isaac is a Navy veteran who became severely disabled as a result of his service to this country. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
39. Plaintiff Willie Floyd is a 64-year old citizen of the United States and a resident of Los Angeles County, California. Mr. Floyd is an Army veteran who became severely disabled as a result of his service to this country, including a tour of duty in Vietnam. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
40. Plaintiff Leroy Smith, Jr. is a citizen of the United States and a resident of Los Angeles County, California. Mr. Smith is a Marine veteran who became severely disabled as a result of his service to this county. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
41. Plaintiff Leslie Richardson is a citizen of the United States and a resident of Los Angeles County, California. Mr. Richardson is an Army veteran who became severely disabled as a result of his military service in Germany. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
42. Plaintiff Wayne Early is a citizen of the United States and a resident of Los Angeles County, California. Mr. Early is an Army veteran who became severely disabled as a result of his service to this country. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
43. Plaintiff Lawrence Green is a 56-year old citizen of the United States and a resident of Los Angeles County, California. Mr. Green is a Marine veteran
16

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who became severely disabled as a result of his service to this country. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
44. Plaintiff Demetrious Kassitas is a citizen of the United States and a resident of Los Angeles County, California. Mr. Kassitas is a Navy veteran who became severely disabled as a result of his service to this country, including a tour in Desert Storm. He is eligible for medical benefits from DVA. Because he resides in Los Angeles, he seeks treatment from VA GLA.
45. Plaintiff Vietnam Veterans of America (VVA) is a membership-basedorganization with over 65,000 members across the country. It is the only national Vietnam veterans organization congressionally chartered and exclusively dedicated to Vietnam-era veterans and their families. VVA's goals are to promote and support the full range of issues important to Vietnam veterans, to create a new identity for this generation of veterans, and to change public perception of Vietnam veterans. VVA operates 46 state councils, including the Vietnam Veterans of America, California State Council (VVA-CSC). Hundreds of VVA-CSC members reside within VA GLA's service area. Some of these members have serious mental disabilities and are homeless.
46. Plaintiff Carolina Winston Barrie is a citizen of the United States and a resident of Los Angeles County, California. Ms. Barrie is a direct descendant of Arcadia B. de Baker, who, together with United States Senator John P. Jones, donated the land on which VA GLA's WLA Campus is now located.
47. Defendant Eric Shinseki is the Secretary of DVA. He is sued in his official capacity. DVA is a federal agency with headquarters in Washington, D.C. and successor entity to the National Home for Disabled Volunteer Soldiers. DVA oversees the Veterans Health Administration, which operates the United States' largest integrated health care system consisting of 153 medical centers and numerous community-based outpatient clinics, community living centers, vet centers and
17

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domiciliaries. 48. Defendant Shinseki's official duties as Secretary of DVA include the
proper execution and administration of all laws and programs administered by DVA and the control, direction, and management of DVA. See 38 USCA § 303. As Secretary of DVA, Defendant Shinseki has the ultimate responsibility for ensuring that DVA and its constituent agencies and programs comply with relevant federal law, regulations, and policies, as well as ensuring that DVA maintains compliance with contracts and land grants such as the 1888 deed referenced in this Complaint.
49. Defendant Donna M. Beiter is the Director of VA GLA. She is sued in her official capacity. VA GLA maintains its headquarters in Los Angeles, California, and serves veterans in Los Angeles, Ventura, Santa Barbara, San Luis Obispo, and Kern counties in Southern California. VA GLA is one of five health care systems operated by VA Desert Pacific Healthcare Network, which is one of 21 Veterans Integrated Services Networks (VISNs) operated nationwide by DVA to provide preventive and primary care, acute hospital care, mental health services, specialty care, and long-tern care to veterans.
50. Defendant Beiter's official duties as Director of VA GLA include supervising the day-to-day operations and services offered by all the institutions operated by VA GLA, including all programs operated at the WLA Campus, and ensuring that VA GLA complies with relevant federal law, regulations, and policies. As the Director of VA GLA, Defendant Beiter has final authority to approve matters related to program design, criteria for admission and continued treatment, and the particular components and nature of all services offered by VA GLA, as well as final decision-making authority related to use of the WLA Campus and any contracts with third parties for access to and use of the WLA Campus. // // //
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FACTUAL ALLEGATIONS The Crisis of Veteran Homelessness
51. As Defendant Shinseki said in 2009, "Those who have served this
nation as Veterans should never find themselves on the streets, living without care
and without hope." Sadly, tens of thousands of veterans find themselves in that
position every night, homeless like Plaintiffs Valentini, Moraru, Doe, Summers,
Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas. The majority of these
individuals, including Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd,
Smith, Richardson, Early, Green, and Kassitas, have serious mental disabilities
and/or brain injuries. 52. One out of every 168 veterans experiences homelessness during the
course of a year,4and DVA estimated that 107,000 veterans were homeless on any given night in 2009.5Veterans are overrepresented in the homeless population and are about 50 percent more likely to become homeless compared to all Americans.6
53. Although reliable data is difficult to find, recent veterans who served in OEF and OIF and related operations are at especially high risk of becoming
homeless. In December 2010, DVA estimated that over 9,000 OEF/OIF veterans
were homeless, and that number is expected to grow as additional service members
leave military service.'
4 UU.S. DEEPPAARRTTMMEENNTT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF VETERANS AFFAIRS, VETERAN HOMELESSNESS: A SUPPLEMENTAL REPORT TO THE 2009 ANNUAL
HOMELESS ASSESSMENT REPORT TO CONGRESS i, available at http://www.hudhre.info/documents/2009AHARVeteransReport.pdf (last accessed May 29, 2011).
5 JOHN KUFIN AND JOHN NAKASHIMA, THE SIXTEENTH ANNUAL PROGRESS REPORT: COMMUNITY HOMELESSNESS ASSESSMENT, LOCAL EDUCATION AND NETWORKING GROUP (CHALENG) FOR VETERANS (FY 2009) SERVICES FOR HOMELESS VETERANS ASSESSMENT AND
COORDINATION 23 (March 17, 2010);available at http://www.va.gov/HOMELESS/docs/chaleng/chalengsixteenth annual report.pdf.
6 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF VETERANS AFFAIRS, VETERAN HOMELESSNESS: A SUPPLEMENTAL REPORT TO THE 2009 ANNUAL
HOMELESS ASSESSMENT REPORT TO CONGRESS 12, available at http://www.hudhre.info/documents/2009AHARVeteransReport.pdf (last accessed May 29, 2011).
7 Bob Woodruff, Ian Cameron & Christine Romo, "Coming Home Homeless: The New
Homeless Among Veterans," ABC NEWS (Dec. 26, 2010), available at http://abenews.go.eom/ThisWeek/coming-home-homeless-homeless-veterans/story?id=12478952.
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 22 of 113 Page ID #:249
54. Between 44,000 to 66,000 veterans are believed to be experiencing chronic homelessness.8Individuals meet the federal definition of chronic homelessness if they have "a disabling condition" and have "either (a) been continuously homeless for a year or more OR (b) [have] had at least 4 episodes of homelessness in the past three years." 24 C.F.R. §91.5. Veterans are more likely to be chronically homeless than non-veterans.9
Causes of Chronic Homelessness
55. In the early 1990s, researchers began studying individuals who remained homeless for extended periods, often for years and decades, or who frequently cycled in and out of homelessness, to try to understand the causes of chronic homelessness and the barriers that prevent these individuals from attaining and maintaining stable housing.1°This body of research has established the close correlation between homelessness and disabilities, particularly mental health and substance abuse disorders. IIIt has also identified numerous barriers that prevent chronically homeless individuals from accessing the services intended to assist them.
56. First, for individuals with serious mental disabilities, the disability itself is a barrier both to acquiring and maintaining stable housing and to accessing
8 UNITED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, OPENING DOORS: FEDERAL
STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 20 (2010), available at http://www.usich.gov/PDF/OpeningDoors2010 FSPPreventEndHomeless.pdf.
9See MARTHA R. BURT, HOMELESSNESS: PROGRAMS AND THE PEOPLE THEY SERVE 11-3 to 6 (1999), available at http://www.huduser.org/portal/publications/pdf/hometech/tchap-11.pdf (finding that 32 percent of homeless veterans reported being homeless for over 13 months, while only 17 percent of homeless non-veterans reported this extended length of homelessness).
1°See Randall Kuhn & Dennis P. Culhane, Applying Cluster Analysis to Test a Typology of Homelessness by Pattern of Shelter Utilization: Results from the Analysis of Administrative Data, 26 AM. J. COMMUNITY PSYCHOL. 207, 225 (1998) (finding the chronically homeless have higher levels of mental health, substance abuse, and medical problems).
11See, e.g., David P. Folsom et al., Prevalence and Risk Factors for Homelessness and Utilization of Mental Health Services Among 10,340 Patients with Serious Mental Illness in a Large Public Mental Health System, 162 A.J. PSYCHIATRY 370 (2005) (finding that between onefourth and one-third of persons experiencing homelessness have current severe psychiatric conditions, such as schizophrenia, major depression, and bipolar disorder, and that 50 percent of these individuals have co-occurring substance abuse disorder).
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1 medical and mental health care, shelter, and other vital services once these

2 individuals become homeless.12Without supports or assistance, these individuals

3 cannot access available services to treat the disability or to meet their basic needs.

4 For example, many individuals with severe mental illness or cognitive impairment

5 cannot complete applications or persist through intake processes without substantial

6 assistance, which is often not provided.13Similarly, individuals with PTSD

7 frequently experience memory loss and other cognitive impairments that result in

8 difficulty remembering appointments, which can lead to dismissal from programs for

9 "noncompliance." Additionally, for some individuals with severe mental disabilities-,-

10 their disabilities prevent them from functioning in the settings in which the services

11 are offered, such as individuals whose disabilities prevent them from sharing living

12 space or sleeping quarters with others, but who are required to complete a

13 transitional housing program that requires dorm-style living before they are eligible

14 for permanent housing.

15

57. Lack of housing also exacerbates mental disabilities and creates new

16 health problems, thereby impairing the individual's ability to function and impeding

17 the individual's ability to access necessary services. For example, the experience of

18 homelessness is inherently stressful, requiring constant vigilance to avoid danger,

19 and exposes homeless individuals to increased risks of trauma, leading to PTSD or

20 aggravating already existing PTSD and other mental di sorders.14For individuals

21 whose disability causes paranoia or severe anxiety, the uncertainty and diminished

22

12See, e.g., Amy L. Drapalski et al., Perceived Barriers to Medical Care and Mental

Health Care Among Veterans with Serious Mental Illness, 59 PSYCHIATRIC SERVICES 921 (2008), -23 available at http://ps.psychiatryonline.org/cgi/content/abstract/59/8/921 (finding that psychiatric

symptoms and mental illness severity, pose one of the most significant barriers to medical and 24 mental health care).

25

13See Michael D. Nino et al., Who are the Chronically Homeless? Social Characteristics

and Risk Factors Associated with Chronic Homelessness, 19 J. SOC. DISTRESS & HOMELESS 41

26 (2010) (finding chronically homeless individuals were more likely to report that paper work for government benefits was too difficult to complete).

27

14See Bruce D. Levy & James J. O'Connell, Health Care for Homeless Persons, 350 NEW

ENG. J. MED. 2329, 2330 (2004) (finding that life on the street increases social isolation and the 28 risk of psychiatric conditions).

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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 24 of 113 Page ID #:251
security and safety created by homelessness exacerbate the mental disability.15 For many individuals with serious mental disabilities, effective health treatment presupposes stability and regularity, which is simply not possible for chronically homeless individuals to achieve.16Additionally, individuals experiencing homelessness frequently experience chronic and acute health conditions that are caused or exacerbated by the lack of stable shelter, including respiratory disorders, cardiovascular diseases, frostbite and hypothermia, skin diseases, diabetes, liver disease, and traumatic injuries due to assaults, falls, and accidents.' 7
58. Thus, homelessness resulting from mental disability, and mental disability aggravated by homelessness, interfere both with the ability to obtain treatment and with amelioration of the mental disability itself, including the ability to obtain appropriate psychotropic medications. Accessing these services requires capacities to understand and follow procedures and to tolerate waiting rooms and other conditions that are frequently beyond the abilities of chronically homeless individuals with mental disabilities. Lacking effective access to appropriate medication and supervised treatment, homeless individuals with mental disabilities frequently resort to inappropriate medication, in the form of illegal drugs that can have powerful psychotropic effects but are also most often addictive and come with
15See Kevin M. Fitzpatrick et al., Dangerous Places: Exposure to Violence and Its Mental Health Consequences for the Homeless, 69 A.J. ORTHOPSYCHIATRY 438, 444-45 (1999), available at http://onlinelibrary.wiley.com/doi/10.1037/h0080392/pdf(finding that patients experiencing anxiety and paranoia were "significantly affected by the perceived dangers inherent in the homeless environment").
16 See Deborah L. Dennis et al., The Physical and Mental Health Status of Homeless Adults, 2 HOUSING POL'Y DEBATE 815, 822 (.1991), available at http://www.knowledgeplex.org/kp/textdocument summary/scholarly aril cle/relfiles/hpd 0203 d ennis2.pdf ("Homeless persons present a more advanced state of [mental] illness and are less likely, due to their homeless situation, to follow even the simplest of treatment regimens.").
17 See Bruce D. Levy & James J. O'Connell, Health Care for Homeless Persons, 350 NEW ENG. J. MED. 2329, 2330 (2004); see also Mayur M. Desai & Robert A. Rosenheck, Unmet Need for Medical Care Among Homeless Adults with Serious Mental Illness, 27 GEN. HOSP. PSYCHIATRY 418 (2005) (finding that 43.6 percent of persons who are homeless and have serious mental illnesses had unmet needs for medical care at the time of program entry).
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 25 of 113 Page ID #:252

1 negative side effects.18

2

59. The lack of housing itself, especially combined with a serious mental

3 disability, is a fon-nidable barrier to accessing services. For many homeless

4 individuals, the immediacy of the daily struggle for shelter, food, and other

5 necessities relegates medical and mental health needs to a distant priority.19 Thus,

6 common illnesses and injuries are left untreated, leading to increased emergency

7 hospital visits and acute care admissions.2°

8

60. In sum, a robust body of research and years of practical experience have

9 established that the subset of the homeless population who, like Plaintiffs Valentini, --

10 Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas,

11 have severe mental illnesses, such as PTSD, paranoid schizophrenia, and bipolar

12 disorder, are unable to meaningfully access the range of services offered to homeless

13 individuals to meet their day-to-day needs, including shelter, or to obtain appropriate

14 health care, mental health care, or addiction treatment, due to symptoms of their

15 disabilities and their lack of stable housing.

16

17 Factors that Make Veterans Especially Susceptible to Chronic Homelessness

18

61. Like other homeless populations, homeless veterans' risk factors for

19 chronic homelessness include poverty, joblessness, mental illness, and substance

20 abuse.2IDue to the relatively higher incidence of mental illness and substance abuse

21

22

18See Timothy P. Johnson & Michael Fendrich, Homelessness and Drug Use: Evidence

from a Community Sample, 32 AM. J. PREVENTATIVE MED. S211, 5212 ("Homeless individuals . . .

23 abuse drugs and alcohol in an attempt to provide self-medication for psychiatric or physical health problems.").

24

19See Dennis, supra note 15, at 826 (finding mentally ill homeless persons often do not

receive needed physical and mental health care because they "giv[e] higher priority to other basic 25 needs, such as procuring food and shelter on a daily basis.").

26

20Margot B. Kushel et al., Factors Associated with the Health Care Utilization of Homeless

Persons, 285 JAMA 200 (2001) (finding that compared with the general population, the homeless

27 are 3 times more likely to seek emergency care at least once in a year).

21Robert A. Rosenheck & Peter Koegel, Characteristics of Veterans and Nonveterans in 28 Three Samples of Homeless Men, 44 HOSP. & COMMUNITY PSYCHIATRY, 858, 861 (1993).

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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 26 of 113 Page ID #:253

1 disorders among veterans, however, veterans are particularly vulnerable to chronic

2 homelessness.22Although military service as such is not predictive of homelessness,

3 military service is strongly associated with factors that contribute to homelessness.23

4 For example, combat exposure and the stress related to deployment contribute to

5 high levels of social isolation upon returning home, psychiatric disorders, and

6 substance abuse disorders, all of which, in turn, contribute directly to 7 homelessness.24

8

62. Veterans of the post-Vietnam All-Volunteer Force era have an even

9 higher risk of mental-illness-induced homelessness than veterans from earlier eras.25--

10 Researchers have identified several causes for the increased risk of mental illness

11 and subsequent homelessness of veterans of recent conflicts, including waning public

12 support and lower morale among troops, the nature of modern warfare resulting in

13 unexpected threats to life via roadside bombs and improvised explosive devices, and

14 multiple and more-lengthy deployments.26According to one study, one in five

15 soldiers who were deployed as part of OEF/OIF returned home with symptoms of

16

22 See, e.g., Robert Rosenheck et al., The Proportion of Veterans Among Homeless Men, 84 17 AMERICAN J. OF PUB. HEALTH 466 (1994) (finding that higher prevalence of psychiatric illness,

substance abuse, and, especially, antisocial personality disorder among veterans is a contributor to 18 their greater vulnerability to homelessness).

19

23 See, e.g., Robert Rosenheck & Alan Fontana, A Model of Homelessness Among Male

Veterans of the Vietnam War Generation, 151 AM. J. PSYCHIATRY 421, 425 (1994) (reporting

20 significant indirect effects on homelessness resulting from war zone traumatic experience).

24Id. at 421 (finding that post-military social isolation, psychiatric disorder, and substance 21 abuse had the strongest direct effects on homelessness).

22

25See, e.g., Karen H. Seal et al., Trends and Risk Factors for Mental Health Diagnoses

Among Iraq and Afghanistan Veterans Using Department of Veterans Affairs Health Care, 2002- __

23 2008, 99 AM. J. PUB. HEALTH 1651 (2009) (documenting that 37 percent of veterans returning from Iraq and Afghanistan who utilized DVA health care system between 2002 and 2008 received a

24 mental health diagnosis); Anna Kline;et al., The Relationship Between Military Service Eras and Psychosocial Treatment Needs Among Homeless Veterans with a Co-Occurring Substance Abuse

25 and Mental Health Disorder, 5 J. DUAL DIAGNOSIS 358 (2009) (finding that mentally substance-abusing veterans of recent conflicts became homeless at an earlier age than other

26 veterans and were more likely to attribute their homelessness to mental health problems).

26 See Seal, supra note 24, at 1656; see also Charles S. Milliken, et al., Longitudinal 27 Assessment of Mental Health Problems Among Active and Reserve Component Soldiers Returning

from the Iraq War, 298 JAMA 2141 (2007) (finding combat exposure was associated with higher 28 rates of PTSD among veterans of OIF).

24

Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 27 of 113 Page ID #:254

1 PTSD or major depression, which is a substantially higher rate than the general

2 population.27

3

4

Without Stable Housing, Seriously Disabled Individuals

5

Cannot Meaningfully Access Critical Services

6

63. Although addressing the needs of homeless individuals with serious

7 mental illness is complex, research conducted over the last few decades confirms that

8 stable housing is a precondition to effective treatment of severe mental disorders

9 and/or associated addiction disease. With the stability and security of permanent

10 housing, the formerly homeless veteran with severe disabilities can meaningfully

11 access mental health, physical health, substance abuse, vocational, and other services.

12 Permanent supportive housing is thus intended specifically for homeless individuals

13 with disabilities who, without housing, cannot access and make effective use of the

14 treatment and services they need to stay stable; and who, without such treatment and

15 supportive services, cannot access and maintain stable housing.

16

64. A significant body of evidence demonstrates that permanent supportive

17 housing has successful long-term housing outcomes for previously chronically

18 homeless persons, including those with the most severe impediments.28In addition_

19 to housing stability, studies have shown enormous benefits for participants in

20 permanent supportive housing programs. Documented outcomes include improved

21 mental health status, decreased substance abuse, increased average income, and

22

23

24

27 THE INVISIBBLLEE WOUNDS OF WAR: PSYCHOLOGICAL AND COGNITIVE INJURIES, THEIR

CONSEQUENCES, AND SERVICES TO ASSIST RECOVERY, at xxi (Terri Tanielian & Lisa H. Jaycox

25 eds., RAND Corporation 2008), available at http://www.rand.org/contentidarn/rand/pubs/monographs/2008/RAND MG720.pdf.

26

28 See, e.g. Sam Tsemberis & Ronda F. Eisenberg, Pathways to Housing: Supported

Housing for Street-Dwelling Homeless Individuals with Psychiatric Disabilities. 51 PSYCHIATRIC 27 SERVICES 487, 491 (2000) (finding 88 percent housing-retention rate for permanent supportive

housing program over five-year period — a much lower risk of homelessness than in traditional 28 residential treatment programs);.

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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 28 of 113 Page ID #:255
I improved quality of life.29
65. Aside from individual benefits for veterans, permanent supportive
housing also provides substantial cost savings to government at all levels. When left
on the streets, the homeless utilize a substantial array of community resources in the
form of increased health care utilization, emergency room care, public health
services, and continuing use of expensive temporary shelters. Numerous studies
have demonstrated that permanent supportive housing offers substantial cost savings
when compared to alternative homeless interventions. For example, Dennis
Culhane, a professor at the University of Pennsylvania who also serves as the
Director of Research for the National Center on Homelessness Among Veterans at
DVA, conducted a comprehensive study of permanent supportive housing that
tracked the costs associated with nearly 10,000 homeless persons with mental illness
in New York City for two years while they were homeless and two years after they
were housed. Dr. Culhane found that supportive housing created average annual
savings of $16,282 per person. Seventy-two percent of the savings resulted from a
decline in the use of public health services, 23 percent of the savings resulted from a
decline in shelter use, and the remaining 5 percent of the savings resulted from
reduced incarceration of homeless people. The reduction in expenditures in these
areas nearly covered the cost of developing, operating, and providing supportive
housing services, resulting in a net cost to the government of only $995 per unit per year.30 A study conducted by the Economic Roundtable for the Los Angeles
29See, e.g., PERLMAN , supra note 27 (finding that 50 percent of residents in the Denver program had improved mental health status, 64 percent reported improved quality of life, and 15 percent had decreased substance abuse, and that average monthly income rose from $185 to $431); Joy A. Livingston & Debra Srebnik, Approaches to Providing Housing and Flexible Supports for People with Psychiatric Disabilities, 16 PSYCHOSOCIAL REHABILITATION J. 27 (1992) (finding participants in permanent supportive housing programs had greater housing satisfaction, improved housing stability, and greater psychological well-being).
30See Dennis P. Culhane et al., Public Service Reductions Associated with Placement of Homeless Persons with Severe Mental Illness in Supportive Housing, 13 HOUSING POL'Y DEBATE 107 (2002); see also DANIEL FLAMING ET AL., WHERE WE SLEEP: COSTS WHEN HOMELESS AND HOUSED TN Los ANGELES 26 (2009) (documenting $2,291 average monthly cost savings for each chronically homeless Los Angeles participant); MASSACHUSETTS HOUSING AND SHELTER ALLIANCE, HOME AND HEALTHY FOR GOOD: A STATEWIDE HOUSING FIRST PROGRAM (2010)
(cont'd)
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 29 of 113 Page ID #:256
Homeless Services Authority found that the public costs attributed to chronically
homeless persons in permanent supportive housing averaged $27,504 per year less
than the costs attributed to similar persons when they were on the streets or in
shelters.3 '
66. Finally, communities with permanent supportive housing programs are
safer, more efficient, and more attractive. In some instances, property values in
neighborhoods surrounding permanent supportive housing programs have
increased.32
67. The success of permanent supportive housing has been replicated in Los_
Angeles, as exemplified by Project 50 and later by other similar projects in the
region. Spearheaded by Los Angeles County Supervisor Zev Yaroslaysky, the goal
of Project 50 was to identify, then place into permanent supportive housing, the 50
most vulnerable people who were sleeping on the streets of Skid Row. Many of
these individuals had been designated "shelter resistant," because they preferred
sleeping on the streets to being in a crowded shelter situation. But all of those
offered their own housing, albeit a small, private room in a nonprofit housing
facility, accepted the offer. Forty-nine people were placed into permanent supportive
(coned from previous page) (documenting cost savings of $9,507 per resident per year, including reduction in medical costs
from $26,124 per person per year to $8,500); Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVICES 992 (2006) (documenting $1,300 public cost reduction per resident in San Francisco); THE HEARTLAND ALLIANCE, SUPPORTIVE HOUSING IN ILLINOIS: A WISE INVESTMENT (2009) (documenting overall savings of $854,477 over two years); ERIC HIRSCH & IRENE GLASSER, RHODE ISLAND'S HOUSING FIRST PROGRAM FIRST YEAR EVALUATION (2007) (documenting cost savings of $8,839 per person per year).
31 FLAMING, supra note 29. 32 See, e.g., FURMAN CENTER FOR REAL ESTATE & URBAN POLICY, THE IMPACT OF SUPPORTIVE HOUSING ON SURROUNDING NEIGHBORHOODS: EVIDENCE FROM NEW YORK CITY 6-7 (2008), available at http://furmancenter.org/files/FurmanCenterPolicyBriefonSupportiveHousing_LowRes.pdf (examining the impact of 7,500 supportive housing units in New York City and finding a statistically significant rise in the value of nearby properties); ARTHUR ANDERSEN, CONNECTICUT SUPPORTIVE HOUSING DEMONSTRATION PROGRAM: FINAL PROGRAM EVALUATION REPORT chp. III (2002), available at http://documents.csh.org/documentslpubs/CT2002Evaluation.pdf (finding supportive housing improved neighborhood safety and beautification and increased or stabilized property values).
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housing, and 88 percent remained housed one year later. Ninety-one percent of tenants were diagnosed with a mental illness and 84 percent reported a history of substance abuse. Similar to other studies, Project 50 showed that health care costs for participants declined from $677,000 the year prior to participation in the program to $185,000 for the year after they began living in supportive housing.33
68. In short, both experience and empirical research have demonstrated that permanent supportive housing is the only approach that consistently ensures that individuals with serious mental disabilities are able to meaningfully access necessary medical care, mental health services, and other social services.
69. These lessons can and must be applied to address the crisis of chronic veteran homelessness in order to ensure that our veterans receive the medical care and support to which they are entitled and that they deserve, as even DVA itself has recognized. According to a report recently co-authored by DVA, "[f]or the large percentage of veterans with disabilities, permanent supportive housing would be effective in helping them achieve long-term stability."34
The Crisis of Veteran Homelessness in the Greater Los Angeles Area 70. According to a 2009 survey conducted by VA GLA staff, there were 8,197 homeless veterans on any given day within VA GLA's coverage area, so approximately 8 percent (8,197 of the estimated 107,000) of all homeless veterans in the United States lived within VA GLA's coverage area in 2009.3$ 71. In 2011, VA GLA released data about the homeless veteran population that had received services from VA GLA in fiscal year 2010. Of the 6,397 homeless
33 See Project 50 —1 year Progress Report, L.A. CNTY. BD. SUPERVISORS (Feb. 4, 2009), http://zev.lacounty.gov/wp-content/uploads/Project5O-ONE-YEAR-SNAPSHOT-2.4.09.pdf.
34 U.So. TuNEPARTMENT OF HOUSING AND URBAN DEVELOPMENT & U.S. DEPARTMENT OF
VETERANS AFFAIRS, VETERAN HOMELESSNESS: A SUPPLEMENTAL REPORT TO THE 2009 ANNUAL
HOMELESS ASSESSMENT REPORT TO CONGRESS 30, available at http://www.hudhre.info/documents/2009AFIARVeteransReport.pdf (last accessed May 29, 2011).
35 See JOHN NAKASHIMA, CHALENG 2009 SURVEY RESULTS SUMMARY VISN 22, available at http://www.va.gov/HOMELESS/docs/chaleng/chalengvisn 22.pdf.
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veterans that VA GLA documented as having received services in fiscal year 2010, more than half served in the U.S. Armed Forces after the Vietnam War. Their average age was 51. Ninety-five percent were male, 52 percent were AfricanAmerican, 29 percent were white, and 14 percent were Latino. About 34 percent had been homeless for one year or longer. Forty-eight percent indicated a serious substance abuse problem. In total, 46 percent had a serious psychiatric disorder, including psychosis and PTSD. Twenty-six percent had both a substance abuse problem and a serious psychiatric disorder, and 52 percent reported at least one serious medical problem. VA GLA reported providing services to 130 homeless veterans who had served in Iraq or Afghanistan.36
72. Thus, Defendants know or should know that the population of veterans served by VA GLA includes numerous disabled individuals, who, like Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas, cannot meaningfully access the medical and other benefits to which they are entitled unless they are provided permanent supportive housing.
Overview of Veterans' Benefits Programs 73. There are three administrations within DVA: the Veterans Health Administration (VHA), the Veterans Benefits Administration (VBA), and the National Cemetery Administration (NCA). The VHA is tasked with providing "a complete medical and hospital service for the medical care and treatment of veterans . ." 38 U.S.C. § 7301(b).37 36 See JOHN NAKASHIMA, VA PROGRAMS FOR HOMELESS VETERANS AT VA GREATER Los
ANGELES HEALTHCARE SYSTEM: AN OVERVIEW OF THE COMPREHENSIVE HOMELESS CENTER
(January 14, 2011). 37 The VBA administers "nonmedical benefits programs . . . which provide assistance to
veterans and their dependents and survivors." 38 U.S.C. § 7701(a). To be eligible for disability compensation benefits from the VBA, veterans must present: evidence of a medical diagnosis of the current impairment; evidence of an in-service incident or an aggravation of the disease or injury causing the impairment; and medical proof of a connection between the in-service incident or aggravation and the current disability. For the purposes of disability compensation, "[slerviceconnected means . . that such disability was incurred or aggravated . . in line of duty in the active military, naval, or air service." 38 C.F.R. § 3.1(k). If a veteran is found eligible for disability
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1

74. To qualify for V1-1A benefits, a former service-member must have been

"discharged or released" from service "under conditions other than dishonorable," 38

U.S.C. § 101(2), and must have performed "active duty" in the military, 38 U.S.C. §

101(2). There is no length of service requirement for former enlisted persons who

started active duty before September 8, 1980, or for former officers who first entered

active duty before October 17, 1981. 38 U.S.C. § 5303A(b)(2). All other veterans

must have 24 months of continuous active duty unless they qualify for an exception

to the minimum service requirement. 38 U.S.C. § 5303A(b)(1). Exceptions to the

minimum service requirement include discharges "for a disability incurred or

aggravated in the line of duty." 38 U.S.C. § 5303A(b)(3)(B).

75. Veterans who qualify for VHA benefits are placed into one of eight

"priority groups" established by DVA regulations to determine their eligibility for

benefits. See 38 C.F.R. § 17.36(b). Veterans in the highest priority groups, 1

through 3, have service-connected disabilities of varying degrees. 38 C.F.R. §

17.36(b)(1)-(3). Veterans in priority group 4 have serious disabilities that are not

service-connected. 38 C.F.R. § 17.36(b)(4). Priority group 5 consists of low-income

veterans. 38 C.F.R. § 17.36(b)(5). Priority group 6 includes veterans exposed to

certain toxic substances, as well as recent combat veterans. 38 C.F.R. § 17.36(b)(6).

Veterans in priority groups 7 and 8 have no compensable service-connected

disabilities and have greater incomes than those in priority group 5. 38 C.F.R. §

17.36(b)(6)-(7). "A veteran will be placed in the highest priority category or

categories for which the veteran qualifies." 38 C.F.R. § 17.36(d)(3)(ii).

76. Depending on the amount of funding provided by Congress, DVA may

"prioritize" the higher priority groups and provide V1-1A benefits only to veterans in

those priority groups. Currently, however, any veteran who falls within any one of

(coned from previous page)
compensation, DVA uses a schedule to set the amount of earnings impairment on a percentage basis. 38 U.S.C. § 1155. The NCA is "responsible for the internment of deceased servicemembers and veterans," and controls all "cemeteries under the jurisdiction of the Veterans' Administration . . ." 38 U.S.C. § 2400.

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the first seven priority groups is eligible for the full VHA benefits package, and some veterans who fall within priority group 8 are also eligible.
77. Additionally, regardless of whether a veteran is enrolled in the VHA benefits program, DVA must provide hospital care and medical services "to any veteran for a service-connected disability," 38 U.S.C. § 1710(a)(1)(A), "[e]ven if [the veteran is] not enrolled in the VA healthcare system." 38 C.F.R. § 17.37(b). DVA must also provide hospital care and medical services "to any veteran who has a service-connected disability rated at 50% or more," regardless of whether the treatment concerns the disability, 38 U.S.C. § 1710(a)(1)(B), and even if the veteran-is not enrolled in the medical benefits program. 38 C.F.R. § 17.37(a).
78. The benefits package offered through VHA includes outpatient medical, surgical, and mental healthcare; inpatient hospital, medical, surgical, and mental healthcare; prescription drug coverage; emergency care; substance abuse treatment, and other services. See 38 C.F.R. § 17.38(a). Subject to congressional appropriations, the VA must also "provide nursing home care . . . (1) to any veteran who is in need of such care for a service-connected disability, and (2) to any veteran who is in need of such care and who has a service-connected disability rated at 70 percent or more." 38 U.S.C. § 1710A(a). Thus, VHA provides preventive and primary care, acute hospital care, mental health services, specialty care, and longterm care, which includes residential treatment and housing services in some circumstances. These services are collectively referred to herein as "VHA benefits."
VA GLA Serves Veterans in the Greater Los Angeles Area Who Are Eligible-for VHA Benefits
79. VHA provides VHA benefits to eligible veterans through twenty-one (21) Veterans Integrated Services Networks (VISNs) around the country.
80. VA Desert Pacific Healthcare Network is the VISN that provides services to veterans in Southern California and Southern Nevada. These services are
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delivered through five healthcare systems — one in Southern Nevada and four in Southern California. Each healthcare system operates a medical center with a hospital and other inpatient and outpatient services, as well as varying numbers of community clinics and vet centers.
81. VA GLA is one of these healthcare systems. The coverage area for VA GLA includes all or parts of Los Angeles County, Ventura County, Kern County, Santa Barbara County, and San Luis Obispo County.
82. As the Director of VA GLA, Defendant Beiter is the VA GLA official with final responsibility and authority to approve, modify, or terminate programs or services offered as part of the VHA benefits delivered by VA GLA, and she is the sole VA GLA official with responsibility and authority to approve specific uses of the WLA Campus, including entering into land use agreements with private and public entities.
83. The focal point of services offered by VA GLA is the WLA Campus. The WLA Campus is a 387-acre parcel located about five miles from the Pacific Ocean in an unincorporated area of Los Angeles County surrounded by the City of Los Angeles. It is located between Sunset Boulevard to the north, Ohio Avenue to the south, Interstate Highway 405 to the east, and San Vicente Boulevard to the west. In addition to the array of services available at the WLA Campus, VA GLA operates three ambulatory care centers, nine community clinics, and five vet centers throughout its coverage area.
History of the WLA Campus 84. The land on which the WLA Campus is now located was donated to the federal government in 1888 by United States Senator John P. Jones and Arcadia B. de Baker for the purpose of establishing and permanently maintaining a soldier's home for disabled war veterans on that land. 85. In 1865, Congress incorporated the National Home for Disabled
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1 Volunteer Soldiers ("National Home") to operate branch homes throughout the

2 nation for soldiers who had been honorably discharged. The branch homes were

3 intended as true homes offered as a debt of gratitude to those who had served the

4 country. Accordingly, residents were provided housing, food, medical care,

5 recreation activities, and employment opportunities. There were no limitations on

6 how long a veteran could stay at a branch home once admitted.

7

86. Additionally, "disability" for the purposes of admission was interpreted

8 broadly. Veterans with physical wounds from their military service were admitted,

9 as well as individuals with recurring illnesses or psychological trauma that rendered --

10 them unable to support themselves in civilian life. Although veterans could receive

11 medical treatment while they stayed at a branch home, many residents of the branch

12 homes did not require or receive ongoing medical care.

13

87. Thus, the National Home offered the promise of a permanent home for

14 veterans who had served their country and, by virtue of their service, were not able to

15 support themselves in civilian life.

16

88. Between 1865 and 1870, the National Home's Board of Governors

17 opened four branch homes east of the Rocky Mountains. In 1887, Congress

18 authorized the National Home's Board of Governors to establish a branch home west

19 of the Rocky Mountains. The legislation authorized the Board of Governors to

20 acquire land for this purpose.

21

89. In 1888, Senator John P. Jones and Arcadia B. de Baker donated the

22 land on which the WLA Campus now sits to the National Home for the purpose of

23 establishing and permanently maintaining the branch home authorized by the 1887

24 legislation.38The deed conveying the land ("1888 Deed") provided, in pertinent part,

25

38 The 1888 Deed conveyed 300 acres to the National Home. In 1899 and 1921, successors

to Senator Jones and Mrs. de Baker conveyed additional land to the National Home to further the 26 purpose of permanently maintaining the National Home. All 387 acres of the WLA Campus were

conveyed through the 1888 Deed and the two later deeds from the original donors' successors. 27
In 1888, John Wolfskill also conveyed 300 acres of adjacent land to the National Home.

28 The land conveyed by that deed is now used as a national cemetery and federal buildings and is not a part of the WLA Campus.

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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 36 of 113 Page ID #:263
WITNESSETH: That whereas by an act of Congress approved March 2nd, 1887, toprovide for the location and erection of a branch home Tor disabled volunteer soldiers West of the Rocky Mountains, the Board of Managers of the National Home for Disabled Volunteer Soldiers, were authorized, empowered and directed to locate, establish, construct and permanently maintain a branch of said National Home for Disabled Volunteer Soldiers, to be by such Board, located at such place in the States West of the Rocky Mountains as to said Board should appear most desirable and advantageous. . . .
And whereas, the parties hereto of the first part [grantors] in consideration that the party hereto of the second part [National Home] should locate, establish, construct and permanently maintain a branch of said National Home for Disabled Volunteer Soldiers on a site to be selected by its Board of Managers along the dividing line between the Ranchos San Jose de Buenos Ayres anc. San Vicente y Santa Monica offered to donate to the said party of the second part, three hundred acres of land, being a portion of said Rancho San Vicente y Santa Monica, belonging to them, the said parties of the first part, on which to locate, establish, construct and permanently maintain such branch of said National Home for Disabled Volunteer Soldiers. . . .
Now therefore, in consideration of the premises and of the location, establishment construction and permanent maintenance of a branch of said National Home for Disabled Volunteer Soldiers on such tract of land so selected and of the benefits to accrue to the said parties of the firstpart, owners of the said Rancho San Vicente y Santa Monica, by such location have given and granted and by these presents do give and grant unto the said party of the second part, all the following described land and premises, situate lying and being in the County of Los Angeles, State of California and particularly bounded and described as follows: . . . for the purpose of such branch Home for Disabled Volunteer Soldiers to be thereon so located, established, constructed and permanently maintained. A true and correct copy of the 1888 Deed is attached as Exhibit 1, and a true and
correct copy of a typed transcription of the 1888 Deed is attached as Exhibit 2.
90. The Pacific Branch of the National Home ("Pacific Branch Home")
opened in 1888 and housed approximately one thousand veterans in temporary
barracks until the permanent quarters were completed in 1891 and 1893.
91. Consistent with the goal of providing a home for soldiers, the grounds at
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 37 of 113 Page ID #:264
the Pacific Branch Home were transformed into a beautiful, park-like setting. A hospital and other buildings were erected on the campus throughout the 1890s. The Pacific Branch Home also built a trolley line and erected a streetcar depot, which transported freight and mail to and from the campus. Residents could easily travel to the nearby Santa Monica beaches from the campus for rest and recreation. A chapel was built in 1900 to hold daily services and burial services for deceased veterans. In the early 1900s, the Pacific Branch Home built dormitories with wide porches to replace the original barracks and opened a dining hall that could seat 760 members at one time. A post office with more than 600 private letter boxes operated on the campus, as well as a store where residents could eat lunch and purchase cigars, fruits, candy and other articles.
92. In addition to ensuring residents' access to housing, food and medical care, the Pacific Branch Home also developed the campus to provide educational and vocational activities for the veteran residents. For example, the Pacific Branch Home boasted a library with more than 10,000 volumes and newspapers and periodicals from around the country. The residents grew vegetables and tended orchards and livestock on the campus, supplying their own needs and selling the surplus. The Pacific Branch Home maintained a baseball team and athletic facilities, built a billiard hall for the residents, founded an aviary where residents could spend time, and developed work programs to employ residents around the campus in various capacities. The Pacific Branch Home also had a home band that performed daily, and lectures and movies were regularly hosted on the campus. Residents could
attend all events on the campus free of charge. By 1922, approximately 4,000
veterans were provided permanent housing at the Pacific Branch Home, with about 600 of them under hospital care.
93. In 1930, Congress consolidated the National Home with other veterans' programs in the newly established Veterans Administration, the immediate predecessor to DVA. Accordingly, control over the various branch homes, including
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 38 of 113 Page ID #:265
the Pacific Branch Home, transferred to the Veterans Administration. Title to the land upon which the branch homes were situated was also transferred to the Veterans Administration as the National Home's successor-in-interest to all land to which the National Home held title.
94. The Pacific Branch Home campus experienced tremendous development from the 1930s to 1950s, and many of the existing buildings on the WLA Campus were erected during this time. For instance, the Veterans Administration built additional hospital buildings and medical care centers on the campus, in addition to updating and upgrading the hospital and the residences for disabled veterans who continued to reside on the campus. It appears, however, that, beginning in the 1960s and 1970s, new residents were not accepted at the campus, and the structures formerly dedicated to permanent housing were repurposed or fell into disuse. DVA was established as a cabinet-level agency in 1989.
95. Today, there are approximately 104 buildings on the WLA Campus. Many of the buildings are vacant, closed, or underutilized. No permanent housing is available to disabled veterans on the WLA Campus. Instead, VA GLA offers only inpatient hospital care and emergency or transitional shelter beds for disabled and homeless veterans on the WLA Campus, even though it has built 13 houses on the WLA Campus to house VA GLA senior staff. Indeed, in contrast to the original intent of the grantors that the land be used to provide a permanent home to disabled veterans, the mission statement of VA GLA, which now operates and controls the WLA Campus, focuses exclusively on providing medical treatment to veterans and serving as a research and teaching hospital.
96. According to VA GLA, the WLA Campus "is perceived to be one of the most valuable parcels of real estate in the western United States." VA GLA MASTER PLAN at 8. Numerous commercial and other non-DVA programs operate on the WLA Campus under leases, memoranda of understanding, revocable licenses, or enhanced sharing agreements, all of which were approved by Defendant Beiter or her
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1 predecessors as Director of VA GLA. As a result of these land use deals, veterans

2 have limited access to or are altogether prohibited from accessing 110 acres of the

3 387-acre WLA Campus, and DVA and VA GLA cannot utilize that land to provide

4 housing to veterans or otherwise expand the services offered to veterans on the WLA

5 Campus. In addition, portions of the land have been offered for rent in connection

6 with events and for various other for-profit uses, including filming for movies and

7 television shows.

8

97. There has not been a public accounting of how much money VA GLA

9 has received under these private deals and where any such revenue has been directed,

10

11

Services Currently Offered by VA GLA at the WLA Campus

12

98. The VA GLA operates the West Los Angeles Medical Center on the

13 WLA Campus, offering care in the following areas: medicine, surgery, psychiatry,

14 physical medicine and rehabilitation, neurology, oncology, dentistry, geriatrics, and

15 extended care. Research and academic medical training are also conducted on-site.

16 In addition to the services offered on the WLA Campus, veterans can access certain

17 outpatient services from VA GLA through three ambulatory care centers and eleven

18 community treatment centers. The WLA Campus contains numerous medical and

19 residential treatment facilities, including inpatient and outpatient health care and

20 mental health care and geriatric long-term care services.

21

99. Unfortunately, as the experiences of Plaintiffs Valentini, Moraru, Doe,

22 Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas detailed

23 below demonstrate, the system has been designed and is operated in a manner that

24 prevents the most severely disabled veterans from accessing VHA services and

25 benefits for which they are otherwise eligible, including the establishment of

26 eligibility criteria that prohibit veterans with serious mental health disabilities from

27 participating in housing and other programs for which they are otherwise eligible.

28 Additionally, seriously disabled veterans like Plaintiffs Valentini, Moraru, Doe,

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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 40 of 113 Page ID #:267
Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas cannot meaningfully access the medical and residential care services to which they are entitled under the VHA benefits program.
100. The 953-bed James Wadsworth Hospital provides inpatient and outpatient services to veterans. Inpatient medical services include all acute medical, surgical, rehabilitative, and mental health care for veterans in the Greater Los Angeles area. The hospital is also the primary referral center for cardiology, neurosurgery, and radiation oncology. Outpatient services provided at the hospital include primary care exams, services provided by clinical specialists, immunizations-,and preventative screenings.
101. VA GLA operates a skilled geriatric nursing facility on the WLA Campus. The Community Living Center has 352 beds for elderly veterans, although only 226 of the beds are currently operating.
102. VA GLA provides long-term rehabilitative care on the WLA Campus at the West Los Angeles Polytrauma Site. This facility is dedicated to patients with injuries to more than one physical region or organ system resulting in physical, cognitive, psychological, or psychosocial impairments and functional disabilities. Services are provided primarily on an outpatient basis.
103. VA GLA offers psychiatric, mental health, and substance abuse services at several facilities on the WLA Campus. Treatment programs are available for alcohol and substance abuse, PTSD, and serious mental illness. VA GLA offers some of these services on an outpatient basis, including counseling, group sessions, medication management, and a day treatment center.
104. VA GLA offers no permanent supportive housing to disabled veterans. Temporary shelter services are offered through the 321-bed Domiciliary Residential Rehabilitation and Treatment Program ("Domiciliary"). This program provides temporary shelter beds along with medical, psychiatric, and substance abuse treatment, as well as other therapeutic services. A substantial number of the beds are
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 41 of 113 Page ID #:268
dedicated to programs focused on substance abuse recovery and not tailored to address serious mental health needs. Veterans are assigned to a Domiciliary bed on a short-term or intermediate basis; the length of stay ranges from 30 days to a maximum of two years. The Domiciliary is structured so that residents generally live in a barracks-style room with two or three other residents, even if they have a mental health condition that makes it difficult or impossible to function in such tight quarters with other people, particularly strangers. Although a limited number of single rooms are available (fewer than 20), veterans generally must "earn" their way into in a single room by maintaining compliance with the treatment program over a- -period of time. Additionally, veterans assigned to a Domiciliary bed are discharged if they use alcohol or drugs and may be discharged for not fully participating in treatment or group sessions mandated by the Domiciliary staff, or for failing to make sufficient progress toward treatment goals. Finally, the Domiciliary refuses admission to veterans who have serious mental disabilities involving psychosis and/or who must take psychotropic medication.
105. In total, VA GLA operates facilities on the WLA Campus with approximately 1500 beds, of which more than 1150 are dedicated to inpatient hospital care or skilled nursing care for elderly veterans. VA GLA stated in a January 2011 report, however, that it currently operates only 740 beds on the WLA Campus, including 261 acute hospital beds, 158 nursing home beds, and 321 Domiciliary beds. Additionally, VA GLA stated in its 2010 Annual Report that it operates only 770 beds, including 226 acute hospital beds, 188 skilled nursing home beds, 52 non-acute hospital beds, and 304 Domiciliary beds. These beds, however, are not made available as permanent supportive housing, but rather are used as temporary shelter with limitations on eligibility that often exclude homeless veterans with serious disabilities. Moreover, of these beds, a substantial number are set aside for substance abuse treatment programs, and these programs are not designed to provide services sufficient or appropriate to address serious mental health conditions.
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106. In addition to the beds operated by VA GLA, several residential programs are operated by third parties on the WLA Campus, including a geriatric care facility operated by the State of California and shelter and residential treatment programs operated by two non-profit organizations.
107. The Veterans Home of California, which opened on the WLA Campus in 2010, is run by the State of California and provides nursing care for veterans over age 62. The 396-bed home includes an 84-bed elderly residential care facility, a 252-bed skilled nursing facility, and a 60-bed unit designed for Alzheimer's and dementia patients. At present, this facility is operating at less than 10 percent of its- -maximum capacity.
108. The Haven is an emergency housing program run by the Salvation Army of Southern California on the WLA Campus. Its goal is to provide housing and support services to 225 homeless or at-risk veterans. The Haven includes five programs: short-term housing for 35 veterans in Alpha Center, transitional housing focused on substance abuse recovery for 95 veterans at Victory Place, supportive housing for 15 female veterans at Naomi House, a board and care facility for 90 mentally ill veterans at Exodus Lodge, and senior housing for 25 male veterans age 60 and older.
109. New Directions, Inc. operates two residential programs on the WLA Campus. The New Directions' Regional Opportunity Center serves 156 veterans, including 24 beds for detoxification, 24 beds for "Shelter Plus Care" transitional housing for elderly or disabled veterans, and 108 beds for residential substance abuse and mental health programs. The New Directions North provides substance abuse treatment and mental health services for up to 50 homeless veterans with cooccurring mental illnesses.
110. As with the VA GLA-run Domiciliary, virtually all of the emergency and transitional beds operated by the non-profit providers on the WLA Campus require residents to share rooms. Moreover, although the services provided at these
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facilities are appropriate and necessary for some veterans and the availability of emergency and transitional beds is important for some veterans, these programs are neither designed nor intended to meet the needs of veterans with severe mental disabilities or brain injury. Finally, by their nature as short-term and transitional beds, these programs cannot provide the long-term stability that veterans with severe disabilities require in order to meaningfully access medical and therapeutic services offered by VA GLA.
111. The Salvation Army also operates the 40-unit Westwood Transitional Village on the WLA Campus. Only homeless families are eligible. Approximately -150 individuals live in the Village, with families of veterans making up 40 percent of the residential population. The Village provides residents with counseling, case management, educational training, employment placement assistance, medical clinic services, and childcare.
112. In addition to the residential beds available on the WLA Campus, VA GLA has contracted with private providers within its service area to secure around 1,200 transitional housing beds for veterans. The duration of these programs is between three and eighteen months. VA GLA also contracts with private providers in the community for short-term residential treatment (detoxification) beds. Veterans in these programs have to travel to the WLA Campus or another VA GLA service location if they wish to access services from VA GLA.
113. VA GLA also reported that in fiscal year 2010 it received 550 housing subsidy vouchers for veterans. A 2009 report prepared by VA GLA reflected that there were only 1,317 permanent housing beds accessible to veterans in its service area that are "veteran-specific." These beds are not located near the WLA Campus, so disabled veterans, including veterans with serious mental disabilities or brain injuries, who are placed in these beds must travel to the WLA Campus or another VA GLA service location if they wish to access services from VA GLA.
114. In short, VA GLA provides services for veterans only at the WLA
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 44 of 113 Page ID #:271
Campus and the three ambulatory clinics and nine community clinics located throughout its service area, such that veterans must travel to these locations to access medical, mental health and other therapeutic services from VA GLA. VAGLA offers only a limited number of emergency or transitional beds and time-limited residential treatment beds on the WLA Campus with qualification requirements that often exclude disabled veterans who are chronically homeless. To the extent that veterans have access to additional transitional housing beds through VA GLA contracts with off-site providers and to a limited stock of permanent housing through VA GLA's housing voucher program, these beds are not located near the WLA Campus and other VA GLA facilities where V1-Lk benefits are offered.
Plaintiffs Have Been Denied Access to the VHA Benefits Offered by VA GLA Solely by Reason of Their Disabilities 115. Although Defendant Shinseki and other senior officials within DVA and, more specifically, Defendant Beiter and other senior officials within VA GLA, are aware that a substantial number of veterans eligible for VHA benefits within the VA GLA service area have severe mental disabilities or brain injuries that require that they have stable housing in order to access necessary services, Plaintiffs' experiences demonstrate that Defendants have discriminated and will continue to discriminate against Plaintiffs and other veterans with serious mental disabilities solely by virtue of their disabilities. 116. Defendants have made decisions that facially discriminate against Plaintiffs because of their disabilities, including: • Refusing Plaintiffs admission to housing programs offered by VA GLA because of their severe mental disabilities or because they must take psychotropic medication to treat their severe mental disabilities; and • Refusing to provide services that are necessary for the treatment of Plaintiffs' severe mental disabilities, while providing services necessary for the treatment
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 45 of 113 Page ID #:272
of veterans who do not have severe mental disabilities. 117. Defendants have also denied Plaintiffs meaningful access to services offered by VA GLA in numerous ways, which include, but are not limited to: • Imposing conditions for access to or continued participation in programs or services that Plaintiffs cannot satisfy as a result of symptoms or characteristics of their disabilities; • Providing services or treatment in settings that Plaintiffs are unable to access as a result of symptoms or characteristics of their disabilities; • Failing to provide sufficient assistance to Plaintiffs when the symptoms or characteristics of their disabilities prevent them from identifying available services from which they would benefit, or applying for or otherwise navigating the intake, screening, or referral processes to access those services; • Failing to provide treatment and support that is necessary for the appropriate treatment of Plaintiffs' disabilities, while providing appropriate treatment and support to veterans who do not have disabilities or who have different disabilities; and • Failing to provide the reasonable accommodation of permanent supportive housing to those veterans who, by reason of their mental disabilities, are unable to meaningfully access appropriate treatment without it. As a consequence, the design and structure of the VI-IA benefits delivery system within VA GLA, including the procedural and screening requirements imposed to access services and the decision to locate all services only at the WLA Campus and the few other sites operated by VA GLA, effectively excludes these veterans or creates substantial and, in some cases, insurmountable barriers to accessing necessary medical, mental health, and other services to which these veterans are entitled. //
//
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Greg Valentini 118. Plaintiff Greg Valentini was born in Hawaiian Gardens and grew up in
Southern California. He is currently 33 years old. He served multiple combat tours in Afghanistan and Iraq. Since coming home, he has been diagnosed with severe PTSD and has struggled with homelessness, substance abuse, and thoughts of suicide.
119. Mr. Valentini grew up in Long Beach and Lakewood. He went to Lakewood High School, where he played baseball and basketball. His father, a Marine, instilled in him a sense of duty and service. After working with the Lakewood Department of Parks and Recreation and several other odd jobs, Mr. Valentini decided to join the Army to finance his higher education and enlisted in May 2000.
120. Mr. Valentini received basic training in Fort Benning, Georgia, and was selected for further training at Fort Bragg, North Carolina. He was assigned to the 82nd Airborne Division and then to the 101st Airborne Division. In October 2001, he was deployed to Afghanistan as part of the initial assault on the Taliban and alQaeda after September 11.
121. Mr. Valentini's first mission was to take control of the Taliban-held airport at Kandahar, which involved heavy combat. Many of his fellow soldiers were killed. He also witnessed a number of civilian deaths and was tasked with transporting the dead bodies of the civilians.
122. In February and March of 2002, Mr. Valentini's unit was part of Operation Anaconda in the Tora Bora Mountains, searching for Osama bin Laden and other elements of the al-Qaeda and Taliban leadership. He took part in significant ground fighting, under nearly constant sniper fire and mortar bombardment. Again, he witnessed the gruesome deaths of numerous civilians, including children.
123. In February 2003, Mr. Valentini's unit was taken out of Afghanistan and reassigned as part of the invasion force in Iraq. The unit's assignment was to
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1 clear, secure, and hold certain key areas near Karbala while other forces moved

2 toward Baghdad. He again experienced heavy combat, involving the deaths of

3 soldiers and civilians.

4

124. Although his tour of duty was slated to end in March 2003, Mr.

5 Valentini was "stop-lossed" and continued to serve in combat operations in Iraq for

6 several more weeks. He was honorably discharged in May 2003.

7

125. In recognition of his service, Mr. Valentini has received the Army

8 Commendation Medal, the Army Achievement Medal, the National Defense Service

9 Medal, the Armed Forces Expeditionary Medal, the Army Service Ribbon, and the-

10 Expert Marksmanship Qualification Badge with Rifle Bar. As a consequence of his

11 service and experiences in Afghanistan and Iraq, he also developed what was later

12 diagnosed as a severe case of PTSD.

13

126. On returning to life as a civilian, Mr. Valentini moved back in with his

14 father in the Long Beach area and tried to attend Long Beach City College on the

15 "G.I. Bill." He studied the administration of justice with the goal of becoming a

16 police officer, but he had trouble relating to his classmates and controlling his

17 emotions. When someone would comment on the Iraq or Afghanistan wars, for

18 example, he became uncontrollably angry, leading to several altercations.

19

127. Mr. Valentini felt constantly "on alert," as if he was in combat. He

20 could not focus on conversations, instead paying attention to his surroundings, as if

21 expecting an ambush. He would repeatedly get up to check if doors were locked and

22 stare compulsively at passing cars to see if anything seemed suspicious. He was

23 paranoid that passers-by were investigating him in some way. Because he felt that

24 he had to be constantly vigilant to protect himself and the people around him, he had

25 trouble sleeping. When he managed to sleep, he had graphic nightmares about things

26 he witnessed during his wartime service.

27

128. Mr. Valentini soon began to think about suicide as a way to escape the

28 constant stress of feeling that he never left the combat zone. Three or four times a

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week, he spent hours thinking about where and how to kill himself. As he became angrier, the suicidal thoughts increased in frequency. He told those closest to him that he wished he had died in Afghanistan or Iraq; coming home in a flag-draped coffin, he said, would have been better than coming home to a community that did not understand what he was going through.
129. In order to deal with the stress, Mr. Valentini started using methamphetamine. The methamphetamine kept him awake, and kept his mind away from thoughts of war. It also made him so exhausted that he was able to fall asleep instead of lying awake thinking about what he saw in Iraq and Afghanistan, and when he slept, he experienced fewer nightmares. Eventually his father ordered him to go to the DVA hospital in Long Beach. A doctor there diagnosed Mr. Valentini with severe PTSD.
130. Mr. Valentini managed to remain sober for about 16 months, from-2004 to 2006, and continued living with his father during this time. Eventually, however, he again turned to methamphetamine to cope with the recurring violent thoughts and stress, and he left his father's house. In 2006, he began sleeping in a tent near the Long Beach Airport. He collected cans, and paid $1 to shower at the YMCA. When he ran out of money he ate discarded fast food he found on the street, first wiping off the ants, and bathed in the lake by a golf course. He learned which public restrooms he could use in the area. He stole from businesses to pay for the drugs he used to cope with his stress and to take his mind off a reality that embarrassed him. Sometimes other homeless veterans joined him by the airport, sleeping nearby.
131. Mr. Valentini continued living on the streets until 2008, when, after several rainstorms, his father agreed to let him move back into the house. When he began using methamphetamine again after four months, however, his father asked him to leave. Mr. Valentini was again homeless, and aside from a few short respites, has been homeless since. He was briefly admitted to the Domiciliary but felt that the staff seemed more interested in finding reasons to kick him out than helping him,
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which made him more anxious and stressed. In the Domiciliary, he was forced to share a room with three other veterans also struggling with addiction and who also had difficulty interacting with other people. One of those roommates told Mr. Valentini that his brother could supply him with methamphetamine, which made it easier for Mr. Valentini to relapse. That roommate soon died after overdosing on heroin.
132. Since October 2008, Mr. Valentini has spent time on the streets, in shelters, in his father's house, in a girlfriend's house, and in jail for petty theft or commercial burglary to obtain money for drugs. He has difficulty managing his PTSD symptoms in these circumstances; he feels constantly in "combat mode," always on alert, continuously anxious and tense. As a condition of his probation, he was sent to a transitional housing and treatment facility operated by a non-profit organization, where he is now staying. He is currently clean, although he has experienced several relapses.
133. Mr. Valentini recently completed his stay at the transitional housing program and received a housing voucher through VA GLA. He recently obtained an apartment in Hollywood with his voucher, where he is living by himself. Although he now has a place to live, he worries, based on his mental disability and his past experience, whether he will be able to comply with the housing voucher program requirements and maintain his apartment.
134. Mr. Valentini also worries about his ability to access necessary treatment and services from VA GLA to address his PTSD. He finds it difficult to take public transportation, because riding with a group of strangers triggers his PTSD. Prior to taking the bus to the WLA Campus to access treatment, he must spend a half-day or more mentally preparing himself for the trip. Once on the bus, he feels that he must station himself near an exit and maintain a visual map of where the location of everyone and everything. On numerous occasions he has felt so overwhelmed that he had to get off the bus before reaching his destination, causing
47

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him to miss important appointments. 135. Mr. Valentini's goal is to complete his college degree and obtain a
Masters in Social Work at USC, where there is a military social work program. He is currently taking classes at Los Angeles City College; he sits in the back of the classroom, near the exit, where he feels safest. He wants to help other combat veterans avoid what he has gone through. Unless he can maintain stable housing, however, Mr. Valentini feels unable to manage his PTSD and addiction effectively. He worries that he will be on the streets again soon.
136. Since coming home after his service in Iraq and Afghanistan, Mr. Valentini has met and befriended many other veterans with serious PTSD who have, like him, medicated themselves with street drugs. He knows that those drugs bring only temporary relief, but he has found it difficult to address his PTSD without a safe, stable place to live.
Adrian Moraru 137. Plaintiff Adrian Moraru is 37 years old. He was born in Romania and is
a legal permanent resident of the United States. After his service in Iraq as a Marine, he was diagnosed with PTSD and bipolar disorder.
138. Mr. Moraru grew up in Philadelphia, Pennsylvania. He enlisted in the Marines in 1999 at age 26 and trained at Parris Island. He was stationed at Twentynine Palms, California, and served in Okinawa before being sent to Iraq as part of the initial invasion force for OIF.
139. In March 2003, Mr. Moraru's unit encountered a chemical pool while on a convoy to Baghdad. He and his fellow Marines were not wearing chemical warfare protection gear and were exposed to the chemical for 10 to 15 minutes. After his unit reached Baghdad, they were sent to Karbala. In April 2003, while assigned to guard an Iraqi bank, he stated in a media interview that he always had to remain "on alert" and needed eyes in the back of his head. He commented,
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"Sometimes, it seems like I survived the war and I could be shot in the back by a 9year-old. It was almost easier during the war. At least you knew where the enemy came from. Here, it could be anyone." When his term of service ended after returning from Iraq in June 2003, he held the rank of corporal.
140. Mr. Moraru lived in Las Vegas until the summer of 2005, when he moved to Philadelphia to pursue an employment opportunity. He worked for several months installing satellite dishes for Direct TV and lived with his parents.
141. One day in August 2005, Mr. Moraru suddenly experienced uncontrollable rage and went into his mother's living room and destroyed the contents of the room while his mother hid in the basement. After that incident, he spent a week or two at a mental hospital.
142. Mr. Moraru stayed with his sister in Philadelphia for several weeks after leaving the hospital, but she had young children and eventually asked him to leave. Because his parents refused to let him back into their house, he moved into a car parked on the street in front of the house, sleeping there for about six months, through the winter, until around March 2006. During this time he developed boils on his hand and groin that he believes are a result of his exposure to the chemical pool in Iraq. Although he was in tremendous pain, his paranoia prevented him from seeking medical treatment. No one from DVA contacted Mr. Moraru or his family during this time, or attempted to connect him to any services that might help him.
143. Because Mr. Moraru continued to argue with his father, his father no longer allowed him to sleep in the car. Mr. Moraru flew to Las Vegas, where two of his friends from the Marines lived. One of the friends arranged a job for him at a 7Eleven. Due to his mental state; however, he was unable to work more than one pay period. He took the $430 he earned and took the bus to San Diego, though he had no contacts in the city. After exhausting the last of his money in less than a week, he began collecting cans and eating out of trash bins around Ocean Beach. He stayed in San Diego for about eight months. During that time he lost his ID and his green card
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1 expired, and he had no money to renew it. He also developed a large boil on his

2 back that he believes is a result of exposure to the chemicals in Iraq. He stopped

3 drinking after getting the boil.

4

144. After eight months in San Diego, Mr. Moraru's friend in Las Vegas

5 wired him enough money to take the train to Los Angeles. Things deteriorated

6 further upon his arrival there. He stopped collecting cans and obsessively marched

7 up and down Wilshire Boulevard between downtown and the beach, walking up to

8 20 miles a day and collapsing to sleep when he could not walk further.

9

145. Mr. Moraru eventually stopped marching in Beverly Hills. One day, he--

10 was struck with the impulse to pick up a chain that was used to secure chairs on a

11 restaurant patio. He does not know what possessed him to take the chain. Four

12 police officers approached him and told him to drop it. When he stood up with a

13 stick in his hand, they subdued and arrested him. During his subsequent arrest and

14 booking, he told everyone that he was God.

15

146. As a part of a plea deal, Mr. Moraru was released for 30 days served in

16 county jail and received three years probation. He then walked to Westwood and

17 slept behind the Equinox health club for about three months. During this time,

18 because he had stopped drinking, he was able to save $160.

19

147. Around August 2009, Mr. Moraru went back to Las Vegas, where his

20 friend helped him get a ticket to Philadelphia. He moved back in with his parents,

21 but had trouble staying in a house with other people, and they again asked him to

22 leave. He then moved his remaining belongings from his parents' house to a lot

23 behind a Wawa convenience store, where he slept. He told passers-by that he owned

24 the store. When the police forced him to leave, he moved to another Wawa location.

25 He does not know what possessed him to stay near Wawa stores.

26

148. After some time, Mr. Moraru's parents allowed him to move into their

27 garage. His sister helped him renew his green card, because he could not afford the

28 $375 renewal fee. He never went to DVA facilities in Philadelphia, because he did

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1 not believe there was anything wrong with him.

2

149. After managing to save $90, Mr. Moraru flew back to Los Angeles in

3 August 2010 and again slept behind the Equinox. The next month he suffered a

4 violent seizure. Several other homeless residents of the area, whom he had gotten to

5 know, suggested he visit the WLA Campus. After arriving there early in the

6 morning, he waited hours to be seen and saw other vets with mental disabilities leave

7 because they could not wait any longer. He briefly saw a doctor who again told him

8 to sit and wait. After waiting until 4:30 p.m., he left.

9

150. Mr. Moraru later visited the WLA Campus again and forced himself to "-

10 wait for his name to be called. He received a physical, was referred to see a

11 psychiatrist, and was then placed in The Haven, where had to share a room with

12 three other residents. Moreover, treatment at The Haven focused on alcoholism and

13 drug addiction, but he had stopped drinking and did not use drugs. VA GLA staff

14 did not inform him of other options where he could have lived, if any existed. After

15 ten days at The Haven, he assaulted another resident and was forced to leave the

16 program.

17

151. Before he was discharged from The Haven, Mr. Moraru was assessed

18 for admission to the Domiciliary. He was denied admission to the Domiciliary

19 during the screening process, before he was even interviewed by Domiciliary staff,

20 because he had a history of psychiatric instability and aggressive behavior.

21

152. After Mr. Moraru was discharged from The Haven, he again became

22 homeless, this time in Abbot Kinney park in Santa Monica, and his condition

23 continued to deteriorate. He spent his entire day cleaning up the park, picking up

24 cigarette butts and other garbage.

25

153. Mr. Moraru continued to try to attend his appointments at the WLA

26 Campus with Dr. McKenna, a psychiatrist. She diagnosed him with PTSD and

27 bipolar disorder. He saw Dr. McKenna about once every month to manage his

28 seizure medication. He received no medication for his PTSD or his bipolar disorder.

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1

154. At one point, a VA GLA employee asked Mr. Moraru if he wanted

2 housing. He replied that he did not need housing because he was "living" in Santa

3 Monica. His mental condition prevented him from seeing anything wrong with

4 sleeping in the park and picking up garbage all day. In addition, his bad experience

5 at The Haven left him with a negative impression of housing offered through VA

6 GLA.

7

155. About six weeks ago, Mr. Moraru picked up some pipes in the park that

8 he thought were garbage. Someone told him to put them down. He became angry,

9 told the man that he would beat him, and threw the pipes in a dumpster. The next

10 day, he was arrested and charged with robbery and criminal threat. Mr. Moraru

11 accepted a plea deal to participate in a transitional housing program run by a non-

12 profit organization in Hollywood for one-year as a condition of probation. He has

13 been staying there for about a month.

14

156. Mr. Moraru wants a private apartment that will allow him to go to the

15 WLA Campus for appropriate treatment and medications. He does not know what

16 he will do when he finishes the transitional housing program, and he is afraid that if

17 he has to leave the program he will have nowhere to go but back to living on the

18 streets, where his mental health will continue to deteriorate.

19

20 Jane Doe

21

157. Plaintiff Jane Doe was born in Pasadena, California. She is a veteran

22 and is currently homeless. VA GLA psychiatrists have diagnosed her with PTSD

23 related to military sexual trauma.

24

158. Ms. Doe's family has deep ties to the military, and five of her six

25 brothers served in the military. Her brother Donald was a Marine and served in

26 Vietnam. He died in 2005. Her brother George served in Vietnam and was a POW.

27 He used drugs after the war and died in 2005. Her brother Bill served seven tours in

28 Vietnam. He has addiction issues and a 100 percent service-connected disability.

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1 Her brother Phillip served in the Gulf War and now has PTSD. He developed

2 asthma from CS gas exposure and now uses drugs. Like Ms. Doe, he is homeless

3 and lives in Los Angeles. Her brother Hamilton served in the Gulf War.

4

159. Ms. Doe joined the military after obtaining her GED at the age of 16,

5 planning to make a career of it. In 1974, she went to Fort Jackson, South Carolina

6 for basic training. She then completed Advanced Individual Training in Radio

7 Communications at Fort Dix, New Jersey. In the barracks, she was attacked and

8 raped by a group of women. She was raped again by a mess sergeant in the back seat

9 of military vehicle while another man looked on.

10

160. In December 1974, Ms. Doe was sent to Germany and worked as a

11 radio operator. She returned to the United States, was briefly stationed at Fort Sam

12 Houston in Texas, and was then sent back Germany. While in Germany, she was

13 again sexually assaulted by a group of men. After that incident, she was hospitalized

14 in a psychiatric care unit. Because she felt ashamed, she did not report the sexual

15 assaults at the time.

16

161. Ms. Doe's mother became ill in 1980, and she received a humanitarian

17 discharge to help take care of her. She obtained a job with Bank of America in the

18 collections department, but quit because of job circumstances that exacerbated her

19 PTSD symptoms. She then held various security jobs, but had difficulty keeping

20 them because she frequently lost her temper, which is a consequence of her PTSD.

21 During this time, however, she did not realize that she had PTSD.

22

162. In 1997, Ms. Doe lost her security job, and one of her brothers drove her

23 to the WLA Campus because she was having a mental breakdown. She was

24 immediately committed to the pSychiatric ward and placed on suicide watch. This

25 was the first time she received services from DVA.

26

163. Ms. Doe was diagnosed with PTSD secondary to military sexual trauma.

27 Because there was no women's clinic at VA GLA at the time, she was transferred to

28 the Domiciliary. At that time, there were only five or six other women there, but she

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had to share a room with three other women. She was in constant fear of being attacked. When she was able to sleep, she would wake up with nightmares.
164. There were no women's therapy groups at the Domiciliary, so Ms. Doe had to participate in group sessions for addiction, even though she had no addiction issues. The sessions did not help with her PTSD, because the sessions focused only on addiction and the facilitators never discussed flashbacks or nightmares, which were two of her main problems. Ms. Doe also met once a week with a psychologist, Dr. Vivian Gold, who worked well with her. During these sessions, she was able to talk about her PTSD symptoms. She eventually was transferred to a single room, which lessened her anxiety and fear considerably. As a result of her sessions with Dr. Gold and having a safe, secure place to live, Ms. Doe felt like she was starting to make progress.
165. But three or four months later, a board at the VA GLA created a discharge summary. Ms. Doe knew that she was not yet in a position to live successfully on her own. She told the board that she was still having intense flashbacks about her trauma, but they nonetheless forced her to leave sometime in 1999.
166. When Ms. Doe left the Domiciliary, there were no transitional services so she was told to go to Skid Row. She moved into a room at the Boyd Hotel for $250 per month. She never felt safe there, because she could access a bathroom only by leaving her room and walking down a public hallway and there were people living in cardboard boxes around the Boyd Hotel and lots of open drug use in and around the hotel. Although she tried to continue seeing Dr. Gold, VA GLA told her that Dr. Gold worked only with people living at the Domiciliary. She instead received psychological services at the mental health day treatment building on the WLA Campus.
167. Being forced to leave the WLA Campus for a Skid Row hotel was a major setback in Ms. Doe's treatment. She did not feel secure even in her own bed
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1 and began having difficulty sleeping and experiencing acute anxiety. She had to take

2 the bus to the WLA Campus for counseling, but traveling on the bus was difficult

3 because her PTSD caused her extreme anxiety when she was around crowds of

4 strangers. Consequently, traveling to the WLA Campus to access mental health

5 services was a problem.

6

168. Ms. Doe then moved back to Pasadena, but when her brother kicked her

7 out of the house, she lived out of her car. She continued to experience severe PTSD

8 symptoms, because she had not received appropriate treatment or support after she

9 was discharged from the Domiciliary. She did not know where to turn for help.

10

169. In 2008, Ms. Doe tried to go back to the Domiciliary but was told it had

11 no programs for women with PTSD. Instead, she was referred to The Haven, a

12 transitional shelter on the WLA Campus. She stayed at Naomi House, a women's

13 shelter on the third floor of an otherwise all-male building. As a rape victim, it was

14 very difficult for her to leave and to enter the building with all the men around.

15 Additionally, there were no programs to meet her PTSD needs.

16

170. Eventually, the Domiciliary began a program for women with PTSD,

17 and Ms. Doe was accepted. By the time she transferred there, however, VA GLA

18 had replaced the PTSD program with an addiction recovery program. When she and

19 a few other women with PTSD who enrolled in the program complained, VA GLA

20 simply changed the title to a "recovery" program without changing the content or

21 therapeutic approach. The mandated group sessions focused exclusively on drug and

22 alcohol addiction, and her therapist was a drug addiction specialist, with no training

23 in military sexual trauma or PTSD. Her third session with the addiction specialist

24 focused on discharge planning, which made her feel as though she was being pushed

25 out the door as soon as she had arrived, regardless of whether she was doing better or

26 receiving the care she needed.

27

171. The Domiciliary tried to discharge her after only four months, but Ms.

28 Doe persuaded the staff to extend her stay by two months. She had difficulty

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1 concentrating on her treatment because she worried about where she would live after

2 the two-month extension ended.

3

172. Ms. Doe was eventually discharged from the Domiciliary because she

4 did not take a mandatory urine-analysis test. She simply forgot to show up for the

5 test, which should not have been surprising to the staff because her records reflect

6 that short-term memory loss is one symptom of her PTSD.

7

173. Ms. Doe told the staff that she did not feel safe on the streets and had

8 not made enough progress to feel stable. The only options she was offered were a

9 shared room at New Directions or psychiatric hospitalization, and she rejected the

10 former because of the shared-room requirement and the latter because she did not

11 believe it would be helpful. About an hour before she was supposed to leave, she

12 was handcuffed and taken to the mental lock-up ward, where she stayed overnight on

13 a psychiatric hold. The doctors at the ward discharged her the next day because she

14 did not meet the criteria for involuntary commitment. VA GLA referred her to the

15 Salvation Army Bell Shelter, a large dormitory-style homeless shelter, but her PTSD

16 prevented her from staying in such a setting.

17

174. Two days later, Ms. Doe learned that a slot opened for her at a

18 specialized DVA program in Menlo Park for women who experienced sexual trauma.

19 She was denied admission, however, because she did not meet the admission

20 requirement of having a stable place to live after completion of the program.

21

175. Ms. Doe is currently living with her sister-in-law and continuing to see

22 a therapist at the WLA Campus. Her unsettled living situation exacerbates some of

23 her PTSD symptoms, which undeimines her treatment. She continues to have

24 flashbacks and nightmares and is embarrassed when people see her with those

25 symptoms. When she does not have a private space, she tries to repress her trauma

26 so the symptoms do not surface. She knows this is not healthy and makes it harder

27 for her to be open in her treatment sessions.

28

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176. Ms. Doe wants to find her own place that is safe and secure and will allow her to access her VA GLA doctor so that she can receive the treatment she needs. She is trying to find a place to live in Los Angeles, but it has been difficult to find an apartment because her credit history is poor after being homeless for four years. VA WLA has not offered her any permanent housing.
Floyd Summers 177. Floyd Summers was born on June 2, 1956. He joined the U.S. Army
through a delayed-entry program in April 1975 and began his service in November1975. In the Army, he became a communications specialist.
178. After basic training, Mr. Summers was stationed in Germany, where he saw American soldiers who had returned from Vietnam with serious injuries sustained in combat. He became very anxious about being sent into combat, but he was required to participate in combat training and maneuvers while stationed in Germany. During this time, he began having nightmares and hearing voices and developed severe anxiety.
179. While he was stationed in Germany, Mr. Summers was pulled out of training and informed that his sister had died. He had four sisters and asked which • one had died, but no one could tell him. He flew back to the United States imagining that each of his sisters had died. When he got home, everyone was alive, although one of his sisters was in the hospital. After this experience, Mr. Summers began feeling afraid of the Army and worrying that he could not trust anyone there.
180. Mr. Summers was honorably discharged from the Army in February 1977, even though his term of commitment had been for longer, due to his mental disabilities. No one told him about DVA or any of the services and benefits it offered.
181. After he was discharged, Mr. Summers traveled around the country. He felt as though he could not stay still. Staying in one place made him feel
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"smothered." He tried to establish and maintain relationships, and he got married three times. Ultimately, he could not sustain relationships or jobs. He argued with everyone. He started using marijuana, heroin, and cocaine to help him cope. He does not remember a lot about this time in his life.
182. Eventually, Mr. Summers had a daughter, and he wanted to have a positive relationship with her. When she moved to Los Angeles with her mother, he moved there too. His goal was to stop doing drugs. In Los Angeles, he rented a room in a house and got a job in sales. Working was hard for him because he experienced severe mood swings, which he later discovered was a symptom of bipolar disorder. He lost his job in August 1995 and went to the WLA Campus for help with his mental problems.
183. At the WLA Campus, Mr. Summers was first diagnosed with a "probable" schizophrenic disorder. The staff asked him why he had taken so long to seek psychiatric treatment after being discharged from the Army. Mr. Summers had no answer. He was informed that his illness was not service-connected because too much time had passed. One of the doctors recommended that he stay in the psychiatric ward, but he chose instead to go home because he wanted to be alone.
184. One night in October 1995, Mr. Summers experienced hallucinations in which he heard voices telling him to behave in certain ways. He felt depressed and hopeless. He went to back to the WLA Campus the next day and told a doctor that he was scared. He told the doctor that he probably would have killed himself the night before if he had had a gun. The doctor checked him in to the psychiatric ward. After 30 days in the psychiatric ward, Mr. Summers was diagnosed with bipolar disorder and depression.
185. When he left the psychiatric ward, Mr. Summers did not have a place to stay. He stayed with friends when he could. His unstable living arrangements made it hard for him to keep up with his treatment. Additionally, he often felt disoriented and confused as a result of his mental disabilities, and he consequently forgot mental
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1 health and other appointments for VA GLA services and missed them.

2

186. Over the next few months, Mr. Summers returned to the psychiatric

3 ward. Whenever he left the WLA Campus, he was never given a comprehensive

4 discharge plan. When he was not on the WLA Campus, Mr. Summers would often

5 sleep on the streets or in a car. During those times, he spent most of his time looking

6 for food, so it was difficult to go back and forth to doctor's appointments.

7

187. In September 1998, Mr. Summers tried to reconcile with his wife and

8 daughter. He told his wife that he felt depressed and that he needed help. They

9 called the WLA Campus together and asked for help. His wife told emergency

10 services that she had children at home and that "she is not sure what the [patient] will

11 do to them if he is not admitted."

12

188. Mr. Summers was referred to New Directions. When he learned that he

13 could not possess prescription medications if he was admitted to New Directions, he

14 stopped taking his psychiatric and blood pressure medications to conform with this

15 policy. Nonetheless, he was eventually told that he was not suitable for admission to

16 New Directions.

17

189. Mr. Summers subsequently went to the emergency room at the hospital

18 on the WLA Campus with chest pains. During the intake process there, Mr.

19 Summers explained that he had been trying to get housing at New Directions, and he

20 was referred to the Haven. A VA GLA employee told him that he could stay at

21 Haven II and transfer to Haven I once he was back on his psychiatric medication and

22 had stabilized.

23

190. Mr. Summers stayed at the Haven for a few weeks, but was not

24 successful in the program. He felt that the program was too regimented, such that he

25 often felt "rushed" in his treatment and in planning for his discharge. After a while,

26 Mr. Summers starting feeling sick. He left the Haven and enrolled in the Addicted

27 Treatment Unit on an outpatient basis.

28

191. In the meantime, Mr. Summers returned to living on the street. He

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experienced feelings of severe hopelessness and depression again. He returned to the WLA Campus and asked about living in the Domiciliary and went through the screening process. The social worker helped him apply to the Domiciliary and explained the referral process. Mr. Summers attended the Domiciliary screening appointment and was admitted. However, he still had to wait for his admission to be scheduled. In the meantime, he was living on the streets and it was very cold outside.
192. On December 16, 1998, Mr. Summers moved into the Domiciliary. A few days before Christmas, he was informed that he had failed a drug test and was being discharged. A social worker met with. Mr. Summers to explain that he had to -leave the Domiciliary by December 21 with all of his belongings. At this meeting, Mr. Summers said that he did not have any money.
193. After being forced out of the Domiciliary, Mr. Summers returned to the streets. His priorities were staying warm and safe. He spent most of his time looking for food and riding buses to keep warm. When he got tired, he would sleep in his car.
194. Mr. Summers has been periodically homeless since then. One of the hardest things for him about being homeless is getting treatment and medication. He has to be proactive about going to meetings and refilling prescriptions, which is difficult for him because he has to walk to appointments and is forgetful.
195. Mr. Summers was offered referrals back to the Haven, New Directions, and the Domiciliary over the years. He tried the Haven again, but it was not effective. Mr. Summers applied for a housing voucher in 2009, but was told that he could not receive a voucher until he had several months of clean drug tests. It is hard for him to stay clean when he is not getting psychiatric treatment and living on the streets, where he must worry about what he will eat and his safety. He experiences highs and lows from his bipolar disorder, and he had often turned to drugs as a way to cope and self-medicate.
196. Recently, Mr. Summers has been trying everything he can to get
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housing. He has been clean since January 2011 so that he could become eligible to reapply for a housing voucher. He attempted to navigate that application process, but he found it a complicated and rigorous process. He had to get to the WLA Campus by 8:00am, and then wait in line until noon. Finally, someone told him that the vouchers had been used up and VA GLA was not even accepting names for a waiting list. He does not think he can undergo the process all over again.
197. In April 2011, Mr. Summers applied for a bed at the Domiciliary after a social worker at the WLA Campus determined that he could greatly benefit from a stable environment where he can work concurrently on his psychological, substance -use and employment issues. Because he has mental disabilities, however, Mr. Summers was rejected from the Domiciliary. He was not even interviewed because he was "too psychiatrically unstable at this time to be at the Dom[iciliary]."
198. Mr. Summers is desperate for stable, permanent housing so that he can keep up with his medical treatment and maintain his sobriety. In the meantime, he is living out of his car, because he has found a quiet, safe place to park it at night. He takes public transportation and walks to the WLA Campus for mental health, medical, and drug treatment appointments, which he attends almost daily at either the WLA Campus or the Sepulveda ambulatory clinic. He has done everything that he knows of to secure housing through VA GLA, yet he still is homeless and does not know how or when he might be able to secure housing. Making all of his appointments is like a full-time job that leaves him little time to focus on other things in his life, and he has been able to keep going since January 2011 in large part due to the hope of getting a housing voucher or some other permanent housing. Mr. Summers does not know how much longer he will be able to continue coping with the daily stress of having to travel to the WLA Campus and Sepulveda clinic and manage his day-today needs.
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Zachary Isaac 199. Plaintiff Zachary Isaac saw combat in the Navy, experiences multiple
daily flashbacks, and is currently homeless in Skid Row in Los Angeles. 200. Mr. Isaac was born and raised in Texas. He joined the Navy after
several of his close family members joined the military. He served on a guided missile destroyer and was stationed in various locations across the Pacific Ocean. Mr. Isaac saw combat on several occasions, including during encounters with Islamic terrorists and pirates. Mr. Isaac experienced other traumatic incidents, including the death of a sailor under his command. That sailor was swept into the blades of a helicopter after he misunderstood an order from Mr. Isaac. Several of Mr. Isaac's friends in the Navy committed suicide during their service. Mr. Isaac began experiencing violent flashbacks while still serving in the Navy.
201. By the time Mr. Isaac was discharged in 2010, he had received the following decorations: the Global War on Terror Service Medal, the Sea Service Deployment Ribbon, the Battle Efficiency Ribbon, the Overseas Deployment Medal, the Expert Marksman Medal, the National Defense Ribbon, and the National Defense Service Medal.
202. After his discharge, Mr. Isaac came to Los Angeles to find work. His mental health condition made it difficult for him to keep a job; he finds himself constantly distracted, and unable to focus. He became homeless in March 2011, and has stayed at various shelters, such as the Los Angeles Mission, since then.
203. Mr. Isaac continues to experience violent flashbacks five to six times a day. During these flashbacks he feels the ground swaying as if on a boat and vividly recalls the sounds of airplanes and helicopters, the smell of sea salt, and the violent incidents described above. He finds himself walking around at night thinking he is somewhere else, and wakes up in the middle of the night with violent nightmares. The shared sleeping arrangements and showers of the Los Angeles Mission and other shelters remind him of his experiences in the military and trigger flashbacks. The
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1 police helicopters that often hover over Skid Row also serve as triggers. The

2 frequency and severity of his flashbacks have increased during the time he has been

3 homeless.

4

204. Mr. Isaac requires stable, secure housing with access to necessary

5 mental health and other supportive services. He has had several bad experiences

6 with VA GLA employees, who gave him conflicting information about the medical

7 treatment to which he is entitled. He feels as if they have given him "the run-

8 around." As a result, Mr. Isaac is now pursuing housing through Los Angeles

9 County.

10

11 Willie Floyd

12

205. Plaintiff Willie Floyd served a tour in Vietnam where he participated in

13 extensive combat. As a result of his traumatic experiences while in the Army, Mr.

14 Floyd has a variety of mental health problems. He is currently homeless, living on

15 Skid Row. He is 64 years-old.

16

206. Mr. Floyd was born in Tuskegee, Alabama and raised in Auburn,

17 Alabama. He did not have any mental illness or other disability until his experiences

18 in Vietnam.

19

207. Mr. Floyd joined the Army reserves in 1965 after an instructor in a

20 vocational program suggested it would advance his career as an aspiring engineer,

21 and he transferred to active duty the following year. Eighteen months later, shortly

22 after Martin Luther King Jr. was assassinated, he was sent to Vietnam.

23

208. Mr. Floyd spent eleven months in Vietnam, starting in late 1968. He

24 served the entire time as a combat engineer on convoys. He and his fellow soldiers

25 took significant fire virtually everywhere they went.

26

209. His platoon's mission was to help clear out parts of the jungle to make it

27 safe for U.S. troops to set up camp. The process began with U.S. war planes

28 bombing the area with napalm. Then helicopters would fire on the area with 50-

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caliber machine guns. Finally, Mr. Floyd's platoon would enter the area on the ground, a process often involving tree-by-tree fire-fighting.
210. Mr. Floyd saw many people shot and killed directly in front of him. Most of the people he saw die were American troops. He also saw the pools of blood left behind after the Vietnamese dragged away their deceased.
211. Although Mr. Floyd received extensive training prior to going to Vietnam, he received no training or counseling of any kind to prepare him to return to civilian life. As Mr. Floyd described the experience, one day he was in the jungles of Vietnam and the next day he was on the streets of Los Angeles. Mr. Floyd sank into severe depression and was unable to maintain stable employment. He was ultimately diagnosed with anxiety, depression, and anti-social disorder.
212. Mr. Floyd also returned from Vietnam with a drug addiction. In Mr. Floyd's words, "[w]e said to ourselves, if we were going to die anyway, why not go out with a bang?" He has struggled with substance abuse ever since.
213. The mental health and substance abuse problems that he developed as a result of his experiences in Vietnam have prevented Mr. Floyd from maintaining stable housing. He has been homeless on and off for a total of at least 10 years, sleeping on the streets of Inglewood, Bell Gardens, and Skid Row. Mr. Floyd currently sleeps on the sidewalk under a building overhang on Broadway, between 8th and 9th streets, in downtown Los Angeles. Most of his possessions are contained in a shopping cart. He collects and recycles bottles and sometimes plays competitive chess in public parks for income.
214. Mr. Floyd continues to experience violent flashbacks of Vietnam on a daily or near-daily basis. Several weeks ago, an acquaintance of Mr. Floyd asked him why he doesn't simply forget about his experiences there. He responded with the question, "How can I forget it?"
215. A doctor at VA GLA has encouraged Mr. Floyd to participate in a PTSD group at the WLA campus. Although Mr. Floyd found the several sessions he
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attended helpful and he would have liked to continue with the program, he has not been able to participate because he finds it too difficult to make the trip across the city from Skid Row to the WLA Campus.
216. After participating in a drug rehabilitation program at New Directions several years ago, Mr. Floyd was able to obtain a housing voucher through VA GLA. He found an apartment close to the WLA Campus, an arrangement that made it easier to obtain treatment offered at the WLA Campus.
217. After only one year in the apartment, however, his voucher was revoked because he failed to submit necessary paperwork. The building in which he lived had two different addresses and VA GLA sent the forms to the address for which he did not receive mail. By the time the building manager gave him the forms, they were past due. When his voucher was withdrawn, Mr. Floyd returned to living on the streets in Skid Row, and he has been living on the streets since that time.
218. Mr. Floyd requires permanent supportive housing to access the psychiatric care and medication necessary for the treatment of his PTSD, depression, and anxiety.
Leroy Smith Jr. 219. Plaintiff Leroy Smith Jr. is a veteran of the U.S. Marine Corps. He has
been diagnosed with paranoid schizophrenia and is currently homeless on Skid Row. 220. Mr. Smith was born and raised in Los Angeles. He enlisted in the
Marines during the Vietnam War, in 1974. He served in San Diego, but injured his foot before he could be deployed to Vietnam. That injury has developed into severe arthritis, which causes extreme pain in Mr. Smith's feet.
221. Mr. Smith was diagnosed with paranoid schizophrenia at the Long Beach VA very soon after leaving the Marines and has taken psychotropic medication for about thirty years. He lived with his father and grandmother after his discharge, but when they passed away he began living on the streets. He tries to
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1 keep track of his medicine, but loses it sometimes. Mr. Smith began taking drugs to

2 cope with the pain in his feet and the difficulties of his life on Skid Row.

3

222. In February 2011, Mr. Smith began a program at the Domiciliary at the

4 WLA Campus. He was placed in a room with two other veterans. He stopped using

5 drugs and felt that he was doing well. As his six-month stay there was ending,

6 however, a parole officer entered his room with a gun. The presence of a gun in his

7 room upset him greatly, and Mr. Smith felt that he had no control over his

8 surroundings. He felt that he needed to speak to a psychologist about his feelings,

9 but was told he could participate only in the programs at the Domiciliary and

10 psychiatrist was available.

11

223. Mr. Smith completed the program at the Domiciliary despite his

12 problems there. He tried to obtain a housing voucher from VA GLA so that he

13 would have a stable place to live when he was discharged from the Domiciliary, but

14 he was not able to navigate the application process on his own and did not receive

15 sufficient support from VA GLA employees to complete the process. Accordingly,

16 he was discharged from the Domiciliary to the streets and has returned to Skid Row.

17

224. In mid-July 2011, Mr. Smith and a friend of his were walking across the

18 Sixth Street Viaduct, a bridge that spans the Los Angeles River. Mr. Smith blacked

19 out. When he regained awareness of his surroundings, he was on the other side of

20 the railing on the edge of the bridge. His friend told him that he had been

21 threatening to jump. Mr. Smith climbed back over the railing and sat down, terrified

22 that he had nearly killed himself.

23

225. Because of his mental health condition, Mr. Smith is unable to navigate

24 the processes established by VA GLA to obtain housing. He has difficulty accessing

25 mental health services from VA GLA because he lives on the streets in Skid Row.

26

27 Leslie Richardson

28

226. Plaintiff Leslie Richardson enlisted in the Army in 1973 and served as a

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Military Police officer in Germany from 1978-1980. 227. Mr. Richardson worked in narcotics during his time in Germany and,
due to the nature of his work, saw a lot of bodies of people who had overdosed or committed suicide. For example, one soldier locked himself into an armory and set himself on fire, and Mr. Richardson was involved in that investigation. During his time in Germany, he began to notice changes in his feelings and emotions as a result of the stress. He also began drinking heavily to cope with the high levels of stress associated with being an undercover narcotics agent.
228. When Mr. Richardson was discharged and returned home, his wife and -parents noticed he had become cold and isolated. He took a job as a police officer to support his family, but could not cope with the high stress levels. He quit his job after a high speed pursuit resulted in three civilian deaths.
229. In 1995, Mr. Richardson sought help for his mental disability at the Loma Linda VA where he was diagnosed with depression. He drank heavily in the years following and could not maintain a stable job. He was taken into custody on psychiatric holds multiple times, including after one incident in 2003 when he blacked out and was later told that he aimed a gun at his head but the bullet had missed his head when he pulled the trigger.
230. In 2007, Mr. Richardson was referred by VA GLA to the US Vets program in Inglewood. He relapsed and was sent to the Domiciliary for one month. After the one month, he left and lived with a cousin for three weeks.
231. In December 2007, he returned to VA GLA and was referred me to the Jan Clayton Center in Hollywood, where he stayed until November 2008, when the Center closed for renovations. VA GLA then referred Mr. Richardson to the Russ Hotel on San Julian in Skid Row and spent Christmas there. While at the Russ Hotel, he thought about The Christmas Carol, where he had been in Christmas past and where he was in Christmas present, and when he thoughts about Christmas future, he
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1 did not know where he would be. He was scared when he thought about his Christmas future. 232. In January 2009, Mr. Richardson received a housing voucher from VA GLA. He was worried about moving into a new apartment alone, but he eventually moved into an apartment in South Los Angeles. He met another veteran with a housing voucher in his apartment building. Before the holidays that year, that veteran committed suicide, and Mr. Richardson saw the coroner come for the body, which triggered an intense flashback to his time in the Army. 233. Mr. Richardson began having stress-related problems at the job he had obtained, called in sick on three days in a row, and was fired. He tried looking for more work but could not find any. The stress eventually became too much for him, and he went a binge. He ultimately was placed in the psychiatric unit on the WLA Campus for 19 days in March 2010. Because he had been placed on a psychiatric hold, VA GLA revoked his housing voucher. 234. After being released from the psychiatric ward, Mr. Richardson was placed in the Haven, where he stayed for a while. In November 2010, Mr. Richardson's sister died, and he had to go the coroner's office to identify her. That experience triggered a flashback, and he was eventually placed on another psychiatric hold. After he was released, VA GLA placed him at the Domiciliary, where he spent Christmas. 235. In March 2011, he was discharged from the Domiciliary and was placed at the US Vets program in Long Beach. He liked that program because he had a private room, which reduced the stress he experienced in his daily life. He relapsed in June 2011 and was told he could not return to the US Vets program. He was required to go to a sober living program for 90 days. 236. Since June 2011, he has been at a sober living house in Long Beach. He does not trust anyone who is living there, because most people placed in the program are there on court order, and he worries what they will do if they find out that he is a
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1 former police officer. He must share a room, and he does not get along well with his

2 roommate. As a result, he tries to spend as little time as possible at the house,

3 generally only returning there to sleep.

4

237. Mr. Richardson requires a cane to walk. He barely makes enough

5 money to cover his rent at the sober living program and food costs every month. He

6 worries that he could end up living on the streets at any point. As a result of his

7 disabilities, he cannot get another security job. He has also been informed by VA

8 GLA employees that he is not a good candidate for another housing voucher from

9 VA GLA because of his history of psychiatric holds. Mr. Richardson requires a

10 stable, permanent living arrangement where he is able to obtain the medical

11 treatment and psychiatric care he needs.

12

13 Wayne Early

14

238. Plaintiff Wayne Early was born in 1958 and grew up in Los Angeles,

15 where he had a healthy childhood. Mr. Early, who is an Army veteran, has

16 depression and PTSD.

17

239. Mr. Early joined the Army in 1976 when he was 18 years-old. While in

18 training at Fort Jackson in South Carolina, he watched from several feet away as a

19 fellow soldier lifted an M-16 rifle to his own face and fired, killing himself. Mr.

20 Early never learned whether the soldier intended to kill himself or did not know the

21 rifle was loaded. The trauma of this experience sent Mr. Early into a deep

22 depression. He began to have thoughts of suicide himself. He was unable to fulfill

23 his responsibilities and was ultimately discharged from the Army before his

24 assignment was complete.

25

240. After leaving the Army, Mr. Early continued to experience severe

26 depression. Although he was able to find employment, working as a security guard

27 and in warehouses and shipping, he was unable to maintain the jobs for more than

28 several months at a time. As a result, he could not maintain stable housing. Mr.

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Early slept in his car, in friends' backyards, and on the streets of Skid Row. He is presently staying with several couples in a temporary housing arrangement. He has been homeless for most of the past 10 years.
241. Mr. Early has been prescribed medication to treat his depression. However, because of his homelessness, he has been unable to take the medication on a regular basis. The antidepressants cause him to sleep deeply or lose attentiveness for stretches of 8 hours or more, something he feels he cannot afford when sleeping on the streets or in his car, when he must be alert for his own safety.
242. Mr. Early seeks a stable, permanent living arrangement where he is ableto obtain the medical treatment and psychiatric care he needs.
Lawrence Green 243. Plaintiff Lawrence Green was born and raised in Mississippi. He is 56
years old and is presently homeless, sleeping without shelter near the corner of 6th Street and Gladys Avenue in Skid Row. Although he has never received a formal mental health diagnosis, he believes he has a mental disability that impedes his ability to maintain employment and a stable place to live.
244. Mr. Green joined the Marines in 1973 and served until 1975. He spent 20 months in Vietnam. During this period, he served for several months on body bag detail, in which he was responsible for collecting the bodies of deceased American soldiers.
245. Mr. Green has been homeless for approximately four years. He participated in a sober living program at the WLA campus, but was unable, despite his efforts, to secure permanent housing through VA GLA after he completed that program.
246. Mr. Green requires a stable, permanent living arrangement where he is able to obtain the medical treatment and psychiatric care he needs.
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Demetrious Kassitas 247. Plaintiff Demetrious Kassitas was born in Chicago in 1962. He enlisted
in the Navy in 1990 and served in Desert Storm between 1990 and 1992. He is currently homeless.
248. Although Mr. Kassitas received training in a variety of areas in the Navy, his primary assignment in Desert Storm was serving as a nurse. He was responsible for treating American soldiers who were injured in combat, including gunshot wounds. He was also involved in combat directly, in a friendly fire incident in which his ship and another allied ship fired on one another.
249. Mr. Kassitas has been diagnosed with bipolar disorder. As a result of his mental disability, he has been unable to maintain stable employment or to secure stable housing for much of the time since he was discharged. He experienced a first period of homelessness shortly after leaving the military, from 1995-1997, and a second period from February 2009 to the present day. Mr. Kassitas presently sleeps without shelter near 4th Street and Flower Street near downtown Los Angeles.
250. Mr. Kassitas is unable address his bipolar disorder successfully while living on the street because of the constant stress of having to think about where his next meal will come from and how he can avoid violent confrontations with other homeless individuals.
Permanent Supportive Housing Is a Reasonable Accommodation to Ensure that Plaintiffs Have Meaningful Access to Services to which They Are Entitled 251. As the experiences of Plaintiffs reveal, Defendant Beiter has made
decisions that facially discriminate against. the most severely disabled veterans by excluding veterans with severe mental disabilities from some programs; and by structuring the existing VHA benefits program at VA GLA in a way that does not provide the services necessary to treat Plaintiffs' serious mental disabilities, while providing services that meet the needs of non-disabled veterans and less seriously
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disabled veterans. Defendant Shinseki has knowingly allowed this situation to continue and refused to exercise his authority to remedy the discrimination.
252. Additionally, as a result of Defendant Beiter's actions and Defendant Shinseki's refusal to act, veterans with severe disabilities are denied meaningful access to VHA benefits solely by virtue of their disabilities.
253. Scholars and researchers have reached the conclusion that permanent supportive housing is the only approach that consistently enables severely disabled individuals like Plaintiffs to access a broad array of social services, including medical care and mental health services.39Accordingly, offering permanent supportive housing is a necessary and reasonable accommodation to ensure that Plaintiffs and other veterans with serious mental disabilities and brain injuries can meaningfully access the VHA benefits that they are entitled to receive from VA GLA.
254. As noted above, numerous studies have demonstrated that permanent supportive housing is cost-effective, underscoring its reasonableness as an accommodation for seriously disabled veterans. In addition to those studies, which measure cost-savings across agencies, several studies have focused on the net economic impact only for the agency providing the permanent supportive housing. This research demonstrates that systems like VA GLA that provide medical care, substance abuse treatment, and emergency and transitional beds are likely to achieve substantial cost savings as a result of moving to a permanent supportive housing model for chronically homeless clients, for several reasons. First, once placed in permanent supportive housing, tenants' reliance on emergency shelters diminishes to almost zero.4°Second, there is a significant reduction in tenants' reliance on
39 See generally U.S. DEP'T OF HEALTH AND HUMAN SERV., MEDICAID AND PERMANENT
SUPPORTIVE HOUSING FOR CHRONICALLY HOMELESS INDIVIDUALS: LITERATURE SYNTHESIS AND
ENVIRONMENTAL SCAN (2011), available at http://aspe.hhs.govidaltcp/reports/2011/ChrHom1r.pdf
(summarizing dozens of published and unpublished studies demonstrating effectiveness of permanent supportive housing and its economic benefits).
40 See, e.g., MELANY MONDELLO, ET AL., COST OF HOMELESSNESS: COST ANALYSIS OF PERMANENT SUPPORTIVE HOUSING (2007), available at
(coned)
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emergency room and acute medical services.41By shifting tenants away from emergency inpatient treatment, permanent supportive housing puts its residents in a better position to engage in more regular and less expensive outpatient and preventative treatments. Finally, reliance on substance abuse treatment centers and detoxification facilities significantly decreases for supportive housing participants.42
255. Defendant Shinseki recently acknowledged that permanent supportive housing is a critical component of services that need to be available to seriously disabled veterans so that they can access needed mental health and therapeutic services. He said, "Providing assistance in mental health, substance abuse treatment;education and employment goes hand-in-hand with preventive steps and permanent supportive housing." He continued, "We continue to work towards our goal of finding every veteran safe housing and access to needed services." Furthermore, as noted above, DVA recently acknowledged that permanent supportive housing is an effective approach to ensuring homeless veterans with mental disabilities are able to access the services they need to treat their conditions.
Providing Permanent Supportive Housing through the WLA Campus Is Especially Reasonable
256. Providing permanent supportive housing to veterans with serious mental disabilities or brain injuries is all the more reasonable within VA GLA's service area for several reasons.
(coed fromn previous page)
http://www.mainehousing.org/Documents/HousingReports/CostOfl-lomelessness.pdf (finding 98
percent reduction in shelter visits among 99 tenants of Maine program).
41 See, e.g., Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVICES 992 (2006) (finding total number of emergency room visits for sample decreased by 56 percent and total hospital admissions decreased by 44 percent).
42See THOMAS L. MOORE, ESTIMATED COST SAVINGS FOLLOWING ENROLLMENT IN THE COMMUNITY ENGAGEMENT PROGRAM: FINDINGS FROM A PILOT STUDY OF HOMELESS DUALLY DIAGNOSED ADULTS (2006), available at http://documents.csh.org/documents/policy/PortlandCostStudy.pdf (finding 93 percent decrease in drug and alcohol treatment nights for residents of Oregon project).
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257. First, the WLA Campus has considerable available land and buildings that could be adapted to provide permanent supportive housing. Dozens of buildings on the WLA Campus are vacant or underutilized, and some of these buildings formerly provided permanent housing to veterans. In fact, Defendant Beiter and other VA GLA officials identified three buildings — Building 205, Building 206, and Building 209 — as buildings that could be made available for some homeless housing. Although VA GLA officials announced in June 2010 a $20 million appropriation from DVA to renovate Building 209, Defendant Beiter and other VA GLA officials have taken no concrete steps to begin that project. Nor have they released any plans -related to the building design or identified the therapeutic approach or scope of housing and supportive programming that would be offered if they do, in fact, renovate Building 209. Additionally, they have taken no steps to recruit and hire appropriate staff for such a facility. VA GLA officials have stated that the Building 209 renovation project would take at least four years, and VA GLA acknowledged in January 2011 and reaffirmed in June 2011 that VA GLA is "not commit[ed] to any specific project, construction schedule, or funding priority" for the WLA Campus and that "[e]ach development proposal must be approved individually by [Defendant Beiter], the [VISN Director], and national VA officials." VA GLA MASTER PLAN at 10.
258. Additionally, VA GLA recently announced Project 60, which is modeled on the County of Los Angeles' Project 50. As part of Project 60, VA GLA will "collaborate with Federal, County and local government and non-profit agencies to move 60 of the most vulnerable, chronically homeless Veterans off the streets and into permanent supportive housing," and Project 60 participants will get housing "no matter how ready they are to receive mental health and substance abuse services — or despite any treatment failures and setbacks."43Accordingly, Defendant Beiter does
43VA GREATER Los ANGELES HEALTHCARE SYSTEM, PROJECT 60 FACT SHEET, available at http://www.losangeles.va.govidocuments/1I -02-15 Fact-Sheet Project 60.pdf(last accessed May
30, 2011).
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not need to create a new program or substantially alter existing services to provide permanent supportive housing as an accommodation for Plaintiffs and similarly situated veterans.
259. Finally, the federal government acquired the land that now makes up the WLA Campus under the 1888 Deed, and it is clear that the donors intended that the government use the land to establish and permanently provide housing to disabled veterans. Citizens donated the land precisely so that the federal government could provide permanent housing and care for disabled veterans like Plaintiffs.
Current Commercial Uses of the WLA Campus Do Not Provide Housing and Care for Plaintiffs and Other Seriously Disabled Veterans
260. Beginning at least as early as 1989, VA GLA began leasing portions of the WLA Campus to private entities and has since entered into a range of land use agreements, including long- and short-term leases, memoranda of understanding, revocable licenses, and enhanced sharing agreements, with both for-profit and notfor-profit entities. Additionally, VA GLA transferred ownership of 13.5 acres to the State of California to construct the 396-bed geriatric care facility that the State now operates on the WLA Campus. As of January 2011, VA GLA acknowledged 21 current land use agreements. See VA GLA MASTER PLAN at 36-37.
261. VA GLA's hospital complex is located on the southern portion of WLA Campus. VA GLA has leased approximately 10 acres near the hospital to Enterprise Rent-A-Car and Tumbleweed Transportation, a charter bus operator, for vehicle storage. Since 2001, VA GLA also has allowed Westside Services, LLC to operate parking areas throughout the WLA Campus as remote parking sites for nearby businesses. The American Red Cross has a 50-year lease on a parcel of land near the hospital and has operated its district headquarters there since 1989.
262. Large sections of the central portion of the campus are also unavailable for veteran housing or services as a result of private land use agreements.
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For example, Sodexho Marriott operates a laundry facility in Building 224 and an adjacent water softening unit for processing linen from surrounding hotels. Richmark Entertainment contracted with VA GLA to operate the Wadsworth Theatre, which was built in 1939 as an entertainment center for veterans, and the Brentwood Theater. Veterans are charged full price for all events held at those theaters. UCLA utilizes the Jackie Robinson Baseball Stadium on the east side of the WLA Campus. An energy company has operated active oil wells on approximately 2.5 acres since 1988, and 1.5 acres are subject to an enhanced sharing agreement with TCM, LLC to operate a farmer's market. Additional land on this portion of the campus is used by Westside Services, LLC as remote parking for non-DVA programs.
263. In the northern area of the campus, the overwhelming majority of land is unavailable for use by veterans or by VA GLA to provide services or housing to veterans as a result of private land agreements. The City of Los Angeles built Barrington Park, a 12-acre property that includes a parking lot, a baseball diamond, athletic fields, and a dog park. Brentwood School utilizes 20 acres, on which it has constructed athletic fields, a track, tennis courts, and a swimming pool, under an enhanced use agreement. Two soccer clubs use MacArthur Field, where veterans once played softball, and an adjacent parking lot.
264. These uses are plainly inconsistent with the intent of the 1888 Deed that the federal government establish and permanently maintain a home for disabled veterans, because they are not directly related to providing housing or medical and other therapeutic care to disabled veterans.
265. Despite repeated efforts by Plaintiff Barrie and her family and several veteran, community, and philanthropic groups to obtain information about these land deals, there has not been a public accounting of how these deals were reached, what their details are, how much revenue is generated by them, and how such revenue, if any, is used. In fact, the total fiscal year budget reported in VA GLA's 2010 Annual Report has an asterisk next to it, indicating that the figure does not include
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"alternative revenue." On or about Thursday, August 11, 2011, Plaintiffs submitted a formal request for an accounting of profits of all money received by DVA or VA GLA as a result of any land-use agreements for the WLA Campus under which the land is used for any purpose that is not directly related to providing a home for disabled veteran. Defendants have not responded to this demand.
266. Additionally, when DVA transferred the land to the State of California for the operation of the nursing care facility, the deed included a provision specifying that title would revert to the federal government if the State ceased using the land as a nursing home or for domiciliary purposes. VA GLA characterized this provision - -as requiring the State of California to use the land "as a nursing home or for domiciliary uses, as agreed upon in the original deed." VA GLA MASTER PLAN at 10. Even though VA GLA blatantly uses portions of the WLA Campus for purposes plainly inconsistent with the original 1888 Deed, DVA imposed on the State of _ California the obligation to use the parcel transferred to it consistent with the original intent, at the risk of losing title to the land.
267. Defendants have breached and are continuing to breach their obligation under the 1888 Deed to utilize the WLA Campus only for the purpose of providing housing and supportive services to disabled veterans. As a result, the portions of the WLA Campus encumbered by these leases are and will continue to be unavailable for the provision of housing and supportive services to disabled veterans. Consequently, Plaintiffs are being and will continue to be denied a full and fair chance to access housing and care on the portions of the WLA Campus that Defendants have encumbered with leases that are inconsistent with the 1888 Deed.
Current Commercial Uses of the WLA Campus are Inconsistent with the Statutory Scheme Set out by Congress and Violate Statutory Requirements
268. Title 38 of the United. States Code sets out DVA's duties. Part I through Part V of Title 38 relate primarily to veterans benefits and organization of DVA. See
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38 U.S.C. §§ 101-7907. Part VI relates to the "acquisition and disposition of property" and does not concern the provision of veterans' benefits. Part VI authorized three primary mechanisms through which DVA enter into leases or other agreements related to its property: (1) enhanced use leases (EULs) under 38 U.S.C. §§ 8161-8169, (2) health-care resource sharing agreements (HCRSAs) under 38 U.S.C. §§ 8151-8153, and (3) outleases under 38 U.S.C. § 8122 and § 2412.
269. EULs are the congressionally-approved means of entering into commercial land deals on DVA property. There are only two circumstances in which the Secretary of DVA may enter into an EUL: (1) part of the property must be-used "for an activity contributing to the mission of the Department," the lease must "not be inconsistent with" and must "not adversely affect the mission of the Department," and the lease must "enhance the use of the property," 38 U.S.C. § 8162(a)(2)(A)(i)-(iii); or (2) the Secretary must determine that "a business plan _ proposed by the Under Secretary for Health for applying the consideration under such a lease to the provision of medical care and services would result in a demonstrable improvement of services to eligible veterans in the geographic servicedelivery area within which the property is located." 38 U.S.C. § 8162(a)(2)(B). In either circumstance, all funds that are generated by the EUL beyond those incurred by DVA in connection with the lease must be deposited in the DVA Medical Care Collections Fund. See 38 U.S.C. § 8165(a)(1).
270. EULs protect the interests of veterans through their substantial procedural requirements. Section 8163 mandates a public hearing that addresses the local community, DVA programs, and services to veterans and also requires "reasonable notice to the congressional veterans' affairs committees and to the public of the proposed lease and of the [public] hearing," including a detailed description of and justification for the proposed lease. If after the hearing the Secretary still intends to enter into an EUL, the Secretary must again notify congressional veterans' affairs committees and "publish a notice of such intention in the Federal Register," again
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with a detailed description and justification for the proposed lease. 271. Authority for agreements relating to the sharing of health-care resources
is set out in 38 U.S.C. §§ 8151-8153. Section 8151, the statement of Congressional purpose, explains that this authority is intended only for "agreements with healthcare providers in order to share health-care resources with, and receive health-care resources from, such providers while ensuring no diminution of services to veterans." Section 8153 sets out the authority to enter into HCRSAs, and requires that all such agreements concern "health-care resources." See also 38 C.F.R. § 17.240 (mirroring § 8153 and limiting use of HCRSAs to situations where the agreement "will secure the use of a specialized medical resource which otherwise might not be feasibly available" for veterans, or where it "will secure effective use of [DVA] specialized medical resources" underused by veterans).
272. VA GLA does not lease the land at the WLA Campus through EULs. Instead, VA GLA has entered into various "Enhanced Sharing Agreements" (ESAs). VA GLA claims that these ESAs are executed pursuant to and in accordance with 38 U.S.C. §§ 8151-8153. However, nearly all of VA GLA's ESAs have little or no connection to health-care resources, do not involve "specialized medical resources," and do not fall within the authority provided by those statutes. The content of the ESAs more closely resembles an EUL than an HCRSA, but VA GLA did not comply with any of the procedural requirements mandated by EUL authority.
273. The execution of each ESA represents final agency action. Additionally, DVA approved as final the VA GLA Master Plan on June 23, 2011. The notice announcing the final approval of the Master Plan addressed comments that DVA had received in response to the draft:Master Plan objecting to the ESAs and affirmed that the ESAs were valid and would not be reevaluated or rescinded. See 76 Fed. Reg. 36955 (June 23, 2011).
274. Plaintiffs have suffered the procedural injuries of losing access to detailed and publicly available descriptions and justifications of the land deals prior
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to a public hearing; losing the ability to make their views known at public hearings based on those detailed descriptions and justifications; and losing access to DVA's final descriptions and justifications in the Federal Register.
275. Further, when VA GLA entered into § 8153 agreements instead of EULs, Plaintiffs lost the assurance that every land deal unrelated to the sharing of health-care resources on the WLA Campus would result in appropriate space for veterans activities, or would demonstrable improvements in VA GLA's services. Because VA GLA's ESAs do not provide appropriate space for veterans activities and do not result in a demonstrable improvement in VA GLA's services, Plaintiffs therefore also suffered the substantive injuries of lost access to space and lost opportunities for improved services.
Defendants Shinseki and Reiter Have Personal Knowledge that VA GLA's Current Practices Are Discriminatory and that the WLA Campus Is Being
Misused and the Direct and Specific Authority to Remedy the Violations 276. Defendant Shinseki has personal knowledge about the chronic
homelessness crisis among veterans. For example, numerous news accounts reflect that in November 2009 Defendant Shinseki acknowledged the serious problem of homelessness among veterans, and in particular among veterans recently returned from Iraq and Afghanistan. Additionally, in 2010, the U.S. Interagency Council on Homelessness (USICH), of which Defendant Shinseki is a member, released a report on homelessness. The report included a discrete section on veteran homelessness, which included quotes from Defendant Shinseki. That section of the report described the number of homeless veterans and the number of chronically homeless veterans and acknowledged that veterans were overrepresented in the homeless population. Defendant Shinseki also issued a press release in February 2011 announcing that DVA and the U.S. Department of Housing and Urban Development had released a supplement to a 2009 report to Congress on homeless, and that report
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included substantial data on the number of homeless veterans and chronically homeless veterans in the United States.
277. Defendant Shinseki also has personal knowledge about the necessity of permanent supportive housing for this population to meaningfully access the VHA services to which they are entitled. For example, when DVA and the U.S. Department of Housing and Urban Development released the supplement to the 2009 report to Congress on homeless in February 2011, Defendant Shinseki stated, "Providing assistance in mental health, substance abuse treatment, education and employment goes hand-in-hand with preventive steps and permanent supportive housing." He continued, "We continue to work towards our goal of finding every veteran safe housing and access to needed services." Additionally, the 2010 USICH report noted that, "Mike other populations, the complexity of navigating systems makes it difficult for Veterans to get their needs met," and that "[v]eterans experiencing chronic homelessness benefit from . . increasing access to permanent supportive housing."
278. Defendant Shinseki and his predecessors as Secretary of DVA have also received dozens of letters over the years drawing attention to DVA's failure to provide appropriate services at the WLA Campus to homeless veterans with mental disabilities, as well as the misuse of the WLA Campus. For example, local veterans groups and activists have sent Defendant Shinseki dozens of letters demanding appropriate housing and services for disabled veterans on the WLA Campus. In fact, Defendant Shinseki received correspondence from local veteran and activist Robert Rosebrock in December 2010 that not only addressed the misuse of land at the WLA Campus, but also specifically mentioned one homeless veteran's circumstances and his need for stable housing in order to meaningfully access services at the WLA Campus. Additionally, in January 2011, the law firm Dilworth Paxson LLP sent Defendant Shinseki a letter and a detailed report prepared by the Metabolic Studio regarding the history of the WLA Campus and noting DVA's breach of its fiduciary
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obligation under the 1888 Deed. The General Counsel for DVA responded shortly thereafter with a letter contending DVA was fulfilling its obligations under the 1888 Deed. Plaintiff Barrie also has sent numerous letters to Defendant Shinseki's predecessors regarding VA GLA's misuse of the WLA Campus for purposes unrelated to providing housing or supportive services to disabled veterans and received at least one response from the Office of the Secretary of DVA.
279. Defendant Shinseki, as Secretary of DVA, also has authority to promulgate regulations that guide DVA's and VA GLA's development and implementation of programs, including VHA benefits. Although aware that homeless veterans with serious mental disabilities and brain injuries cannot meaningfully access medical, mental health, and other services available under the VHA benefits program, Defendant Shinseki has not promulgated regulations requiring that DVA or its health systems, including VA GLA, provide permanent supportive housing as a reasonable accommodation.
280. Thus, as a cabinet-level secretary with responsibility for ensuring DVA complies with federal anti-discrimination laws and its fiduciary obligations, Defendant Shinseki has specific knowledge of the violations detailed in this Complaint and direct responsibility and authority to provide the remedies sought in this Complaint, but he has failed to exercise that authority.
281. Defendant Beiter has personal knowledge that VA GLA serves numerous veterans with serious mental disabilities who are homeless. As Director of VA GLA, Defendant Beiter is responsible for ensuring that VA GLA complies with all DVA regulations and policies, including the requirements that it convene an annual meeting with community partners to assess the need for services to homeless veterans and that it provide survey results to DVA on the homeless population within its service areas annually. Defendant Beiter authorized VA GLA to release its 2009 homelessness survey results, which reflected that more than 8,000 homeless individuals resided within VA GLA's service area.
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282. Defendant Beiter has personal knowledge that homeless veterans within VA GLA's service area are denied meaningful access to the services currently offered by VA GLA. For example, officials from the City of Santa Monica have met with Defendant Beiter and other senior VA GLA officials on numerous occasions and argued that VA GLA is failing to provide homeless veterans who reside within the geographic limits of Santa Monica with meaningful access to VHA services.
283. Additionally, VA GLA prepared and published a report on January 11, 2011 that purported to summarize the history and current scope of services offered by VA GLA for homeless veterans. This report acknowledged "there is a subpopulation of Veterans who have serious chronic mental health and substance abuse problems: these Veterans require intensive treatment beyond the scope current homeless transitional housing programs." The report further acknowledged that VA GLA did not currently offer any programs that meet the needs of this group. As the Director of VA GLA, Defendant Beiter has final authority to approve the preparation and release of reports such as the January 11, 2011 homelessness report and is aware of the contents of that report.
284. VA GLA also recently launched Project 60. Through this initiative, VA GLA plans to target 60 vulnerable, chronically homeless veterans and connect them with permanent supportive housing, including the supportive resources and services necessary to stabilize and improve medical and mental health. The impetus behind the development and planned implementation of Project 60 was the recognition that chronically homeless veterans cannot meaningfully access services offered by VA GLA. As the Director of VA GLA, Defendant Beiter has final authority to authorize initiatives like Project 60 and is aware of the factors that prompted VA GLA to develop Project 60.
285. Defendant Beiter's official duties require that she oversee and manage day-to-day operations of VA GLA, including approving program design, authorizing VA GLA to offer particular services, establishing admission and other criteria for the
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1 various programs offered through VA GLA, and ensuring that DVA complies with

2 federal anti-discrimination laws and its fiduciary obligations. She has, in fact,

3 approved and authorized the programs and services currently offered by VA GLA

4 and is the sole official within VA GLA with authority to approve new programs, to

5 set funding priorities, and to authorize modifications to existing programs that

6 require renovation or modification of existing structures. See VA GLA MASTER

7 PLAN at 10. Thus, Defendant Beiter has direct control over and responsibility for the

8 design and implementation of the current VHA benefits program offered through VA

9 GLA and has elected not to offer permanent supportive housing to Plaintiffs and

10 similarly situated veterans as a reasonable accommodation for their disabilities.

11

286. As the Director of VA GLA, Defendant Beiter is also personally aware

12 of the many contracts and land deals under which private entities utilize the WLA

13 Campus, where her office is located, for purposes inconsistent with the 1888 Deed.

14 The Veterans Programs Enhancement Act of 1998 required that VA GLA develop a

15 master land use plan for the WLA Campus. In January 2011, VA GLA released a

16 draft master plan, as required by the 1998 legislation. As the Director of VA GLA,

17 Defendant Beiter was involved in and had direct responsibility to review and

18 authorize the release of the draft master plan.

19

287. The draft master plan included a summary of the history of the WLA

20 Campus, including the 1888 Deed, and acknowledged that the 1888 Deed required

21 that the land be used for housing disabled veterans. See VA GLA MASTER PLAN at

22 10 (noting use of the land "as a nursing home or for domiciliary uses [was] agreed

23 upon in the original deed"). The draft master plan also documented the many private

24 land deals that limit VA GLA's ability to use the WLA Campus to provide housing

25 and supportive services to disabled veterans. See VA GLA MASTER PLAN at 36-37

26 (summarizing "Current Land Use Agreements").

27

288. Defendant Beiter has also received correspondence from local activists

28 detailing the many current uses of the WLA Campus that are inconsistent with the

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1888 Deed. She also has been confronted by City of Santa Monica officials regarding the private land deals and her failure to ensure that the WLA Campus is used to provide housing to disabled veterans consistent with the 1888 Deed.
289. As the Director of VA GLA, Defendant Beiter has final decisionmaking authority related to uses of the WLA Campus. See VA GLA MASTER PLAN at 10 ("Each development proposal [for the WLA Campus] must be approved individually by the GLAHS Director [Defendant Beiter], the [VISN director], and national VA officials as required by VA regulation governing the specific project."). She and her predecessors as Director of VA GLA approved each land deal for the WLA Campus described in this Complaint.
290. Accordingly, Defendant Beiter has specific knowledge of the violations detailed in this Complaint, she or her predecessors as Director of VA GLA were directly responsible for and authorized the conduct that gave rise to the violations detailed in this Complaint, and she has the direct responsibility and authority to provide the relief sought in this Complaint.
291. The violations of Plaintiffs' rights by Defendants outlined above are ongoing and will continue unless this Court grants the relief Plaintiffs seek in this Complaint.
CLASS ALLEGATIONS 292. Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson, Early, Green, and Kassitas bring the first and second causes of action detailed below on behalf of themselves and all other persons similarly situated pursuant to Federal Rule of Civil Procedure 23. For those causes of action, those Plaintiffs seek injunctive and declaratory relief applicable to members of the Plaintiff Class, as defined below. 293. The plaintiff class consists of: Veterans who are eligible for the benefits provided by the Veterans Health
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Administration and reside within the service area of the VA Greater Los Angeles Healthcare System, and who have a mental disability and/or brain injury that renders them unable to obtain or maintain stable housing.
294. Class action status for this litigation is proper because: (a) The plaintiff class is so numerous that joinder of all members is
impractical; (b) There are questions of law and fact common to the class; (c) Plaintiffs' claims are typical of the claims of the class, in that
Plaintiffs are and were denied meaningful access to VI-TA benefits offered by VA GLA solely by reason of their serious mental or physical disability;
(d) Plaintiffs will fairly and adequately protect the interests of the class as there is no conflict between Plaintiffs and the other class members; and
(e) Plaintiffs can adequately represent the interests of the class members and have retained counsel experienced in class action litigation.
295. Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby making final declaratory and injunctive relief appropriate with respect to the class as a whole, under Federal Rule of Civil Procedure 23(b)(2).
FIRST CAUSE OF ACTION Violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(Facial Discrimination) (Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson,
Early, Green, Kassitas, and Vietnam Veterans of America Against All Defendants)
296. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
297. Plaintiffs are disabled within the meaning of the Rehabilitation Act and
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otherwise eligible for the VHA benefits offered by DVA, a federal agency, but defendants have defined and provide the VHA benefits offered by VA GLA in a manner that facially discriminates against Plaintiffs because of their severe disabilities, in violation of Section 504 of the Rehabilitation Act of 1973.
SECOND CAUSE OF ACTION Violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(Meaningful Access) (Plaintiffs Valentini, Moraru, Doe, Summers, Isaac, Floyd, Smith, Richardson,-
Early, Green, Kassitas, and Vietnam Veterans of America Against All Defendants)
298. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
299. Plaintiffs are disabled within the meaning of the Rehabilitation Act and otherwise eligible for the VHA benefits offered by DVA, a federal agency, but defendants have defined and provide the VHA benefits offered by VA GLA in a way that effectively denies Plaintiffs meaningful access to those benefits, in violation of Section 504 of the Rehabilitation Act of 1973.
THIRD CAUSE OF ACTION Breach of Fiduciary Duty as Trustee of Charitable Trust (Injunctive Relief)
(All Plaintiffs Against All Defendants) 300. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 301. The 1888 Deed created a charitable trust, and, as the successor-ininterest to the National Soldiers' Home, DVA holds that land, on which the WLA Campus now sits, in trust for the intended beneficiaries of the charitable trust, disabled veterans, and must use the land only for purposes that directly contribute to
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the establishment and permanent operation of a home for disabled veterans. 302. By authorizing the many uses of the WLA Campus that do not directly
contribute to the operation of a home for disabled veterans, and by failing to take substantial affirmative steps to administer the trust solely with a view to the accomplishment of this purpose, Defendants have breached their fiduciary duties as trustees of the charitable trust.
FOURTH CAUSE OF ACTION Accounting for Profits
(All Plaintiffs Against All Defendants) 303. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 304. The 1888 Deed created a charitable trust, and, as the successor-ininterest to the National Soldiers' Home, DVA holds that land, on which the WLA Campus now sits, in trust for the intended beneficiaries of the charitable trust, disabled veterans, and must use the land only for purposes that directly contribute to the establishment and permanent operation of a home for disabled veterans. 305. Plaintiffs have requested complete and accurate information regarding the administration of the charitable trust, including full details regarding the many leases on the WLA Campus into which VA GLA has entered with private entities and how the proceeds from those leases, if any, have been used. Defendants have not responded to that request. 306. By authorizing the many uses of the WLA Campus that do not directly contribute to the operation of a home for disabled veterans, Defendants have breached their fiduciary duties as trustees of the charitable trust. The financial arrangements and payment structure from these uses are complicated and the information about them is within the control of the defendant. An accounting is necessary to ascertain whether proceeds from the leases on the WLA, if any, are due
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1 to Plaintiffs and other beneficiaries of the charitable trust.

2

3

FIFTH CAUSE OF ACTION

4 Breach of Fiduciary Duty as Trustee of Charitable Trust (Mandamus Relief)

5

(All Plaintiffs Against All Defendants)

6

307. Plaintiffs incorporate by reference the foregoing paragraphs of this

7 Complaint as though fully set forth herein.

8

308. The 1888 Deed created a charitable trust, and, as the successor-in-

9 interest to the National Soldiers' Home, DVA holds that land, on which the WLA

10 Campus now sits, in trust for the intended beneficiaries of the charitable trust,

11 disabled veterans, and must use the land only for purposes that directly contribute to

12 the establishment and permanent operation of a home for disabled veterans.

13

309. As trustees of the charitable trust, Defendants have a non-discretionary

14 fiduciary duty, which they have breached by authorizing the many uses of the WLA

15 Campus that do not directly contribute to the operation of a home for disabled

16 veterans, as well as by failing to take substantial affirmative steps to administer the

17 trust solely with a view to the accomplishment of this purpose.

18

310. Plaintiffs have no adequate remedy at law to compel defendants to cease

19 breaching their fiduciary duty as trustees of the charitable trust.

20

21

SIXTH CAUSE OF ACTION

22

Violation of 38 U.S.C. §§ 8151-8153 and the APA

23

(All Plaintiffs Against All Defendants)

24

311. Plaintiffs incorporate by reference the foregoing paragraphs of this

25 Complaint as though fully set forth herein.

26

312. VA GLA's land deals have been improperly executed pursuant to 38

27 U.S.C. §§ 8151-8153, which authorize only agreements to share health care

28 resources, and not executed pursuant to 38 U.S.C. §§ 8161-8169, which authorize

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1 "Enhanced Use Leases."

2

313. Plaintiffs have suffered legal wrong because they have been denied the

3 procedural protections, the opportunity to make their views known at public hearings,

4 and the publically available descriptions and justifications for the land deals that 38

5 U.S.C. § 8163 requires. Plaintiffs have also lost the assurance that every land deal

6 unrelated to the sharing of health-care resources on the WLA Campus will result in

7 appropriate space for veterans activities, or demonstrable improvements in VA

8 GLA's services, and therefore also suffered the substantive injuries of lost access to

9 space and lost opportunities for improved services.

10

314. VA GLA's failure to comply with 38 U.S.C. §§ 8151-8153 and 38

11 U.S.C. §§ 8161-8169 constitutes arbitrary and capricious agency action; is an abuse

12 of discretion; is in excess of statutory jurisdiction, authority, or limitations, or

13 otherwise without statutory right; and is contrary to law and to procedures required

14 by law. 5 U.S.C. § 706(2)(A), (C)-(D).

15

315. This Court has authority to review Plaintiffs' Administrative Procedure

16 Act claim under to 5 U.S.C. §§ 701-706 and may grant declaratory relief, injunctive

17 relief, and any additional relief pursuant to 5 U.S.C. §§ 705, 706.

18

19

REQUEST FOR RELIEF

20

Plaintiffs therefore respectfully request that this Court grant the following

21 relief:

22

A. Certify a class for the first and second causes of action in this Complaint

23 pursuant to Federal Rule of Civil Procedure 23, in accordance with the allegations in

24 this Complaint and the forthcoming class certification motion.

25

B. Enter an injunction directing that Defendants provide Plaintiffs and the

26 Plaintiff Class permanent supportive housing as a reasonable accommodation for

27 their disabilities so Plaintiffs and the Plaintiff Class can reasonably access the VHA

28 benefits for which they are eligible.

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C. Enter an injunction mandating that Defendants faithfully execute their obligations as trustees of the WLA Campus and utilize the WLA Campus solely for purposes directly related to providing a home for disabled veterans or, in the alternative, enter an order mandating that defendants refrain from allowing the current uses of the WLA Campus for purposes that are not directly related to providing a home for disabled veterans to continue.
D. Enter an injunction requiring an accounting of profits of all money received by DVA or VA GLA as a result of land use agreements for the WLA Campus under which the land is used for any purpose that is not directly related to providing a home for disabled veterans and requiring that Defendants deposit all such money in account to be used solely for the purpose of providing housing and housing-connected supportive services to disabled veterans at the WLA Campus.
E. Enter an injunction prohibiting VA GLA from executing any agreements under 38 U.S.C. §§ 8151-8153 that do not concern the sharing of healthcare resources.
F. Declare that the design and implementation of the VHA benefits program within VA GLA by defendants facially discriminates against Plaintiffs and the Plaintiff Class solely by reason of their disabilities.
G. Declare that defendants are denying Plaintiffs and the Plaintiff Class meaningful access to the VHA benefits offered by VA GLA solely by virtue of their disabilities.
H. Declare that the federal government's acceptance of the land transferred under the 1888 Deed created a charitable trust.
1. Declare that defendants have breached and continue to breach their fiduciary duties as trustees of the charitable trust by allowing VA GLA to use the WLA Campus for purposes that are not directly related to providing a home for disabled veterans.
J. Declare that defendants violated 38 U.S.C. §§ 8151-8153, 38 U.S.C. §§
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8161-8169 by entering into a number of "Enhanced Sharing Agreements" unauthorized by any law or regulation.
K. Grant such other relief as this Court deems just and proper, including but not limited to awarding attorney's fees under 29 U.S.C. § 794a and any other applicable statutes and awarding costs under 28 U.S.C. § 1920 and any other applicable statute.

Respectfully Submitted,

Dated: August 12, 2011 Dated: August 12, 2011 Dated: August 12, 2011 Dated: August 12, 2011 Dated: August 12, 2011

Mark D. Rosenbaum ACLU Foundation of Southern California
By: David B. Sapp ACLU Foundation of Southern California

By:

ifiiir(Cr)

Laurence H. Tribe

By: &kJ/ X c9honG--)
Ronald L. Olson
Munger, Tolles & Olson, LLP

cc-)

By:

Isle. ilevoiCt

Amos Hartston

Inner City Law Center

Dated: August 12, 2011

By: John C. Ulin James J. Finsten Arnold & Porter, LLP
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Case 2:11-cv-04846-SJO-MRW Document 24 Filed 08/12/11 Page 95 of 113 Page ID #:322

Dated: August 12, 2011 Dated: August 12, 2011

By:

P)‘;(

G. (L. Blasi

By:

eE.)

Jonathan Massey

Massey & Gail LLP

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Exh. 1, Pg. 95

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Exh. 1, Pg. 96

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Exh. 1, Pg. 97

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Exh. 1, Pg. 98

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Exh. 2, Pg. 100

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1

PROOF OF SERVICE

2 1. 3

I am over eighteen years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 777 South Figueroa Street, 44thFloor, Los Angeles, California 90017.

4 2. On August 12, 2011, I served the following document(s):

5 RI AMENDED COMPLAINT FOR INJUNCTIVE, DECLARATORY, MANDAMUS, AND ACCOUNTING RELIEF
6 u The document(s) served are included in the attached List of Documents.
7 3. 10 I served the document(s) on the following person(s):
8

9

• The names, addresses, and other applicable information about the persons served is- --

10

included in the attached Service List.

11 4. The documents were served by the following means:

12 0 By U.S. mail. I enclosed the document(s) in a sealed envelope or package addressed to the

person(s) at the address(es) in Item 3 and (check one):

13

u deposited the sealed envelope with the United States Postal Service, with the postage

14

fully prepaid.

15

0 placed the envelope for collection and mailing, following our ordinary business

practices. I am readily familiar with this business' practice for collecting and processing

16

correspondence for mailing. On the same day the correspondence is placed for collection

and mailing, it is deposited in the ordinary course of business with the United States Postal

17

Service, in a sealed envelope with postage fully prepaid.

18 19
u 20 21 22 23 24 25

I am employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California.
By Overnight Delivery/Express Mail.I enclosed the documents and an unsigned copy of this declaration in a sealed envelope or package designated by [name of delivery company or U.S. Postal Service for Express Mail] addressed to the persons at the address(es) listed in Item 3, with [Express Mail postage or, if not Express Mail, delivery fees] prepaid or provided for. I placed the sealed envelope or package for collection and delivery, following our ordinary business practices. I am readily familiar with this business' practice for collecting and processing correspondence for express delivery. On the same day the correspondence is collected for delivery, it is placed for collection in the ordinary course of business in a box regularly maintained by [name of delivery company or U.S. Postal Service for Express Mail] or delivered to a courier or driver authorized by [name of delivery company] to receive documents.

26

u

27

28 u

By Messenger Service. I served the documents by placing them in an envelope or package addressed to the persons at the address(es) listed in Item 3 and providing them to a professional messenger service for service. (See Declaration of Messenger below.)
By Facsimile Transmission.Based on an agreement between the parties to accept service by facsimile transmission, which was confirmed in writing, I faxed the document(s) and an

106

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 </s> Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E14S1DIFSiTleRdIC08T/2C9O/1U3RTPage 1 of P2r1ioritPyage ID #:3951

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: August 29, 2013

TITLE:

Gregory Valentini, et al. v. Eric Shinseki, et al.

======================================================================== PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz Courtroom Clerk

Not Present Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

======================================================================== PROCEEDINGS (in chambers):ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Docket No. 116]; GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT [Docket No. 124]

This matter is before the Court on Defendants Eric Shinseki and Donna M. Beiter's (collectively,

"Defendants" or the "Government") Motion for Summary Judgment ("Defendants' Motion"), filed

April 10, 2013, and Plaintiffs Gregory Valentini, Adrian Moraru, Jane Doe, Leroy Smith, Jr., Leslie

Richardson, Wayne Early, Willie Floyd, Demetri ous Kassitas, Zachary Isaac, L awrence Green,

and the Vietnam Veterans of America's (collectively, "Plaintiffs") Motion for Summary Judgment

("Plaintiffs' Motion"), filed May 10, 2013.

Plaintiffs and Defendants filed their r espective

Oppositions on May 10, 2013, andJune 12, 2013, and their respective Replies on June 12, 2013,

and June 21, 2013. The Court heard oral argument on the matter on August 16, 2013. For the

following reasons, the Court DENIES Defendants' Motion and GRANTS IN PART Plaintiffs'

Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The individual Plaintiffs in this case are severely disabled veterans with mental disabilities, brain injuries, or both.1 (See First Am. Compl. for Injunctive, Declaratory, Mandamus, and Accounting Relif ("FAC") ¶¶ 8-17, ECF No. 24.) As a result of their disabilities, they are homeless and cannot access necessary medical and mental health treatment. (FAC ¶¶ 8-17; see also Decl. of Floyd Summers ("Summers Decl."), ECFNo. 64; Decl. of Gregory Valentini ("Valentini Decl."), ECF No. 65; Decl. of Leslie Richardson ("Richardson Decl."), ECF No. 66.)

On June 8, 2011, Plaintiffs filed a lawsuit agai nst the Government. Defendant Eric Shinseki ("Shinseki") is the Secretary ofthe United States Department ofVeterans Affairs ("DVA"), whose

1 The individual Plaintiffs are joined by the Vietnam Veterans of America, which asserts associational standing on behalf of its members. (FAC ¶ 45.)

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official duties include execution and administraotin of all laws and programs governed by the DVA. (FAC ¶¶ 47, 48.) Shinseki is responsible for ensuring that the DVA complies with contracts and land grants. ( FAC ¶ 48. ) Def endant Donna M. Beiter is the Direc tor of the Veterans Affairs Greater Los Angeles ("VA GLA") Healthcare Syst em, whose official duties include supervising daily operations and services of all programs operated by the West Los Angeles Campus ("WLA Campus"). (FAC ¶¶ 49, 50.)
Plaintiffs challenge a number of agreements that the DVA has entered into with third parties for the use of portions of the WLA Campus (the "Disputed Agreements") pursuant to its Health Care Resources Sharing Authority, 38U.S.C. §§ 8151-8153. SpecificallyP, laintiffs challenge the DVA's authority to ent er into the following agreement s: (1) an agreement wit h the Brentwood School under which the school has the right to use a 20-acre parcel of the WLA Campus as an athletic complex; (2) an agreement with Sodexho Marriott Laundry Services for use of a building " for processing hospitality linen"; (3) anagreement with the University of California Regents for the use of Jackie Robinson Stadium by the UCLA basebatlel am; (4) an agreement wiht Twentieth Century Fox Television for the use of a parcel of l and on the WLA Campus for "parking, storage and maintenance of production sets";(5) an agreement with the non-profitorganization Veterans Park Conservancy for the use of sixteen acres of land as a park; (6) an agreement with the Westside Breakers Soccer Club for the use of MacArthur Fei ld and an adjacent lot on the WLA Campus for soccer practices and matches; (7) an agreement withWestside Services, LLC for the "control and operation" of all vehicular parking areas on the WLA Campus; (8) an agreement with TCM, LLC for use of land on the WLA Campus for a fa rmer’s market; (9) an agreement with Richmark Entertainment for "booking services and theatremanagement services" for theatrical productions in the theaters on the WLA Cam pus; (10) eleven separate filming agreements with various film production companies which allowed these companies to film on the WLA Campus; and (11) an agreement with the City of Los Angeles for the use of twelve acres as a public recreational area known as Barrington Park. (Pls.' Mot. 16-21.)
A. Statutory Framework
There are a number of Congressoinally-authorized types of agreementby which the DVA may use or dispose of land and resources under its control. At issue in this case are Enhanced Sharing Agreements ("ESAs") under 38 U.S.C. §§ 8151-8153, and Enhanced Use Leases ("EULs") pursuant to 38 U.S.C. §§ 8161-8169.
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1. The DVA's Health Care Resources Sharing Authority
In 1996 Congress enacted legislation expanding theDVA's authority to enter into ESAs under 38 U.S.C. §§ 8151-8153.2 Section 8151, entitled "Statement of congressional purpose," provides:
It is t he pur pose of this subc hapter to strengthen the medical programs at Department fac ilities and improve the quality of health care provided veterans under this ttile by authorizing the Secretary to enter into agreements with health-car e providers in or der t o share health-care resources with, and receive health-care resources from, such providers while ensuring no diminution of services to veterans.
38 U.S.C. § 8151. Sectoi n 8152 sets forth definitions of cerat in terms used in 38 U.S.C. §§ 81518153, providing as follows:
(1) The term " health-care resource" includes hospital care and medical services (as those terms are defined in section 1701 of this title), services under sections 1782 and 1783 of this title, any other health-care service, and any health-care suppor t or administrative resource.
(2) The term "health-care providers" includes health-care plans and insurers and any organizations, inst itutions, or other entities or individuals who furnish health-care resources.
(3) The t erm "hospital", unless otherwise specified, includes any Federal, State, local, or other public or private hospital.
38 U.S.C. § 8152. Section 1701, in turn, defines "hospital care" as including services such as "medical services rendered in thecourse of the hospitalization ofany veteran," and "mental health services . . . for the immediate family" of a veteran "for the effective treatment and rehabilitation of a veteran." 38 U.S.C. § 1701( 5). "Medical services" is defined as including surgical, dental, optometric, podiatric, preventivehealth, and related services. 38U.S.C. § 1701(6). Section 1782 provides for the counseling of family members and caregivers of veterans, and § 1783 provides for bereavement counseling. 38 U.S.C. §§ 1782, 1783.

2 Previously, the DVA was only authorized to enter into ESAs wit h "medical schools, health-care facilities, and research centers." 38 U.S.C. § 8151 (1993), amended by The Veterans Health Care Eligibility Reform Ac t of 1996, Pub L. N. 104-262, 110 Stat. 3177 (1996).
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Section 8153, entitled "Sharing of health-care resources," provides in relevant part as follows:
To secure health-care reso urces which otherwise might not be feasibly available, or to effect ively utilize certain other health-care resources, the Secretary may, whenthe Secretary determines it to be in the best interest of the pr evailing standards of the Department medical care program, make arrangements, by contract or other form of agreement for the mutual use, or exchange of use, of health-care resources between Department healt h-care facilities and any health-care provider, or other entity or individual.
38 U.S.C. § 8153(a)(1) (emphasis added).
2. The DVA's Enhanced Use Lease Authority
At the time it entered into the Disputed Agreements,3 the DVA was authorized to lease land under an EUL if the Secretary of the DVA determined that:
(i) at least p art of the use of the property under the lease will be to provide appropriate space for an actvi ity contributing to the mission of the Department;
(ii) the lease will not be inconsistent with and will not adversely affect the mission of the Department; and
(iii) the lease will enhance the use of the property.

3 In 2008, the DVA was stripped of its authority to enter into EULs on the WLA Campus unless specifically authorized by statute. See 38 U.S.C. § 8162(c)(1). ("[T]he entering into an [EUL] covering any land or improvement described in . . . section 224(a) of the Military Construction and Veterans Affairs and Relaet d Agencies Appropriations Act, 2008 shall be considered to be pr ohibited by such sections unless specifically authorized by law."). Under section 224(a), "[t]he Secretary of Vetearns Affairs may not declare as excess to the needs to the Department of Veterans Affairs, or otherwise take any action to exchange, trade, auction, transfer, or oht erwise dispose of, or reducehte acreage of, Federal land and improvements at the Department of Veterans Affairs [WLA Ca mpus]." Ac t of Dec. 26, 2007, Pub. L. No. 110-161, 121 Stat. 1844. F urther, in 2012, Congress enacted the Honoring America's Veterans and Caring for Camp LeJeune Families Act of 2012 ("2012 Act"), Pub. L. No. 112-154, 126 Stat. 1165 (2012), which limited the use of EULs "only for the provision of supportive housing." 38 U.S.C. § 8162(2) (2012).
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38 U.S.C. § 8162(2)(A) (2007),repealed by 2012 Act, Pub. L. No. 112-154, 126 Stat. 1165 (2012). The Secretary could also authorize an EUL if "applying the consideration under such a lease to the provision of medical care andservices would result in a demontsrable improvement of services to eligible veterans in the geographic service-delivery area within which the property is located." 38 U.S.C. § 8162(2)(B), repealed by 2012 Act, Pub. L. No. 112-154, 126 Stat. 1165 (2012).
EULs entered into under these provisions are subject to proceduralsafeguards, including a public hearing and notice-and-comment requirements. 38 U.S.C.§ 8163. The DVA mustalso notify the "congressional veterans' affairs committees" before entering into EULs. 38 U.S.C. § 8163(c)(1).
B. Procedural Background
Plaintiffs asserted six causes of action against Defendants in their FAC: one claim for violation of the Administrative Procedure Act ("APA"), two clai ms for violations of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and three claims for violationsof the Government's duties as trustee of a charitable trust. ( See generally FAC.) Defendants filed a Motion to Dismiss, which the Court granted in part and denied in part, permitting Pl aintiffs' APA claim and one of Plaintiffs' Rehabilitation Act claims to proceed. S(ee generallyOrder Granting in Part and Den. in Part Defs.' Mot. to Dismiss ("MTD Order"), ECF No. 70.) On May 25, 2012, Defendants filed a Motion for Reconsideration based on the Ninth Circuit's en banc decision in Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012). The Court granetd in part and denied in part this Motion for Reconsideration. ( See generally Order Granti ng i n P art and Den. in P art D efs.' Mot. for Reconsideration, ECF No. 87.) As a result, only Plaintiffs' APA claim remains.
II. DISCUSSION
At issue is whether the Government exceeded its statutory authority under 38 U.S.C. §§ 81518153 by entering into the Dispu ted Agreements. The APA governs judicial review of agency action. See Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003) (en banc), amended on reh'g en bancon other grounds, 360 F.3d 1374 (9th Cir. 2004). Under the APA, agency action may only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "in ex cess of statut ory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (C).4

4 Defendants invoke the standard of review applicable when a plaint iff seeks to have agency action set aside as arbitrary and capircious, arguing that the Disputed Agreements must be upheld unless the DVA did not "rely on factors which Congress has not intended it to consider, entirely fail to consider an important aspect of the problem, or offer an explanation for its decision that either runs counter to the evidence before [it] o r is s o implausible that it could not be ascribed to a difference in view or the product of agency expertise." (Defs.' Mot. 12 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins.
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In Chevron U.S.A., Inc. v. Natural Resources Defense Counc,il467 U.S. 837 (1984), the Supreme Court set forth a two-step test for judicial revi ew of agency actions. First, "[i]f the int ent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Wilderness Soc'y, 353 F.3d at 1059 (quoting Chevron, 467 U.S. at 842-43.) Second, "if a statute is silent or ambiguous with respect to the issue at hand, then the reviewing court must defer to the agency so long as 'the agency's answer is based on a permissible construction of the statute.'" Id. (quoting Chevron, 467 U.S. at 843 n.9).
Under the APA, judicial review of agency decision-making is based on the administrative record compiled by the agency and submitted to the court. Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir. 1986); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971). The administrative record consists of all materiasl considered "either directly or indirectly" by an agency when making the decision in question. Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555-56 (9th Cir. 1989);see also Portland Audubon Socy' v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (finding that the administrative record "includes everything that was before the agency pertaining to the merits of its decision").
Plaintiffs contend that (1) Congress's unambiguousintent was that ESAsmay only be entered into to share "health-care resources," and because the Disputed Agreements do not provide for the sharing of health-care resources, they are in ecxess of the DVA's statutoyr authority and thus void; and (2) even if 38 U.S.C.§§ 8151-8153 were ambiguous, the DVA'sinterpretation of its authority to enter into ESAs is unreasonable and due no deference. (See generally Pls.' Mot.) For its part, the Government argues that (1) Plaintiffs have failed t o es tablish that they have standing to challenge the Disputed Agreements; (2) the D VA's decisions to enter into the Disputed Agreements are committed to agencydiscretion and thus not subjectto judicial review; and (3) 38 U.S.C. §§ 8151-8153 are ambiguous as to the meaning of "health-care resources" and thus the DVA's reasonable interpretation thereof is permissible. S(ee generallyDefs.' Mot.) The Court first considers the threshold issues of whether Pl aintiffs have standing to bring their APA claim and whether the Disputed Agreem ents are subject to judicial revi ew before turni ng to w hether the Disputed Agreements exceed the DVA's statutory authority.
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Co, 463 U.S. 29, 43 (1983).) This standard is not applicable where, as here, Plaintiffs contend that the agency's actions are inexcess of its statutory authority. See State Farm, 463 U.S. at 42-43 (holding that a court may not set aside agency action as arbitrary and capricious when the "agency rule . . . is ra tional, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute" (emphasis added)).
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A. Plaintiffs' Standing to Challenge the Disputed Agreements
The Court previously held that Plaintiffs have established that they have standing to bring their claim under the APA. (MTD Order 9-14.) The Government nevertheless again raises the issue in the instant Motions. Article IIIof the Constitution limits the exercise of judicial power to "Cases" and "Controversies." U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). For a case to satisfy a federal cour t's case-or-controversy requirement, Article III, Section 2 requires an "irreducible" minimum of standing. Id. at 560. Three elements must be satisfied for a plaintiff to have standing under Articel III: "(1) he or she has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision." Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (citing Lujan, 504 U.S. at 560-61)).
In its Motion, the Government ar gues that Plaintiffs "suffered no direct injury from the allegedly unlawful agreements, and even if they had suffered such injury, no judicial declaration could redress it." (Defs.' Mot. 4 n6. .) The Court has already considered and rejected these arguments. First, Plaintiffs have suffered both a substantive and a procedural injury. Under the injury-in-fact requirement, a plaintiff must show "it has suffer ed an ' injury in fact' t hat is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). This injury can be either substantive or procedural. However, if a plaintiff is assertinga purely procedural injury, then "[t]o satisfy the injury in fact requirement, a plaintiff . . .must show that the procedures in question are designed to protect some threatened concrete inter est of his that is the ultimate basis of his standing." Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 969 (9th Cir. 2003) (internal quotation marks omitted) . " [D]eprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing." Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Here, the Court held that Plaintiffs have suffereda substantive injury because thepremise of Plaintiff's APA claim is that "portions of the WLA Campus are not being used to benefit veterans . . . [as required by] the statutes that regulate the DVA's ability to lease its land." (MTD Order 10.) The Court also found that Plaintiffs have alleged a procedural injury sufficient to establish standing because "Plaintiffs are homeless veterans in the Los Angeles area who used, and would like to continue to use, the services at the WLA [C]ampus," and Plaintiffs are denied procedural protections by virtue of the fact that Defendants utilized their Health Care Resource Sharing Authority to enter into the Disputed Agreements, which, unlike EULs, provides noprocedural safeguards to persons such as Plaintiffs. Compare 38 U.S.C. § 8153 with 38 U.S.C. § 8163. Further, Plaintiffs have provided evidence in support of these alleged injuries. (See generally Summers Decl.; Valentini Decl.; Richardson Decl.) These declarations establish that Plaintiffs are homeless veterans with various disabilities who live in the Los Angel es area who have sough t a nd continue to seek

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benefits and services from the DVA at its WLA Campus. This is sufficient to establish Plaintiffs' injury-in-fact for the purposes of Article III standing.5
Second, the Court held that Plaintiffs meet the redressability requirement of Article III standing. "Redressability depends on whetherthe court has the ability toremedy the alleged harm."Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm'n, 457 F.3d 941, 955 (9th Cir. 2006). Where, as here, Plaintiffs allege procedural injury, the redressability requirement is relaxed. For procedural injury, Plaintiffs "need not demonstrate that the ultimate outcomefollowing proper procedures will benefit them." Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001). Instead, "[p]laintiffs alleging pr ocedural injury . . . need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency's ultimate decision of whether to take or refrain from taking a certain action." Salmon Spawning, 545 F.3d at 1226-27; see also Lujan, 504 U.S. at 573 n.7 (noting that a plaintiff "living adjacent to the site for a proposed dam has standing to challenge the licensing agenc y's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will be withheld or altered"). As the Court has already held:
The relief Plaintiffs seek under their APA claims is not that land-use agreements be executed as EULs goi ng forward. (FAC Req. for Relief.) Rather, Plaintiffs seek: (1) a declaration that the existing landuse agreements entered as ESAs unr elated to sharing health-care resources are unauthorized by law orregulation; and (2) an injunction prohibiting the DVA from entering into ESAs in the future that do not concern the sharing of health-care resources. (FAC Req. for Relief.) . . . The Court has the ability to declare unlawful the current land-use agreements entered into pursuant to ESAs that do not relate to healthcare resource sharing and to enjoi n the Government from entering into future ESAs unrelated to health-care r esource sharing. Such relief would free the land on the WLA Campus to be used to benefit veterans and thereby remedy Plaintiffs' asserted harm.
(MTD Order 14.) Defendants have not provided good reason for the Court to deviate from this reasoning.

5 Defendants also note that some of the Disputed Agreements "provide for at least some ongoing use of the land or resource at issue" by veterans. (Opp'n to Pls.' Mot. 3 n.4.) While this may be true, this does alter the Court's standing analysis, as all of the Disputed Agreements at the very least severely curtail veterans' access to the portions of the WLA Campus encumbered by the Disputed Agreements, and manyof the Disputed Agreements deny veterans access to the encumbered land altogether.
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Defendants also argue Plaintiffs lack standing to challenge the Disputed Agreements because "most of the [Disputed Agreements] had expired by the time the FAC was filed." (Opp'n to Pls.' Mot. 4 n.5.) This claim is belied by the Administrative Record, which establishes that all of the Disputed Agreements were in effect when the FAC was filed in August 2011, except for the nonrecurring film agreements, the Barrington Park agr eement, and the Richmark Entertainment agreement.6 (See Administrative R. 186-87, 415-44, ECF No . 96.) With respect to the filming agreements, Plaintiffs seek only to bar future iflming agreements as being in excess of the DVA's statutory authority.7 This remedy is within the power of the Court. Accordingly, the Court finds that Plaintiffs have standing to challenge the Disputed Agreements under Article III.
B. The Court's Authority to Review the Disputed Agreements
The Government next contends that its decisions to enter into the Disputed Agreements are not subject to judicial review because they were committed to the DVAs' discretion. (Defs.' Mot. 3-11.) The APA provides that courts may not review "agency action [that] is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). As ex plained by t he Ninth Circuit, "there is a strong presumption that Congress intends judicial review of administrative action." Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718 (9th Cir. 2011); see also Abbott Labs. v. Gardner, 387 U.S. 136, 140-41(1967) ("[T]he [APA] . . . embodies the basic presumption of judicial review . . . . [O]nly upon a showing of 'clear and ocnvincing evidence' of a contrarylegislative intent should the courts restrict access tojudicial review."),abrogated on other grounds byCalifano v. Sanders, 430 U.S. 99 (1977). "This presumption is overcome only in two narrow cir cumstances:" (1) when Congress bars judicial review by statute; and (2 ) "in 'those rare instances where statutes are drawn in such broad terms that in a given case t here is no law to apply,'" Pinnacle Armor, 648 F.3d 708, 718-19 (citing Webster v. Doe, 486 U.S. 592, 599 (1988)).

6 Defendants also claim t hat the Court previous ly limited Plaintiffs' injury-in-fact to that caused by ESAs that the Government entered into after 2008 in the MTD Order, and thus "[b]ecause the only agreements Pal intiffs challenge that were executed after 2008 expired before the FAC was filed, this alleged injurycannot support Plaintiffs' standing." (Opp'n to Pls.' Mot. 4 n.5.) This argument is incorrect, as the Court did not so limit Plaintiffs' claim. Rather, the Court was merely paraphrasing portions of the FAC. (MTD Order 10.)
7 Defendants are correct, however, that Plaintiffs may not challenge the Barrington Park agreement pursuant to t heir APA claim, as t here is no evidence in the Administrative Record that Defendants entered into this agreement pursuant to its Health Care Resources Sharing Authority. (Administrative R. 1690-1700.) Rather, itappears that the DVA entered into the Barrington Park agreement with the City of Los Angeles in 1983 pursuant to general authority to lease land, and no formal agreement was ever reached to renew this agreement.
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Defendants argue that the second exception to judicial review of agency action applies here, as it is undisputed that Congress has not explicitly barred judicial re view of t he DVA's use of its authority to enter ESAs pu rsuant to 38 U.S. C. §§ 8151-8153. Defendants make a number of arguments in support of their clai m that the DVA has com plete discretion to enter into ESAs to share health-care resources. (Defs.' Mot. 6-11.) These arguments miss the mark, for there is a clear statutory standard to apply: whether the land and f acilities that are the subject of the Disputed Agreements constitute "health-care resources" as that term is defined by Congress. Indeed, the fact that Congress included a statutory definition of "health-care resources" evinces a clear intent on Congress's part to limit the scope of the DVA's authorityto enter into ESAs. See Heckler v. Chaney, 470 U.S. 821, 832 (1985)h(olding that agency "action at least can be reviewed to determine whether the agencyexceeded its statutory powers");U.S. Fidelity & Guar. Co. v. Lee Invs., LLC, 641 F.3d 1126, 1135 (9th Cir. 2011) (explain ing that "the const ant theme generally applicable to administrative agencies [is] that they are creatures ofstatute, bound to the confines of the statute that created them"). In other words, while the DVA may well have discretion as to what health-care resources it chooses to s hare under § 8153, its author ity is nevertheless constrained by the fact that only health-care resources may be shared.
Defendants' arguments to the contra ry are not persuasive. First, Def endants contend that the language of § 8153 in dicates that "Congress intended the decision to enter into any ESA to be entrusted exclusively to the [DVA]Secretary." (Defs.' Mot. 6.)Specifically, Defendants argue that the following textual features demonstrate Congress's intent to delegate complete discretion to enter into ESAs to the DVA: (1) § 8153 provides that the DVA "may" enter into ESAs; (2) § 8153 conditions entering into an ESA on the Secretary of the DVA's "determin[ation]" of what is in the "best interest of the prevailing standards of the [DVA] medical care program"; and (3) § 8153 provides that the DVA may e nter into ESAs "with any health-care provider or other entity or individual." (Defs.' Mot. 6-8 (c iting 38 U.S.C. § 8153).) While this language may empower the DVA with discretion as to what health-care resources it wishes to share and with whom, it does not authorize the DVA to enter into a greements for the use of land and facilities that are not health-care resources in the first instance.
Second, Defendants argue that thestatutory structure of §§ 81518- 153 confirms Congress's intent to confer complete discretion on t he DVA a s to the ESAs it enters into. (Defs.' Mot. 8.) In particular, Defendants note that "Congress did not include any guidelines for judicial review and did not require the Secretary topromulgate any regulations, which might have constituted law that could be applied." (Defs.' Mot. 8.) This argument fails to overcome the presumption that agency action is generally subject to judicial review , as the Court can determine whether t he DVA has exceeded its statutory authority to share health-care rseources through traditional tools of statutory construction. Defendants also observe that the subchapter in which § 8153 is located is entitled "Sharing of Medical Facilities, Equipment and Information" and that "medical facilities" is defined broadly in a different portion of the subchapter. (Defs.' Mot. 9.) This is irrelevant, as there is no need to resort to statutory definitions in an altogether different section of the statute when the key

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term, "health-care resources," is specifically defined, and the term "medical facilities" does not appear in the relevant provisions.

Third, Defendants ar gue that "[t]he legislative history of § 8153 makes clear that Congress intended this statute toexpand the scope of ESAs into which the[DVA] could enter." (Defs.' Mot. 9.) As discussed above , prior to 1996, the DVA was only authorized to enter into ESAs with "medical schools, health-care facilities, and research centers" for the use of "specialized medical resources."8 38 U.S.C. § 8151 (1993), amended by The Veterans Health Care Eligibility Reform Act of 1996, Pub L. No. 104-262, 110 Stat. 3177 (1996).Under the current version of the statute, the DVA may enter into ESAs with any entity for the sharing of "health-care resources," which is defined more broadly than "specialized medical resources." See 38 U.S.C. §§ 8152-8153. To be sure, it is clear that the 1996 amendments expanded the scope of the DVA's power to enter into ESAs. This is not the same, however, as givni g the DVA unfettered and unreviewable discretion to enter into ESAs, especially when there is a celar standard by which tojudge the DVA's actions.

Fourth, the Government argues that its decisi ons to enter into the Disputed Agreements "are

typical of actions committed to agency discretion" because the DVA is better s

ituated to

"determine the optimal uses for its space, land, and property." (Defs.' Mot. 10-11.) The cases

cited by the Government in support of this argument, however, aer all readily distinguishable from

the instant action. In Drakes Bay Oyster Co. v. Salazar , — F. Supp. 3d ----, 2013 WL 451860

(N.D. Cal. 2013), the court foundhtat "[t]he express language and legisal tive history" ofthe statute

at issue "evidence Congress' intent to gr ant the Secretary complete discretion." Id. at *11; see

also Strickland v. Morton , 519 F.2d 467, 471-72 (9th Cir. 1975) (f inding that Secretary of the

Department of Interior's decision to classify land was unreviewable becau se plaintiffs failed to

show that the government "acted contrary to law, or beyond the limits Congress has put on [its]

discretion"). Here, by contrast, there is no express language evincing an intent to give the DVA

complete d iscretion to enter into any ESAs it wishes, and there is a clear limit on the DVA's

authority, as the DVA may onyl enter into ESAs to shaer health-care resources. Topgallant Group,

Inc. v. United States, 704 F. Supp. 265 (D.D.C. 1998), is also inapposite, as it involved national

security, an area in which courts have been understandably reluctant to second-guess the policy

decisions of those charged with authority to act. Id. at 266 (explaining that judicial review of

agency decisions involving military concerns are not generally subject to review because "such

review would impair necessary flexibility in the management of defense resources").

8 "Specialized medical resources" was denfied as "medical resources (whether equipment, space, or personnel) which, because of cost, limited availability, or unusual nature, are either unique in the medical community or are subject to maximum utilization only through mutual use." 38 US. .C. § 8152(2) (1993),amended by The Veterans Health Care Eligibility Reform Act of 1996, Pub L. N. 104-262, 110 Stat. 3177 (1996).
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Defendants also cite to two cases involving § 8153 for the proposition that the DVA's decisions to enter into the Disputed Agreements constitute unreviewable agencyaction. Neither is on point. In Gibbons v. Fronton, 533 F. Supp. 2d 449 (S.D.N.Y. 2008), the court did not determine whether a particular ESA involved a health-care resource. Rather, the court held that the DVA was not liable for the negligence of a clinic with whic h it e ntered into an ESA under the discretionary function exception of theFederal Tort Claims Act. Id. at 456. In doing so, the court reasoned that
"[t]he [DVA]'s decision to enter a contract with an outside health-care provider is clearly within the discretion granted to the [DVA] in § 8153(a)(1)." Id. (emphasis added). Thus, the court in Gibbons merely found that the DVA's decision to enterinto an ESA with a health-care provider for the provision of medical care was with in the DVA' s discretion—not whether an ESA wholly unrelated to the provision of medical care could constitute a health-care resource. Similarly, in Rapides Regional MedicalCenter v. Secretary, 974 F.2d 565 (5th Cir. 1992),the Fifth Circuit held that the DVA's contract with a hospital t o share a radiation therapy dev ice was a procurement procedure "expressly authorized by sat tute" and thus not subject tothe Competition in Contracting Act's "full and open competition requirements." Id. at 574. As such, theFifth Circuit did not have occasion to decide whether the subject of an ESA fit within the definition of a health-care resource as defined by Congress.

Finally, Defendant s argue that § 8153's congressi onal reporting requirement indicates that

Congress intended to confer complete discretion on the DVA. Section 8153 provides that "[t]he

Secretary shall submit to the Congress not later than February 1 of each year a report on the

activities carried out under thissection during the preceding fiscalyear." 38 U.S.C. 8153(g). The

mere fact that § 8153 includes a r equirement t hat DVA report on its use of its Health Care

Resource Sharing Authority is insufficient to overcome the presumption that the DVA's decisions

to enter the Disputed Agreements aresubject to judicial review.See, e.g., Armstrong v. Bush, 924

F.2d 282, 291-92 (D.C. Cir. 1991) (reasoning that "t he fact that Congress retains some direct

oversight . . . does not necessarily indicate an intent to preclude judicial review"); Am. Friends

Serv. C omm. v . W ebster, 720 F.2d 29, 44 (D.C. Cir. 1983)

(holding that accepting the

government's argument that the existence of a congressional re porting provisions precludes

judicial review "would create an enormous exc eption t o judicial review" because "Congress

exercises oversight ov er all ag encies, gets reports from many, and is often consulted by the

executive branch before specific actions are taken"). Accordingly, the Court finds that the DVA's

decisions to enter into the Disputed Agreements9 are properly subject to judicial review.

9 Defendants also question why Plaintiffs chose to challenge some ESAs but not others, arguing that this "suggests that [Plaintiffs] are not asking the Cour t to exercise its jurisdiction to decide that the agreements were based on a misreading of the law but instead asking the court to set aside [DVA] policy decisions that Plaintiffs disagree with." (Opp'n to Pls.' Mot. 1, 4.) This argument is without merit. As noted by the Court at the hearing, Plaintiffs are under no obligatio n to challenge all ESAs that Defendants have entered into.
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C. Whether the DVA Exceeded it s Statutory Authority by Entering Into the Disputed Agreements
As discussed above, the Court follows ht e analytical framework set forth inChevron to determine whether the DVA exceeded its st atutory authority by entering into the Disputed Agreements. Thus, the Court must first attempt to ascertain whether the Disputed Agreements run contrary to the clear intent of Congress. If the Court finds that the provi sions at issue are ambiguous, the Court must determine the amount of deference due the DVA's interpretation and whether this interpretation is reasonable.
1. Congressional Intent
"Congressional intent may be determined by traditional tools of statutory construction, and if a court using these tools ascertains that Congress had a clear intent on the question at issue, that intent must be given effect at law." Wilderness Soc'y, 353 F.3d at 1059 (internal quotation marks omitted). Here, Congress's inet nt is clear: under §§ 8151-8153 the DVAis authorized to enter into ESAs to share health-care resources, not to enter into land use agreements with no relation to the provision of health-care.
a. Plain Language
The Court first examines the plain language of t he statute as the bes t evidence of Congress's intent. Here, Congress's intent is clearly expressed in the stat ute itself. Section 8151, entitled "Statement of congressional purpose," provides as follows:
It is the purpose of this s ubchapter to strengthen the medical programs at Department facilities and improve the quality of health care provided veterans under this title by authorizing the Secretary to enter into agreements with health-care providers in order to share health-care resources w ith, and receive health-care resources from, such providers while ensuring no diminution of services to veterans.
38 U.S.C. § 8151 (emphasis added). This stat ement of purpose unambiguously evidences Congress's intent to authorize the DVA to enter into ESAs with heatlh-care providers and related entities for the sharing of health-care resources.Notably, this statementof congressional purpose was amended in 1996, at the sam e t ime t hat the DVA's authority to enter into ESAs was expanded. Thus, it reflects current Congressional intent with respect to § 8153.
The statutory definition of "health-care resources" also demonstrates Congress's intent that § 8153 be used to provide for resources that are related to the provision of health-care. "Health-care resources" are defined as "hospital care and medical services . . ., [counseling services], any other
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health-care service, and any health-care suppotror administrative resource." 38 U.S.C. § 8152(1). Hospital care, medical services, counseling services, and health-care services all clearly relate to the provision of health-care. Thus, under the noscitur a sociis and ejusdem generis canons of statutory construction, the "support and administrative resource[s]" referenced in the statute must also relate to the provision of health-care to be considered a health-care resource. See United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997) (explaining that "[noscitur a sociis] means that a word is understood by the associated words, [and ejusdem generis ], that a ge neral term following more specific terms means that the things embraced in the general term are of the same kind as those denoted by the specific terms").
Defendants' arguments that the language of §§ 8151-8153 are ambiguous such that the Court should defer to the DVA's interpretation of the Health Care Resource Sharing Authority are unpersuasive. Defendants argue that "[t]he broad and ambiguous terms used in §§ 8151-8153 confer particularly great discretion on the agency to decide what criteria it will use in determining whether and how to exercise its sat tutory authority." (Defs.' Mot. 14.) Defendants also assert that "[b]ecause §§ 8151-8153 are silent as tocritical matters such as how the Secretary is to determine whether entering a particular ESA isin the 'best interest' of the[DVA] medical program, and leave some ambiguity as to what constitutes a 'health -care resource,'" the Court should defer to the Government's interpretation. (Defs.' Mot. 15.) However, the only specific "ambiguities" identified by Defendants are the fact that the terms "heal th-care support or administrative resource" and "best interest" are not specifically defined within the statute. (Defs.' Mot. 15 n.19, 20.) The entire statutory regime is not render ed ambiguous, however, by the fact that not every single term contained ther ein is defined. Rather, the applic ation of the traditional tools of statutory construction leads inex orably to the conclusi on that "health-care suppor t or administrative resource[s]" are limited to resources that relate to the provision ofhealth-care. And while the use of the term "best interest" does indicate that the DVA has dis cretion as to what health-care resources it wishes to share and with whom, it does not confer complete and absolute discretion to enter into any conceivable land use agreement, as Defendants seem to contend.
b. Statutory Structure
The underlying statutory structure by which the DVA may use and dsi pose of its land also makes clear that Congress only intended §8153 to be used for the sharing of resources relating to healthcare. As set forth in detail above, at the time the Disputed Agreements wer e exe cuted,10

10 The fact that Congress has now prohibited Defendants from entering into EULs on the WLA Campus does not indicate that Congress intended that the DVA utilize its authority under § 8153 to enter into landuse agreements such as the Disputed Agreements. To the contrary, barring the DVA from using its authority to enter into EULs on the WLA Campus would have been a meaningless actif the DVA could accomplishprecisely the same result through the use of § 8153.
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Defendants also had the power toenter into EULs pursuant to38 U.S.C. §§ 8161-8169. The DVA was authorized to enter into EULs if "applying the consider ation under such a lease to the provision of medical care and services would result in a demonstrable improvement of services to eligible veterans in the geographic service-delivery area within which the property is located." 38 U.S.C. § 8162(2)(B), repealed by 2012 Act, Pub. L. No. 112-1541, 26 Stat. 1165 (2012). Thus, Congress knew how to authorize the DVA to enter into land use agreements for the purpose of generating revenue. As such, reading § 8153 to allow this same res ult, only without the procedural safeguards required by § 8163, would render the DVA's EUL authority superfluous. See Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991) ("Under accepted canons of statutory interpretation, we must interprtestatutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous."). Additionally, if the DVA were authorized to enter into the same types of land use agreements under both § 8153 and § 8162, the DVA would never utilize § 8162, as agreements under that se ction are subject t o the procedural safeguards set forth in § 8163. The Court will not interpret § 8153 to produce such an illogical result. See United States v. Wahid, 614 F.3d 1009, 1014 (9th Cir. 2010) ("[W]e abide by the principle that where Congress includes particluar language in one section ofa statute but omits it in another section of the sameAct, it is generally presumed thatCongress acts intentionally and purposely in the disparate inclusion or exclusion.").
Defendants cite to Connecticut National Bank v. Germ ain, 503 U.S. 249, 256 (1992), for the proposition that "redundancies across statutes are not unusual events in drafting, and so long as there is no 'positive repugnancy' between two laws, a court must give effect to both." Id. at 253 (internal citation omitted). Here, however, the DVA has interpreet d its authority to enter into ESAs in such a way that is "positively repugnan[t]" to its authority to enter into EULs, as it renders the EUL authority superfluous. As such, this statutory structure supports the conclusion that the DVA is only authorized to enter into ESAs that relate to the provision of health-care.
c. Legislative History
The legislative history of these provisions confirms Congress's intent to limit the DVA's authority under § 8153. As stated, the D VA's EUL authority may now be us ed "only for the provision of supportive housing." 38 U.S.C. § 8162(2) (2012). That Congress chose to so circumscribe the DVA's authority indicates that Congress knows both (1) how to authorize the DVA to lease underutilized DVA property to generate revenue and (2) how to repeal that authority. Reading § 8153 to allow the DVA to nevertheless enter into land use agreements solely for the purpose of revenue generation would thus undermine Congressionailntent. Moreover, the legislative history of the 1996 amendments to §§ 8151-8153, which ex panded the DVA's aut hority to enter into ESAs, demonstrates that this authority was not unlim ited. This legislativ e history explains that ESAs "allow [DVA] medical centers and community pr oviders to provide medical care to their respective patient populations more efficientlyby avoiding wasteful duplication of equipment and services within a local community." S. Rep. No. 104-372, at 21 (1996). The 1996 amendments
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were intended to "ease [restrictions on the DVA'sauthority to enter intoESAs] by authorizing [the DVA] to enter into agr eements with any non-[DVA] health care provider for the mutual use or exchange of use of any health care resources." S. Rep. No. 104-372, at 21 (emphasis added). Examples of sharing partners referenced in t he legislative his tory include "health maintenance organizations, insurance carriers, individual physici ans, or other individual care providers." S. Rep. No. 104-372, at 21. This language clearly hsows that § 8153 is intended to be used to share resources that relate to the provision of heal th-care, and not to enter into land us e agreements with no purpose other than the generation of revenue.
Defendants point to the legislat ive history of 1993 amendments to the D VA's sharing authority, which expanded the DVA's authority to share resources with state veterans homes. Priority VA Health Care for Persian Gulf Veterans, Pub. L. No. 103-210, § 3, 107 St at. 2496 (1993). The legislative history to these amendments states that "[t]here would appear to be significant opportunities to avoid duplication th rough t he development of agreements to share services necessary to the operationof a medical facility. These might include such services as grounds maintenance, laundry, housekeeping, and pharmacy. " H.R. Rep. No. 103-92, at 15 (1993) (emphasis added). Defendants maintain that this language indicates that "Congress specifically intended this 1993 amendment to cover all of those resources that supported the operation of a medical facility, even if they werenot directly related to provisionof medical care to a Veteran (or other eligible) patient." (Opp'n to Pls.' Mot. 10.) This argument fails because while § 8 153 undoubtedly confers authority to enter ESAs for the provision of "health-care support or administrative resource[s]," it cannot be reasonably read to permit ESAs that do not relate to the provision of health-care and serve no purpose other than to generaet revenue for the DVA for the reasons articulated above. Rather, this language indicates that Congress wished to expand the DVA's authority so that it could contract with third-party administrative or support services, such as "grounds maintenance, laundry, housekeeping, and pharmacy," to support the DVA's primary purpose of providing health-care to veterans.
The purpose of these provisions is clear and unambiguous: §§ 8151-8153 allow the DVA to enter agreements with third parties to share resources that are related to the provision of health-care. Here, none of the Disputed Agreements are for the purpose of sharing health-care resources as that term is defined by Congress.
2. The DVA's Interpretation of § 8153
Even if the Court assumesarguendo that §§ 8151-8153 were ambiguoussuch that the Court were to r each the second step under the Chevron framework, the Court finds that the DVA' s interpretation of its sharing authority is entitled to no deference and that it unreasonably expands the DVA's authority to enter into ESAs as established by Congress.
The level of deference due an agency's interpretation depends on whether "Congress delegated authority to the authority generally to make rules carrying the force of law, and . . . the agenc y
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interpretation claiming deference was promulgated in the exercise of that authority." Wilderness Soc'y, 353 F.3d at 1059 (quotingUnited States v. Mead Corp,. 533 U.S. 218, 226-27 (2001)). The deference due agency action thatdoes not meet this standard "depends upon 'the thoroughness evident in its consideration, t he validity of its reasoning, its c onsistency with earlier and later pronouncements, and all those factors which give it power to persuade." Wilderness Soc'y, 353 F.3d at 1060 (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)) . The DVA's interpretations of its sharing authority is contained within informal guidance documents such as policy handbooks and directives that were not promulgated in accordancewith the DVA's authority to make rules with the force of law. (See Administrative R. 15-88.) As such, the Court looks to the factors enunciated in Skidmore to determine the level of deferenc e due the DVA's interpretation.
The DVA has interpreted "health care re sources" to include "health care support and administrative resources, the use of medical equipment, or the use of space." (Administrative R. 24 (emphasis added).) Thus, per the DVA, "[ESAs] for the use of . . . space (including parking, outdoor recreational faciliites, and vacant land)are authorized under 38U.S.C. [§] 8153." (Administrative R. 26.) This conclusory assertion is not supported by any reasoned analysis or justification. It appears that the DVA has seized on the use of the word "space" in § 8153(a)(3) and concluded that "health care resources" includes"space," no matter how that space is utilized. This reading of § 8153 completely ignores the c ontext in which the wo rd " space" appears. Notably, the word "space" does not appear in the statutory definition of "health care resources." Rather, § 8153(a)(3) provides that the DVA need not utilize a com petitive bidding process, as might otherwise be required, "[i]f the health-care resource required is a commercial service, the use of medical equipment or space, or research." 38 U.S.C. § 8153(a)(3) (emphasis added) . This provision, and its use of the conditional subordinating conjunction "if" and the adjective "medical," recognizes that spacecan be a health-care resource in some situations and allows the DVA to bypass certain procedural requirements when that is the case. Section 8153(a)(3) does not, however, stand for the proposition that all space under the DVA or VA GLA's cont rol may properly be the subject of ESAs, no matter the purpose for which the space is to be used.
Defendants mak e t he r elated argument that "Plaintiffs have failed to articulate a consistent, coherent definition of the 'health-care resources' that [the DVA] isauthorized to enter agreements to 'share' pursuant to 38 U.S.C.§§ 8151-8153." (Opp'n to Pls.' Mot1. 1.) Specifically, Defendants argue, "[i]t cannot be . . . that whether a buildi ng or piece of land constitutes a 'health-care resource' depends upon how the parties to a sharing agreement intend to use it," because "[t]he statute itself includes no require ment that the resources subj ect to ESAs be used to p rovide health-care services."11 (Opp'n to Pls.' Mot. 11.) Defendants are correct in that the propriety of

11 Defendants also argue that "it cannot be tha t, as Plaintiffs appear to argue . . ., that whether a building or piece of land constitues a 'health-care resource' hinges upon whether the sharing agreement would result in the provision of health-care services to Veterans."
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an ESA does not hinge on precisely how the health-c are resource is ut ilized. The determining factor is whether what is shared is a health-care resource in the first instance. As discussed, the term "health-care resources" is specifically definedin the statute. A pal in language reading of that definition indicates that land or space may only be a health-care resource if it is a "health-care support or administrative resource." 38 U.S.C. § 8152(1). The incul sion of the adjective "healthcare" before "support or administrative resource," limits the scope of "support or admin istrative resources" to resources that are related to the provision of health-care. As such, sharing space that is not related theprovision of health-care is not authorizedby statute. Rather, only space that is actually used for health-care related purposes may properly be the subject of an ESA.
Defendants attempt to justify their interpretation in their briefs by arguing that the DVA "has read that term [medical spac e] . . . to mean space c ontrolled by the Veterans Health Administration ("VHA") . . . which may be any real property . . under VHA's control, because such property may either be used directly to serve medically-related purposes or may be deemed necessary for the provision of medical care."12 (Opp'n to Pls.' Mot. 8-9.) Impotrantly, however, this reasoning does not appear in the Administrative Record. Thus, this argument is nothing more than a " post hoc rationalization[] advanced by an agency seeking to defend past agency action against attack," and as such it is not enittled to deference. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (internal quotat ion marks omitted). Moreover, t here is nothing in the language, statutory structure, or legisl ative history of §§ 8151-8153 indica ting that Congress intended t o grant the DVA such broad authority. Thus, while it is certainly true that property under the VHA's control may be used for "medically-related purposes," this does not mean that such space or property under the cont rol of the VHA is always a "health-care resource" that may be shared under § 8153. This is the faulty assumption upon which the DVA's unreasonable interpretation of its sharing authority rests.
Defendants also argue that the D VA's interpretation is justified because "agreements to sell 'space' may benefit Veterans either by reduci ng [the DVA]'s costs to maintain u nder-utilized resources or by providing revenue that [the DVA] uses to support Veteran health care programs at WLA." (Defs.' Mot. 18.) Thismay be true, but this interpretation of the statutory language reads the phrase "health-care" completely out of the statute such that the DVA may enter into any land agreement it wishes for the solepurpose of raising revenue under §8153. Such an interpretation cannot be reconciled with the clear and unambiguous statutory definiti on of "health-care
(Opp'n to Pls.' Mot. 11-12.) The Court agreesthat §§ 8151-8153 clearyl authorize the DVA to share or "sell" health-care resources to other entities in the community, and so an ESA need not result in the direct provision of health-care to veterans.
12 Defendants also argue that "[b]y deciding to enter a proposed land-use agreement as an ESA, [DVA] expresses its interpretation thatthat agreement is for use of a 'health-care resource,' and is permitted under the ESA authority." (Opp'n to Pls.' Mot. 16.) The Court is not persuaded by this circular reasoning.
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resources," the underlying statut ory structure by which t he DVA may use and dispose of land under its control, or the legislative history of the 1996 amendments. As such, the Court finds that the DVA's impermissible construction of§ 8153 is entitledto no deference. See Wilderness Soc'y, 353 F.3d at 1069 (declining to give agency interpretation deference under Skidmore because it "goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear" (quoting Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 481 (2001))).
Finally, the Government cont ends Congress is aw are of and has implicitly accepted the DVA's interpretation, and therefore its interpretation is permissible.13 Defendants cite to United States v. Riverside Bayview Hom es, Inc. , 474 U. S. 121 (1985), for the pr inciple that "a refusal by Congress to overrule an agency's construc tion of l egislation is at least some evidence of the reasonableness of that construction." Id. at 137. InRiverside, however, the Supreme Court held that Congr ess had acquiesced to the agency in terpretation at issue only because "the administrative construction [ had] been brought to Congress's attention through legislation specifically designed to supplant it." Id. at 136-37. The Ninth Circuithas likewise recognized that "[c]ongressional acquiescence can only be inferred when there is 'overwhelming evidence' that Congress explicitly considered the 'precise issue' presented to the court." Morales-Izquierdo v. Gonzalez, 486 F.3d 484, 493 (9th Cir. 2007) (en banc). As such, "[a] finding of congressional acquiescence must be reserved for those rare instances where it is very clear that Congress has considered and approved of an agency's practice." Id.
The prim ary ev idence from which Defendants w ould have the Court infer that Congress has implicitly accepted the DVA's interpretation ar e the annual reports that the DVA is required to make to Congress. Examination ofthese reports, however, reveals thatthey fail to explicitly state that many ESAs are completely unrelated to the provision of health-care. Rather, these reports obfuscate this fact by stating that the "[DVA] provides a limited number of resources, including unused medical space, to affiliated medical co lleges, community hospitals, and other sharing partners." (See, e.g., Administrative R. 126.) This language would naturally lead Congress to assume that the DVA is properly utilizing its sharing authority to enter into mutually beneficial agreements with third party health-care providers and related entities.14 Defendants argue that
13 In its Reply, Defendants cl arify that they are not arguing that the Court should accept their interpretation of the statute solely because Congress has acquiesced to it, only that Congress's "awareness and implicit acceptance ofthese interpretations" indicates that the interpretations are reasonable. (Defs.' Reply 3 n.1.)
14 Indeed, following the publication of an article in the Los Angeles Times concerning the DVA's use of ESAs on the WLA CampusC, ongressman Lane Evans and Congresswoman Corrine Brown, members of the House Subcommittee on Oversight and Investigations of the Committee of Veterans Affairs sent a seriesof letters to the then-Secretary of the DVA questioning the DVA's use of its authorit y under § 8153 to enter into the ESA with the Brentwood School (Administraitve R. 246.1-246.26.) These lteters expressed concern that
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the reports are nevertheless sufficient because they "put Congress on notice that it understands generating revenue to be one of the objectives of using the ESA authority." (Defs.' Reply 4.) While the repor ts do s tate that the DVA's sharing authority has allowed it to generate revenue (see, e.g., Administrative R. 127), they neglect to explain that the DVA has done so by entering into ESAs totally divorced from the provision of health-care. Def endants also contend that "[t]estimony before its oversightcommittees provided Congress with further information about [the DVA's] use of ESAs." (Defs.' Mot. 19.) DVA officials have testified before Congress concerning the DVA's legal authority to use and dispose of property under its control. See Assessing Capital Asset Realignment for Enhanced Services and the Future of the U.S. Departm ent of Veterans Affairs' Health Infrastructure : Hearing Before the Subcom m. on Health of the H. Com m. on Veterans' Affairs, 111th Cong. 31-33 (2009) ("2009 Hearing"). However, the testimony itself did not reference th e DVA's use of ESAs to enter into agreements su ch as those at issue here. Rather, the only information concerning the DVA's use of its sharing authority to enter into such agreements is located in the appendix. (2009 Hearing 79.) Thislimited information, buried in an appendix, does not constitute the "overwhelming evidence" necessary to infer congr essional acquiescence.15 Indeed, there is no evidence, such as proposed legislation that would amend the statutory language at issue, that Congress has actively consdi ered the "precise issue" before the Court. See Rapanos v. United States , 547 U.S. 715, 750 (2006) (distinguishing between "Congress's deliberate acquiescence" and "Congr ess's failure to express any opinion"). Accordingly, the Court finds that these reports to Congress fail to establish the reasonableness of the DVA's interpretation of its authority under § 8153.
In sum, the Court holds that the DVA's interpretation of its authority to enter into ESAs pursuant to 38 U.S.C. §§ 8151-8153 violates the clearly expressed intent of Congress.

"local sharing agreements . . . have the potential for being undervalued, sole-source contracts that do not provide the public and the [DVA] with the protections of [EULs], and can significantly increase [the DVA]'s liabilitiesas a landowner." (Administrative R. 246.6.) The DVA assured Congressman Evans and Congresswoman Brown that it had "reviewed the terms and conditions of the agreement and det ermined that VA had the authority pursuant to 38 U.S.C. § 8153 to enter into [the Brentwood ESA]." (Administrativ e R. 246.28.) Relatedly, the Under Secretary for Health also recommended delaying the renewal of the ESA wiht the UC Regents for the use of Jackie Robinson Stadium because "there is no direct benefit to veteran care." (Administrative R. 411.)
15 A letter from a member of the Brentwood School Board of Trustees to Senator Dianne Feinstein, which letter stated that the Brentwood School was "explor[ing] a more permanent, formal and long term association with the [DVA]" via an ESA (Administrative R. 229-30), and the single mention of an ESA for "roof top space [with] a private c ellular communications company" (Administrative R. 101), are also not sufficient to constitute overwhelming evidence of acquiescence.
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D. Remedy
At oral argument Defendants cont ended that, should the Court find that the DVA exceeded its statutory authority by entering into the Disputed Agreements,hte Court should remand to the DVA for further deliberation in light of the Court's order. "The general rule is that when an administrative agency has abused its dsi cretion or exceeded its statuot ry authority, a court should remand the matter to the agency for further consideration." Abramowitz v. EPA, 832 F.2d 1071, 1078 (9th Cir. 1987). However, "when the language oaf statute is clearand unambiguous it must be given effect." Id. (citing Chevron, 467 U.S. at 842-43) Thus, inAbramowitz the court ordered the EPA to disapprove proposed staet regulations because "the languageof the Act [is] clear and unambiguous." Abramowitz, 832 F.2d at 1079.
Here, the language of §§ 8151-8153 is clear and unambiguous. The DVA is authorized to share health-care resources. Space may be a health-careresource when it is used in a manner that is related to the pr ovision of health-care. T he Disputed Agreements do not share space that is related to the provision of health-care. Accordnigly, with the exceptionsof the Barrington Park and Richmark Enter tainment agreements, 16 the Court finds the Disputed Agreements to be unauthorized by law and therefore void. However,hte Court will stay the enfocr ement of its Order pending the resolution of any appeal. In addition, t he Court declines to enter an injunction with respect to future ESAs. The Court instead leaves the determinatoi n of what ESAsare appropriate in the future to the DVA in light of the Court's order.
III. RULING
For the f oregoing reasons, the Court DENIES Defendants' Motion and GRANTS IN PART Plaintiffs' Motion.
IT IS SO ORDERED.

16 As noted above, there is no evidence in the Administrative Record that the DVA ever used its authority under § 8153 to enter into the Barrington Park agreement. As for the ESA with Richmark Entertainment,it appears from the Administrative Record that the DVA terminated this ESA in 2010, and the DVA nowhas a Memorandum of Understanding with Richmark Entertainment. (Adm inistrative R. 186.) As such, it does not appear that the DVA is currently exceeding its authorit y under §§ 8151-8153 with respect to these agreements.
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 GREGORY VALENTINI, et al.,

Case No. 11-CV-04846-SJO (MRWx)

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Plaintiffs,

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Defendants.

The Honorable S. James Otero JUDGMENT

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JUDGMENT

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The Court, having considered Plaintiffs’ and Defendants’ respective Motions for

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4 responses and replies thereto, and any oral argument thereon, and good cause appearing

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the following

7 agreements entered into by the Department of Veterans Affairs (“DVA”) concerning

8 parcels of land and facilities located on the DVA’s West Los Angeles Campus are

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 The March 1, 2010 agreement with Brentwood Schools, and any amendments

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thereto;

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 The March 17, 2000 agreement for laundry services, which was assigned to

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Sodexho Marriot Laundry Services on May 10, 2001, and any amendments

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thereto;

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 The May 1, 2001 agreement with UC Regents, and any amendments thereto;

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 The August 10, 2006 agreement with Twentieth Century Fox Television, and

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any amendments thereto;

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 The August 24, 2007 agreement with Veterans Park Conservancy, and any

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amendments thereto;

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 The August 6, 2010 agreement with Westside Breakers Soccer Club, and any

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amendments thereto;

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 The July 15, 2002 agreement with Westside Services, LLC, and any

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amendments thereto;

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 The July 6, 2006 agreement with TCM, LLC, and any amendments thereto;

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 The filming agreements which the DVA has entered into with various third

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The Court STAYS the enforcement of this Judgment with respect to these

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By: THE HONORABLE S. JAMES OTERO

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CENTRAL DISTRICT OF CALIFORNIA

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: October 21, 2013

TITLE:

Gregory Valentini, et al. v. Eric Shinseki, et al.

======================================================================== PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz Courtroom Clerk

Not Present Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

======================================================================== PROCEEDINGS (in chambers): ORDER GRANTING IN PART AND DENYING IN PART THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S MOTION (1) FOR LEAVE TO INTERVENE UNDER RULE 24(a)(2); AND (2) TO VACATE THE JUDGMENT UNDER RULE 59(e) [Docket No. 144]; GRANTING IN PART AND DENYING IN PART THE BRENTWOOD SCHO OL'S MOTION (1) FOR LEAVE TO INTERVENE UNDER RULE 24(a)(2); AND (2) TO VACATE THE JUDGMENT UNDER RULE 59(e) [Docket No. 155]; DENYING AS MOOT THE REGENTS OF THE UNI VERSITY OF CALIFORNIA'S EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME TO FILE AN APPEAL [Docket No. 146]

This matter is before the Court on the Regents of the University of California's ("UCLA") Motion (1) for Leave to Intervene under Rule 24(a)(2);and (2) to Vacate the Judgment under Rule 59(e) ("UCLA Motion") and the Brentwood School's (" Brentwood") (together with UCLA, "Movants") Motion (1) for Leave to Intervene under Rule 24(a)()2; and (2) to Vacate the Judgment under Rule 59(e) ("Brentwood Motion") (collectively, the "Motions"), filed respectively on September 23, 2013, and October 3, 2013. Plaintiffs Gregory Valentini, Adrian Moraru, Jane Doe, Leroy Smith, Jr., Leslie Richardson, Wayne Early, Willie Floyd, Demetrious Kassitas, Zachary Isaac, Lawrence Green, and the Vietnam Veterans of America (collectively, "Plaintiffs") filed an Opposition to the UCLA Motion on September 30, 2013 and to theBrentwood Motion on October 10, 2013. UCLA replied to Plaintiffs' Opposition on October 7, 2013. Defendants Eric Shinseki ("Shins eki") and Donna M. Beiter ("Beiter") (t ogether with Shinseki, "Defendants" or the "Government") f iled a Response to the UCLA Motion on September 30, 2013. UCLA also filed an Ex Parte Application for an Order Extending the Time to File a Noticoef Appeal ("Application") on September 26, 2013. The Court found these matters suitable for dec ision without oral ar gument and vacat ed the hearings set for O ctober 21, 2013 and November 4, 2013. See Fed. R. Civ. P. 78(b). For the
following reasons, the CourtGRANTS IN PART AND DENIES IN PARTthe Motions, andDENIES AS MOOT UCLA's Application.

/// /// I. FACTUAL AND PROCEDURAL BACKGROUND

MINUTES FORM 11 CIVIL GEN

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The individual Plaintiffs in this case are severely disabled veterans with mental disabilities, brain injuries, or both. (See Order Den. Defs.' Mot. for Summ. J.;Granting in Part Pls.' Mot. for Summ. J. ("Summ. J. Order") 1, ECF No1. 41.) As a result of Plaintiffsd' isabilities, they are homeless and cannot access necessary medical and mental health treatment. (Summ. J . O rder 1.) The individual Plaintiffs are joined by the Vietnam Veterans of America, which asserts associational standing on behalf of its members. (Summ. J. Order 1.)

Shinseki is the Sec retary of t he United States Department of Ve terans Affairs ("DVA"), whose official duties include execution and administraotin of all laws and programs governed by the DVA. (Summ. J. Order 1-2.) Shinseki is responsiblefor ensuring that the DVA complies with contracts and land grants. (Summ. J. Order 2.) Beiter is the Director of the Veterans Affairs Greater Los Angeles Healthcare System, whose official duties inc lude supervising daily operations and services of all programs operated by the West Los Angeles Campus ("WLA Campus"). (Summ. J. Order 2.)

On June 8, 2011, Plaintiffs filed a Class ActionComplaint ("Complaint") against the Government (ECF No. 1), which was superseded by the FirtsAmended Complaint ("FAC") on August 12, 2011 (ECF No. 24). Plaintiffs asserted six causes ofaction against Defendants: one claim for violation of the Administrative Procedure Act ("APA"); two claims for violations of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and three claims for violationsof the Government's duties as trustee of a charitable trust. (See generally FAC.) Plaintiffs' APA claim first appeared in the FAC. C( ompare Compl., with FAC.)

On March 16, 2012, Defendants fi led a Motion to Dismiss, which the Court granted in part and denied in part, permitting Plaintiffs' APA claim and one of Plaintiffs' Rehabilitation Act claims to proceed. ( See generally Order Granting in Part and Den. in Part Defs.' Mot. to Dismiss, ECF No. 70.) On May 25, 2012, Defendants filed a Mo tion for Reconsideration (ECF No. 83) based on the Ninth Circuit'sen banc decision in Veterans for Common Sense v. Shinsek,i 678 F.3d 1013 (9th Cir. 2012). The Court granted in part and deni ed in part this Motion for Reconsideration, leaving only Plaintiffs' APA claim. (See generally Order Granting in Part and Den. in Part Defs.' Mot. for Recons., ECF No. 87.)

In their APA claim, Plaintiff s argued that t he DVA had exceeded its stat utory authority under

Health Care Resources Sharing Authority, 38 U.S.C. §§ 8151-8153, by entering into a number of

agreements with third parties for sharing the use of portions of the WLA Campus (the "Disputed

Agreements"). Among the Dis puted Agreements were (1) an agreement with Brentwood

("Brentwood Agreement") under which Brentwood has the right to ues a 20-acre parcel of the WLA

Campus as an athletic complex ("Complex") and (2) an agreem

ent with UCLA ("UCLA

Agreement") for the use of Ja ckie Robinson Stadium ("Stadium") by the UCLA baseball team.

(FAC ¶ 24.) Defendants and Plaintiffs filed cross Motions for Summary Judgment to decide the

APA claim on April 10 and May 10, 2013, respectively. (ECF Nos. 116, 124.)

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On August 29, 2013, the Court ent ered judgment in favor of Plai ntiffs ("August 29 Judgment"), declaring the Disputed Agreements to be unauthoriz ed by law and therefore void. (Aug. 29 J., ECF No. 142.) The Court stayed enforcement pending the resolution of any appeal. (Summ. J. Order 21.) On September 23, 2013, UCLA fil ed its Motion, and Brentwood followed s uit on October 3, 2013.1 Movants seek to intervene for the purpose of vacating the Court's August 29 Judgment, or in the alternative, for the purpose of appeal. (UCLA Mot. 1; Brentwood Mot. 1.)
II. DISCUSSION
Movants contend that, as parties adversely affected by the Court's August 29 Judgment voiding the Disputed Agreements, they have a right to intervene in the instant action under Federal Rule of Civil Procedure 24(a). (UCLA Mot. 2; Brentwood Mot. 1.) Rule 24(a) requires a court,
[o]n timely motion . . . [to] permit anyone to intervene who . . . claims an interest relating to the property ortransaction that is the subject of the action, and is so situat ed that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless the existing partiesadequately represent that interest.
Fed. R. Civ. P. 24(a)(2). The language of Rule 24(a)(2) contains four discrete elements:
(1) t he application must be timely ; (2) the applicant must have a "significantly protectable" interest relating to the transaction that is the subject of the litigation; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to p rotect its interest; and (4) the applicant's interest must be inadequately repres ented by the parties before the court.
League of United Latin Am. Citizens v. Wilson(LULAC), 131 F.3d 1297, 1302 (9th Cir. 1997);see also Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978) ("Intervention of right motions, however, should be treated more leniently than permissive intervention motions because serious harm is more likely."). "If the court finds that the motion to intervene was not timely, it need not reach any of the remaining elements of Rule 24." United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996); see also United St ates v . Oregon , 913 F.2d 576, 588 (9th Cir. 1990) ("Timeliness is the threshold requirement for intervention.").

1 The Brentwood Motion "incorporates the legal arguments in support of UCLA's Motion . . . [because] Brentwood's relationship to this ilgitation is substantially identical to UCLA's." (Brentwood Mot. 1.)
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A. Timeliness of the Motions
"Timeliness is to be determined from all the circumstances," NAACP v. New York, 413 U.S. 345, 366 (1973), but in the Ninth Circuit three factors predomina te the inquiry: "(1) the stage of the proceeding at which an applicant seeks to intervene;(2) the prejudice to other parties; and (3) the reason for and length of the delay,"LULAC, 131 F.3d at 1302 (quotingCnty. of Orange v. Air Cal,. 799 F.2d 535, 537 (9th Cir.1986)). Alt hough a lo ng delay in moving to intervene is not determinative, "any substantial lapse of time weighs heavily against intervention." Washington, 86 F.3d at 1503; see also LULAC, 131 F.3d at 1302 (holding that a party who filed its motion to intervene twenty-seven months after an actionhad commenced was "fight[ing] an uphill battle"). Ultimately, the question of timeliness is left to a district court's discretion. NAACP, 413 U.S. at 366; LULAC, 131 F.3d at 1302.
1. Stage of the Proceedings
It is within a district court's discretoi n to "control the proceedings before it." United States v. Alisal Water Corp. , 370 F.3d 915, 922 (9th Cir. 2004) (quoting Oregon, 913 F.2d at 588) (internal quotation marks omitted). Although "a party's in terest in a specific phase of a proceeding m ay support intervention at that particular stage of the lawsuit," courtsdisfavor intervention by parties seeking "merely to attack or thwart a remedy." Alisal, 370 F.3d at 921- 22 (internal citations omitted); see also R&G Mortg. Corp. v. Fed. Hom e Loan Mortg. Corp. , 584 F.3d 1, 7 (1st Cir. 2009) ("As a case progresses toward its ultimate conclusion, the scrutiny attached to a request for intervention necessarily intensifies."). As aresult, the stage-of-the-proceedings factor typically weighs against an intervenor whose ultimate purpose appears to be the reopening of previously litigated issues. See Oregon, 913 F.2d at 588. Thisfactor also weighs against intervention where "a lot of water had already passed underneath [the] litigation bridge." LULAC, 131 F.3d at 1303; see also Smith v. Marsh, 194 F.3d 1045, 1051 (9th Cir. 1999) ("[S]ubstantial engagement by the district court with the issues in a case weighs heavily against allowing intervention as of right." (internal citations and quotation marks omitted)).
Movants seek t o intervene after the Court has adjudicated each claim and closed the action. (Summ. J. Order 5, 21.) Nosisues remain pending before the Court. It is unclear, therefore, what Movants hope to obtain by intervening for the pur pose of further proceedings before this Court other than the opportunity to re litigate Plaintiffs' APA claim. Mov ants, h owever, contend that unlitigated issues remain because "[t]he [DisputedAgreements] were treatedas indistinguishable in the Court's [Summary Judgment Order]." (UCLA Mot. 24.) Movants indicate that, if given the opportunity, they will "present evidence and ar gument" as to why t he UCLA and Brentwood Agreements should not be inva lidated under 38 U.S.C. §§ 8151-8153. 2 (UCLA Mot. 24;

2 It is unclear what new evidence Movants could offer because, as Defendants correctly point out, "the record on which this claim may be decided is limited to the certified
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Brentwood Mot. 3-4.) In a preview of the arguments they intend toput forward, Movants attempt to distinguish their Agreements with the DVA from the other Disputed Agreements by describing how Movants' Agreements pr ovide heal th-care benefits to veterans. ( See UCLA Mot. 4, 15; Brentwood Mot. 3-4.) This line of argument, however, merely retreads ground already covered by the parties.
In its Summary Judgment Order, the Cour t resolved the issues raised by Movants. The Court ruled that 38 U.S.C. § 8153 "is intended to be used toshare resources that relate to the provision of health-care" and found that "none of the Disputed Agreements are for the purpose of sharing health-care resources as that term is defined by Congress." ( Summ. J. Order 16.) The Court went on to explain that "the propriety of [the Disputed Agreements] does not hinge on precisely how the health-care resource is utilized." ( Summ. J. Order 17-18.) Rather, "[t]he determining factor is whet her what is s hared is a health-car e resource in the first instance." (Summ J. Order 18.) The fact that veterans sometimes utilize the Stadium and the Complex for recreation and rehabilitation does not convert those sports facilities into health-care resources. The Court did not fail to distinguish between the Dis puted Agreements. The Disputed Agreements were simply indistinguishable in the one respect that mattered to the APA claim; none of the facilities subject to the Disputed Agreements qualified as health-care resources.3
Allowing intervention at this late stage of the proceedings would only permit Movants to reopen and relitigate hotly contested issues resolved after etxensive litigation. Notonly has "a lot of water already passed underneath the litigation bridge," but the whole stream has dried up. Reopening the procedural flood gates at this late stage serves no purpose. Accordingly, the stage-of-theproceedings factor weighs strongly against granting the instant Motions.
/// ///
2. Prejudice to Other Parties
Motions for intervention filed later in the proceedingsare more likely to preuj dice the parties to the action. LULAC, 131 F.3d at 1304. Once admtited to the district court proceedings, a late-moving
administrative record, as supplemented." (Defs.' Resp. to UCLA Mot. 2, ECF No. 149s; ee also Order Gr anting in Part and Den. in Part Pls.' Mot. to Supp. the Admin. R. ("Admin. Order") 4-5, 9, ECF No. 108.)
3 Furthermore, al l the features that Mov ants claim are di stinguishable were before the Court when it found that "noneof the Disputed Agreements are for the purpose of sharing health-care resources as that term is defined by Congress." (Summ J. Order 16.) The Government addressed Movants' arguments in its Motion forSummary Judgment. (Defs.' Mot. for Summ. J. 21-23, ECF No. 116.)
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: October 21, 2013

intervenor is more likely to relitigate issues essential to an action's resolution, see Washington, 86 F.3d at 1506, and to delay "relief from long-standing inequities," Alaniz, 572 F.2d at 659. See also LULAC, 131 F.3d at 1304.
Movants seek not only to relitigate issues that have been resolved, but to reopen a case already adjudicated. This is bound to prejudice the parties by unsettling over two years of litigation and muddying the issues on the eve of appe al. Furthermore, relitigation of the APA claim will necessarily delay the relief to which Plaintiffs, veterans long-suffering from mental disabilities and homelessness (see FAC ¶¶ 1-18), are entitled under the August 29 Judgment. Movants contend that "delay resulting from [Movants'] intervention atthis stage in the litigaiton will not directly affect [P]laintiffs' care" because the Court's invalidation of the DisputedAgreements "will not immediately result in housing or long-term care for [Plaintiffs] or other homeless veterans." (UCLA Mot. 10.) Movants' misunderstand the nature of prejudice. The Court recognizes that invalidation of the Disputed Agreements will not have an immediate impact on Plaintiffs, but every delay in the final resolution of Plaintiffs' claims prolongs their injuries and the suffering ofsimilarly situated veterans. The sooner this case is resolved, the sooner Plaintiffs will begin receiving medical care, whether it be tomorrow or next year. Because intervent ion for further proceedings before this Co urt will unnecessarily delay Plaintiffs' "relief from long-sat nding inequities," the Court finds that the factor of prejudice also weighs against granting the Motions.
3. Reason for and Length of Delay
Where the first two timeliness factors weigh against intervention, the movant "must convincingly explain [its] delay in filing the[] motion[] to intervene." Cal. Dep't of Toxic Substances Control v. Commercial Realty Projects, Inc. (Toxic Substances), 309 F.3d 1113, 1119 (9th Cir. 2002). "A party seeking to intervene must act as soon as he'knows or has reason to know that his interests might be adversely affected by the outcome of the litigation.'" Oregon, 913 F.2d at 589 (quoting United States v. Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989)). In other words, the timeliness clock starts ticking from the poinat t which the intervenor has actualor constructive knowledge that his interests are in jeopar dy and that they are not being adequately represented. Officers for Justice v. Civil Serv. Comm'n of San Francisco, 934 F.2d 1092, 1096 (9th Cir. 1991). The Court addresses each Movant's reasons for its delay in turn.
a. UCLA
"UCLA obtained a copy of the [C]omplaint on June 9, 2011, one day after the action was filed." (UCLA Mot. 5; see also Compl.) At that time, UCLA recognized that an adverse outcome in the instant action could impact its use of the Stadium. (Reply 1; Decl. of Mark Rosenbaum in Supp. of Pls.' Opp'n ("Rosenbaum Decl.") ¶ 3, ECF No. 152; Opp'n 6 & n.5.) After reading the Complaint, UCLA's Vice Chancello r for Legal Affairs concluded that "the action did not pose a clear risk to UCLA's interests." (UCLA Mot. 5. ) The APA claim that ultimately led to the invalidation of the Disputed Agreements was added by Plaintiffs in their FAC, which was filed on
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DATE: October 21, 2013

August 12, 2011. (Compare Compl., with FAC.) UCLA contends that it "reasonably concluded that the fiduciary duty claims in ht e original [C]omplaint posed little rsi k to its interests . . . [and] did not learn until August 30, 2013—after the Court's [August 29 J]udgment was entered—that [P]laintiffs had asserted a new claim under the APA." (UCLA Mot. 11.) UCLA's decision not to intervene in and to cease monitoring the action may have been reasonable from a cost-benefit perspective. It was unreasonable, however, to movefor intervention two years after it had learned that the UCLA Agreement was at issue in the case.
The fact that UCLA knew that there was a pending action that might affect its use of the Stadium is precisely the sort of constructive notice that triggers the timeliness clock. Toxic Substances, 309 F.3d at 1120 ("While [defendants] were not ceratin that the consent decree would be adverse to their interests, they had reason to know that negotiations might produce a settlement decree to their detriment."); R&G Mortg. , 584 F.3d at 8 ("Perfect knowl edge of the particulars of the pending lit igation is not essential to start t he clock running."). Moreover, UCLA should have known much earlier that Plaintiffs had amended their Complaint to include the APA claim by regularly monitoring the status of the litigation, see Alisal, 370 F.3d at 923 (concluding that filing of a third amended complaint was enough to give rise to constructive notice), something UCLA did intermittently throughout the lawsuit, (see Rosenbaum Decl. ¶¶ 3-5). UCLA's delay appears to be the product of its failure to considetrhe possibility of an amended complaint when assessing the costs of intervening in and closely monitoring the lawsuit. Cf. Alisal, 370 F.3d at 923-24 ("An applicant's desire to save costs by waiting to intervene until a late stage in the litigation is not a valid justification for delay."). If this was UCL A's strategy and if it had been correct in its assessment, UCLA would have saved the cost of litgi ation without detriment to its interests. This matter did not come out UCLA's way, however, and UCLA must now absorb the risk it took by allowing the Government to represent its interestsand bear the cost of litigaiton alone. If the Court were to permit UCLA to intervene and relitigate the case after it has avoidedthe cost of two years of litigation, the Court would essentially convert UCLA's apparent decision to sit on the sidelines into a riskless proposition. Such a policy would encourage other would-be intervenors to await judgment in cases potentially affecting their interests and then to request a d" o over" from the trial court in the event of an adversejudgment. Allowing UCLA to intervene at this point would create the perverse incentive that proper application of the third timeliness factor is designed to avoid. Id. at 924.
Nor can UCLA claim that the G overnment did not adequately represent its interests in the proceedings before this Court. (UCLA Mot. 20-21; Reply 5.) The Government's position on the validity of the Disputed Agreements has not changed over the courseof the lawsuit. Any alleged divergence in interest existed from the outset of the suit, and UCLA knew or should have known about this divergence when it made its decision not to intervene. See Alisal, 370 F.3d at 923; LULAC, 131 F.3d at 1307. Allowing the Government to bear the burden of litigation and to represent Movants' interests was part of UCLA's apparent risk assessment analysis. See Alisal, 370 F.3d at 923. Moreover, the Court is unper suaded that Defendants' interests diverged from UCLA's during the proceedings before it. UCLA aettmpts to distinguish the Government's interests
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DATE: October 21, 2013

from its own based on the fact that the Government tried todefend all of the Disputed Agreements instead of focusing on the UCLA Agreement. (See UCLA Mot. 14-15; Opp'n 18-19.) However, the Government is in the best position to justify its decision-making based on the administrative record, and this was the only question necessary tdoetermine the vaildity of the UCLA Agreement. (See supra note 3.)
Furthermore, the extensive news coverage suror unding the action supports the Court's finding that UCLA had notice well before the Court issued its August 29 Judgment. NAACP, 413 U.S. at 366 & n.19 (listing a single full-page articel in the New York Times as a sgi nificant factor in finding that party had notice). During the two-year life of the action there were numerous news publications discussing the lawsuit in general and the APA claim specifically. 4 UCLA argues t hat " vague statements in news reports" were insufficient to provide it with actual or constructive notice that the UCLA Agreement was injeopardy. (Reply 1.) The publicaiotns in question were neither vague nor insufficient. For exam ple, an articl e in the Santa Monica Mirror , published in March 2012, specifically mentions Plaintiffs' APA claim.5 Another article, broadcast on National Public Radio's Morning Edition in September 2012, explains thatone of Plaintiffs' arguments against the validity of the Disputed Agreements was t hat the DVA was "sharing" rat her than "leasing" the land at issue.6 Combined with UCLA's knowledge that the UCLA Agreement was at issue in the lawsuit, there is more t han enough evidence to find that UCLA knew or should have known that its interests could be adversely affected by the cl aims raised in the Complaint or by any amended pleading thereafter. UCLA has failed to "convincinglyexplain" its delay inmoving for intervention. Accordingly, the Court DENIES UCLA's Motion for the purpose of participating in further proceedings before this Court.
/// ///
b. Brentwood
Brentwood admits that it "was aware of this action prior to the [August 29 Judgment]." (Decl. of Michael Riera, PhD in Supp. of Brentwood Mot. ¶2.) Although Brentwood does not state exactly when it became of aware ofthe instant action, a news articlein the Los Angeles Times, published

4 The Court takes judicial notice of each of the news public ations cited in Plaintiffs' Opposition. (See Opp'n 1, 4-6 & n.1-5.)

5 Terence Lyons, Veterans Suit A gainst West L.A. VA Will Go Forward , Santa Monica

Mirror, M ar. 20, 2012,

available at http://www.smmirror.com/articles/News/

Veterans-Suit-Against- West-LA-VA-Will-Go-Forward/34309.

6 Ina Jaffe, Los Angeles VA Has Made Millions on Rental Deals , National Public Radio, Sept. 10, 2012, available at http://www.npr.org/2012/09/10/160736598/los-angeles -va-has-made-millions-on-rental-deals (last visited Oct. 10, 2013).

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on June 9, 2011, reported ht at Plaintiffs were specificallychallenging Brentwood's use of the WLA Campus as the site for the Complex7. This coverage continued intermittently throughout the next two years. (See Opp'n 4-6.) Thus, the Court finds thatBrentwood knew, or at least should have known, that the validity of theBrentwood Agreement was in jeopardy months, if not years, before the Court issued its August 29 Judgment.
Brentwood argues that its delay in moving for intervention was reasonable because "Brentwood does not employ in-house counsel, was not named asa party, and did not understand that it could intervene in this litigation until after the [August29 Judgment]." (BrentwoodMot. 3.) Brentwood's argument justifying delay on the basis that it was not named a party is unc onvincing; had Brentwood been named a party,it would not have needed to file a Motion to Intervene. The point is, therefore, moot. The fact that Brentwood does not employ in-house counsel is lik ewise no excuse, since Brentwood was on notice about the ri sk t hat the instant action posed to its Agreement with the DVA. Many entities do not retain in-house counsel and are unschooled in the law. While a lack of legal knowledge may justify some delay in asserting one's interests, it does not absolve an entity from doing so within a reasonable time after it knew or should have known that its inter ests m ight be adversely affected. See R&G Mortg. , 584 F.3d at 9 (holding that knowing and failing to act for three months was unreasonable).
The Court notes that Brentwood claims only that it "does not employ in-house counsel," not that it never sought legal advice concerning the lawsuit nor had an attorney review the matter. (See Brentwood Mot. 3.) Assuming that Brentwood did not obtain any form of legal advice until after the Court's August 29 Judgment, Brentwood offers no explanation for why it was incapable of doing so. Brentwood should have sought legal adv ice and int ervened before its interests had already been adversely im pacted. See Toxic Substances , 309 F.3d at 1120 (holding that knowledge of ongoing negotiations between parties was enough to know that those negotiations could lead to consent decree unfavorable to intervenor); Oregon, 913 F.2d at 589 ( holding that even intentional deception is notenough, standing alone, to excusedelay when a party had other reason to know that its interests might be adverselyaffected). The fact that it sought legal advice at all indicates that it had the capacity to do so before the Court rendered final judgment. Thus, Brentwood's plea of ignorance is not a sufficient r eason for its lengthy delay. Accordingly, the Court finds that all three timeliness factors weigh against Brentwood and DENIES its Motion to Intervene for further proceedings before this Court.
B. Intervention for Limited Purpose of Appeal

7 Martha Groves, Suit Alleges Misuse of Los Angeles VA Facility , L.A. Times, June 9, 2011, available at http://articles.latimes.com/2011/jun/09/local/la-me-aclu-veterans-lawsuit20110609.
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Movants request, in the alternative,that they be allowed to intervenesolely for the purpose of filing an appeal. (UCLA Mot. 1; Brentwood Mot. 1.) "Intervention should be allowed even after a final judgment where it is necessary to preserve some right whic h cannot otherwise be protected." Pellegrino v. Nesbit, 203 F.2d 463, 465 (9th Cir. 1953). Theability to appeal a judgment adverse to t he movant's interests is just such a right. Id. Post-judgment intervention for the limit ed purpose of appeal is appropriate where the movant acts promptly once it becomes clear that the party representing it s int erests in t he litigation has elected not to appeal. United Airlines v. McDonald, 432 U.S. 385, 392-96 (1977). In addition to the four elements of Rule 24(a), a party moving to intervene for the purpose of appeal must demonstrate that it has Article III standing to pursue the suit in the absence of the party whom it intends to replace. Yniguez v. Ariz., 939 F.2d 727, 731 (9th Cir. 1991).
1. Article III Standing
Movants "can meet the Article III 'sat nding criteria by alleging a threat of particularized injury from the order they seek to reverse that would be avoided or redressed if their appeal succeeds.'" Id. at 731-32 (quoting Legal Aid Soc'y v. Brennan , 608 F.2d 1319, 1328 (9th Cir. 1 979)). If Defendants do not appeal and the Court's Summary Judgment Order is enforced, the UCLA and Brentwood Agreements will remain legally void and Movants will be prevented from using the Stadium and the Complex until and unless the DVA obtains statutory approval from Congress. (See Summ. J. Order 4 n.3.) Movants could avoid this particularized injury if they succeed in an appeal by demonstrating that entering into the Disputed Agreement s did not exceed the DVA's statutory author ity under 38 U.S.C. §§ 8151-8153. Thus, Movants' interest in preserving the validity of the UCLA and BrentwoodAgreements by a successful appeapl rovides them with Article III standing under the test set forth in Yniguez.
2. Timeliness
The Court's calculus changes now that it considers whether the Motions are timely for the limited purpose of appeal rather than for the purpose of further district court proceedings. The potential disruption to the proceedings is less dramatic when intervention o ccurs at "a new stage in the action." Oregon, 913 F.2d at 588. This is especially tr ue where the intervenor has an "interest in a specific phase of a proceeding." Alisal, 370 F.3d at 921. An appeal is a new stage because it does not require reopening or relitigating the issues reso lved before this Court. Although Movants would be seeking to have the Court's Summary Judgment Order reversed on appeal, they would be compelled to do so based on the recordas it stands today. Inother words, Movants cannot amend the record through relitigation after not participating in its development.
In addition, Movants will have a special in terest in filing an appeal if the Government does not continue to prosecute the action. The Government has adequately represented the interests of Movants in the proceedings before this Cour t through its vigorous defense of the Dis puted Agreements. However, Movants have recently beengiven reason to believe that the Government
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may not continue to represent their interestsby appealing the Court's Summary Judgment Order. (See Decl. of George M. Soneff in Supp. of UCLAMot. ¶ 4.) Based on the Government's vigorous prosecution of the case, Movants could not have anticipated the Government's apparent reluctance to appeal. See McDonald, 432 U.S. at 394. Furthermore, Movants acted in a timely manner once they learned that the Government's interests might diverge from their own. The Motions were filed well within ht e sixty-day period permitted for filing an appeal in an action where a government of ficer is s ued in his official capacity. Fed. R. App. P. 4(a)(1)(B); see also McDonald, 432 U.S. at 392. Thus, appellate argum ents would proceed apace if Movants are permitted to intervene for that limited purpose.
An appeal will prejudice Plaintiffsby delaying the enforcement ofthe August 29 Judgment, but the prejudice is less than it would have been had Mo vants been allowed to intervene for further proceedings before this Court. While Plaintiffscould not have foreseen the possibility of Movants intervening after a final judgment and relitigating settled issues, the possibility of an appeal was always a real one in such a hotly contested case. Cf. McDonald, 432 U.S. at 394-95 (explaining that the defendant was not prejudiced because it was "on notice" that intervenor would have an interest in appealing denial of class certification). Thus, the delayassociated with an appeal is not unexpected or unusual enough to shift the scales of tmi eliness in Plaintiffs' favor where the case is enteri ng a new phase and where Movants coul d not have know n unti l recentl y that the Government might cease prosecuting the action. The Court finds that the Motions are timely for the purpose of appeal.
3. Impair or Impede Ability to Protect a "Significantly Protectable" Interest
"Contract rights are traditionally protectable interests." Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001). The August 29 Judgment rendered the UCLA and Brentwood Agreements void. Unless theCourt's Judgment is appealed and reversed, Movants' will no longer be able to use of the Stadium and the Complex pursuant t o t heir c ontracts with the DVA. Movants, therefore, have a signi ficantly protectable interest in the validity of the UCLA and Brentwood Agreements.
Furthermore, Movants' ability to protect their interest in the validity of the UCLA and Brentwood Agreements would be impaired were intervention denied and should Defendants choose not to appeal. "[I]f an absentee would be substantially affecetd in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene." Berg, 268 F.3d at 822 (quoting Fed. R. Civ. P. 24 advisory committee's noet). The invalidation of an agreement has both a legal and practical effect on the i nterests of parti es to the agreement. Id. In this case, the practical result of the UCL A and Brentwood Agreements being deem ed invalid is that UCLA's baseball team and Brentwood's student-athletes will be displaced. At this stage in the litigation, Movants can only prevent an adverse outcomehtough a successful appeal. If Defendants decline

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to appeal the Court's Summary Judgment Order, Mo vants' opportunity to ensure the continued use of the Stadium and the Complex for the duration of the Agreements will evaporate.8
4. Inadequate Representation
Three factors are relevant when consider ing whether a party adequately r epresents an intervenor's interests:
(1) whether the intere st of a pr esent party is such that it will undoubtedly make all the intervenor's argument s; (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect.
Nw. Forest Res. Council v. Glickm an, 82 F.3d 825, 838 (9th Cir. 1996) . " In assessing the adequacy of representation, the focus should be on the 'subj ect of the action,' not just the particular issues before the court at the time of the motion." Berg, 268 F.3d 810 at 823 (quoting Sagebrush Rebellion, Inc. v. Watt , 713 F.2d 525, 528 (9th Cir. 1983 )). Although t he burden of proving inadequate representation rests on the intervenor, that burden is "minimal." Id. at 822.
A successful appeal is Movants' only chance tocontinue operating the Stadium and the Complex under the terms of the inva lidated UCLA and Brentwood Agreem ents. Movants represent, however, that Defendants will not disclose whether they intend to appeal the Court's Summary Judgment Order. (UCLA Mot. 13.) The Government's refusal to appeal would signal that it is no longer "capable and willing" to make any, let alone "all," of the arguments that Movants would make in defense of the UCLA and Brentwood Agr eements. Alt hough the Government is wellsituated to defend its decision-making against Plaintiffs' APA claim on appeal, it would cease to adequately represent Movants' interests should it decline to do so. Pellegrino, 203 F.2d at 465.
Movants were right to bring the Government's hesitation to t he Cour t's attention in a timely manner. A successful appeal is Movants' only chance to continue using t he Stadium and the Complex under the terms of the invalidated Agerements, and the Government cannot ensure that these interests are adequately represented. Therefore, the Court GRANTS the instant Motions for the sole purpose of appeal.
C. UCLA's Ex Parte Application

8 The Court takes no positionon whether Movants have recourse to any legal or equitable remedy short of the continued use of t he St adium and the Complex if the Summary Judgment Order is affirmed.
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UCLA's Application requesting an extension of the deadline for filing an appeal is DENIED AS MOOT because the Court grants the Motions for the limited purpose appeal before the applicable filing deadline has elapsed. UCLA and Brentwood haveuntil October 28, 2013,to file an appeal. See Fed. R. App. P. 4(a)(1)(B).
III. RULING
For the foregoing reasons, the Court GRANTS IN PART AND DE NIES IN PART UCLA and Brentwood's Motions. The CourtORDERS that UCLA and Brentwood are permitted to intervene solely for the purpose of appealing the Cour t's Summary Judgment Order and Judgment, both issued on August 29, 2013. The Court DENIES AS MOOT UCLA's Application.
IT IS SO ORDERED.

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

TITLE:

Gregory Valentini, et al. v. Eric Shinseki, et al.

======================================================================== PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz Courtroom Clerk

Not present Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

======================================================================== PROCEEDINGS: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Docket No. 32]
This matter is before the Court on Defendants Eric Shinseki and Donna M. Beiter's (collectively, "Defendants" or "Government") Motion to Dismiss ("Motion"), filed on O ctober 7, 2011. On October 21, 2011, Plaintiffs fil ed their Opposition to whic h t he Government filed its Reply on October 25, 2011. The Court received amicus curiae briefs filed by Metabolic Studio, LLC, and the City of Santa Monica in opposition to the Government's Motion to Dismiss.
The Court found this matter suitable for disposiotin without oral argument and vacated the hearing scheduled for December 5, 2011. See Fed. R. CivP. . 78(b). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the Government's Motion to Dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
The First Amended Complaint ("FAC") sets forth thefollowing allegations. The individual Plaintiffs in this case are severely disabled veterans with mental disabilities, brain injuries, or both.1 (See FAC ¶¶ 8-17, ECF No. 24.) As a result of their disabilities, they are homeless and cannot access necessary medical and mental health treatment. (FAC ¶¶ 8-17.)
On June 8, 2011, Plaintiffs filed a lawsuit agai nst the Government. Defendant Eric Shinseki ("Shinseki") is the Secretary of the United States Department of Veterans Affairs ("DVA"), whose official duties include executionand administration of all lawsand programs governed by the DVA. (FAC ¶¶ 47, 48.) Shinseki is responsible for ensuring that the DVA complies with contracts and land grants. (FAC ¶ 48.) Defendant Donna M. Beit er ("Beiter") is the Direc tor of the Veterans

1 The individual Plaintiffs are joined by t he Vietnam Veterans of America ("VVA"), which asserts associational standing on behalf of its members. (FAC ¶ 45; Opp'n 1 n.1, ECF No. 35.)
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Affairs Greater Los Angeles ("VA GLA") Health care Sy stem, whose official duties include supervising daily operations and services of all programs oper ated by the West Los Angeles Campus ("WLA Campus"). (FAC ¶¶ 49, 50.)
Plaintiffs assert six claims: (1)facial discrimination in violationof section 504 ofthe Rehabilitation Act; (2) denial of meaningful access in violation of section 504 ofthe Rehabilitation Act; (3) breach of duty as trustee of a charitabl e trust; (4) accounting for profits; (5) breach of fiduciary duty as trustee of a charitable trust; and(6) improper land deals executed inviolation of the Administrative Procedure Act ("APA"). (See generally FAC.)
A. Overview of the Veterans' Benefits Program
In 1865, Congress created the Natoi nal Home for Disabled VolunteerSoldiers ("National Home"). (FAC ¶ 85; Act of Mar. 3, 1965, ch. 91, 13 Sta t. 509.) The National Home creat ed a series of branch homes for veterans throughout the country. (FAC ¶ 85.) In addition to housing, the National Home also provided the veteran residents food, medical care, recreation activities, and employment opportunities. (FAC¶ 85.) In 1887, Congress authoriezd the National Home's Board of Governors to establish a branch home west of the Rocky Mountains. (FAC ¶ 88.) In 1888, the Pacific Branch of the National Home ("Pacicfi Branch Home") opened and housed veterans. (FAC ¶ 90.) In 1930, Congress consolidated the Nati onal Home with other veterans' programs and established the Veterans Administration (" VA"). (FAC ¶ 93; Exec. Order No. 5398 (July 21, 1930).) Accordingly, ht e branch homes were transferred tothe VA. (FAC ¶ 93.) In 1958, Congress repealed the statutory authorization for the National Home. See Act of Sept. 2, 1958, Pub. L. No. 85-857, 72 Stat. 1105 (1958).
In 1989, the DVA, VA's successor-in-interest, was established as a cabinet-level agency. (FAC ¶ 94.) The DVA is currently divdied into three administrations: theVeterans Health Administration ("VHA"); the Veterans BenefitsAdministration ("VBA"); and the National Cemetery Administration ("NCA"). (FAC ¶ 73; 38 U.S.C. § 301(c).) The VHA is obligaet d to provide veterans with medical and hospital services. (FAC ¶ 73; 38 U.S.C. § 7301(b).) To q ualify for VHA benefits, a person must have performed active duty in the military and been "discharged or released" from service "under conditions other than dishonorable." (FAC ¶ 74; 38 U.S.C. § 101(2).)
To r eceive t he "medical benefit s package," a veteran must be enrolled in the VA health-care system. See 38 C.F.R. § 17.36(a)(1). Veterans who qualify for VHA benefits are placed into one of eight priority groups . See 38 C.F.R. § 17.36(b). The priori ty groups are established by the DVA's regulat ions to determine a veteran's e ligibility for benefits. (FAC ¶ 75; 38 C.F.R. § 17.36(b).) Depending on funding, the DVA may prioritize thehigher priority groups and provide VHA benefits only to veterans in those groups. (FAC ¶ 75.)
Eligible veterans receive VHAbenefits through twenty-one VeteransIntegrated Services Networks ("VISN") around the country. (FAC ¶ 79.) One of the VISNs is the VA Desert Pacific Health
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Network, which provides services in Southern California through the VA GLA. (FAC ¶ 80.) The VA GLA provides health-care services to veterans at its WLA Campus. (FAC ¶ 83.) The VHA benefits package includes: outpatientmedical, surgical, and mentalhealth care; inpatient hospital, medical, surgical, and mental health care; prescription drugs coverage; emergency care; substance abuse treatment; and other services. (FAC ¶ 78; 38 C.F.R. § 17.38(a).)
In addition to VHA's benefits program, the DVA must provide hospitaland medical services "to any veteran for a service-connected disability." 38 U.S.C. § 1710(a)(1)(A).Veterans who meet certain requirements must be provided hospital care and medical services, regardless of whether the veteran is enrolled in the VHA benefits program. (FAC ¶ 77; 38 C.F.R. § 17.37(a).)
B. History of the WLA Campus
In 1888, United States SenatorJohn P. Jones and Arcadia B. deBaker donated land - what is now the WLA Campus - for the purpose of establishing and permanently maintaining a branch home for disabled war veterans. (FAC ¶ 84.) The deed (the "1888 Deed") conveyed 300 acres to the National Home. (FAC ¶ 89.) The 1888 Deed states:
And whereas, the parties hereto of the first part [grantors] in consideration that the party hereto of the second part [National Home] should locate, establish, construct, and permanently maintain a branch of said National Home for Disabled Volunteer Soldiers on a site to be selected by its Board of Managers . . . . Now therefore, in consideration of the premises and of the l ocation, . . . ow ners of the said Rancho San Vicente y Santa Monica, by suchlocation have given and granted and by these presents do give and grant .. . all the following descrbi ed land and premises, situate lying and being in the County of Los Angeles,State of California . . . for the purpose of such branch Home for Disabled Volunteer Soldiers to be thereo n so located, established, constructed and permanently maintained.
(FAC ¶ 89; Exs. 1, 2. ) I n 1899 and 1921, successors to Senator Jones and Mrs. de Baker conveyed additional land to the National Home. (FAC ¶ 89.) The entire WLA Campus conveyed by the 1888 Deed and two later deeds is approximately 387 acres. (FAC ¶ 6.)
For about eighty years, the VA oper ated the Pacific Branch Home at the WLA Campus, which provided a permanent home for disabled veterans as anticipated by the grantors of the 1888 Deed. (FAC ¶ 6.) During the 1960s and 1970s, the VA ceased accepting new residents at the WLA Cam pus. (FAC ¶ 94.) Currently, ther e are approximately 104 buildings on the WLA Campus. (FAC ¶ 95.) Many of the buildingsthat were once dedicated to permanent housing are now repurposed or have fallen into disuse. (FAC ¶¶ 7, 95.)
The WLA Campus offers care in t he f ollowing areas: medicine, surgery, psychiatry, physical medicine and rehabilitation, neurology, oncology, dentistry, geriatrics, and extended care. (FAC
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¶ 98.) Additionally, the WLA Campus offersapproximately 1,500 beds, and more than 1,150 beds are dedicated to inpatient hospital care or skillednursing care for elderly veterans. (FAC ¶ 105.) These beds are not available as permanent suppotirve housing and are used as temporary shelter for veterans with limitations on eligibility. (FAC¶ 105.) However, there is no permanent housing available to disabled veterans on the WLA Campus. (FAC ¶ 95.)
In addition to the WLA Campus providing health-care services for veterans, the campus is also used for private activities. Many commercial and other non-DVA programs operate on the WLA Campus pursuant to leases, memoranda of understanding, revocable licenses, or enhanced sharing agreements. (FAC ¶¶ 24, 96.) Currenlyt , there are twenty-one land-use agreements with eighteen different partners for the WLA Campus. (Dep't of Veterans Affairs, West Los Angeles VA Medical Center, Veterans Program Enhancement Act of 1998 (VPEA) Master Plan (2011) ("Master Plan").) The following are land-ues agreements on the WLA Campus: Brentwood School leases twenty acres of land; Richmark Entert ainment operates the Wadsworth and Brentwood theaters; Sodexho Marriot Laundry Services operates an old laundry facility in Building 224; South Coast AQMD conducts studies on pollution levels ouot f a temporary trailer;TCM, LLC utilizes 1.5 acres of land at the Veterans Garden and adjacenptarking areas for a community farmer's market; Twentieth Century Fox has an agreement to build a temporary butler building for storage in the industrial area of the campus; University of California, Los Angeles utilizes the baseball stadium for their baseball program; Wesst ide Breakers Soccer Club and Galaxy Alliance Soccer have nonexclusive use of t he Macarthur Field and parki ng lot thirty-eight; West Side, LLC operates vehicular parking areas throughout the WLA Campus; and movie and television production companies use portions of the WLA Campus for short-term, non-recurring filming projects. (FAC ¶ 24; see Master Plan at 36-37.) Due to these land-use deals, veterans have limited access to, or are prohibited from accessing, 110 out of the 387 acres of the WLA Campus. (FAC ¶ 96.)
C. Housing Services at the WLA Campus
VA GLA provides services for veterans at the WLA Campus, three ambulatory clinics, and nine community clinics located throughout its service area. (FAC ¶ 114.) Although the VA GLA offers medical services at these facilities, it does not offer permanent supportive housing to disabled veterans at the WLA Campus. (FAC ¶ 104.) However, temporary shelter services are offered through the Domiciliary Residential Rehabilitation and Treatment Program ("Domiciliary"). (FAC ¶ 104.) M any of the beds at the Domiciliary are dedicated to programs focused on substance abuse recovery, not serious mental health iss ues. (FAC ¶ 104.) The Domiciliary r efuses admission to veterans who have serious mental disabilities involving psychosis or who take psychotropic medication. (FAC ¶ 104.) The VA GLA off ers beds, including the beds at the Domiciliary, as temporary shelter with limitations on eligibility that often exclude homeless veterans with serious disabilities. (FAC ¶ 105.)
In addition to the programs operated by the VA GLA, several residential programs are operated by third parties on the WLA Campus. These third-party programs are not designed to meet the
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needs of veterans with severe ment al disabilities or brain injuri es. (FAC ¶¶ 106, 110.) Lastly, veterans have access to additional transitionalhousing beds through VA GLA's contract with offsite providers and to a permanent housing thorugh VA GLA's housing voucher program, but these beds are not located near the WLA Campus or other VA GLA facilities where VHA benefits are offered. (FAC ¶¶ 113-14.)
D. Plaintiffs' Claims
Plaintiffs' claims fall into three categories:
(1) claims for violations of the Rehabilitation Act (claims 1 and 2); (2) claims relat ed t o t he charitable trust, incl uding breach of fiduciary duty and an
accounting (claims 3, 4, and 5); and (3) a claim for violations of the APA (claim 6).
First, Plaintiffs bring two claims under the Rehab ilitation Act. (FAC ¶¶ 116, 117.) In support of Plaintiffs' facial discrimination cal im, Plaintiffs assert that theGovernment refused to provide them admission to housing programs or services that are necessary for treatment of severe mental disabilities. (FAC ¶ 116.) According to Plaintiffs, the Government facially discriminates against Plaintiffs because of their severe mental disabilities.(FAC ¶ 116.) Additionlaly, Plaintiffs posit that the Government denied Plaintif fs m eaningful access to services, including the reasonable accommodation of permanent supportive housing. (FAC ¶ 117.) Plaint iffs pray the Court to declare that: the design and implementation of the VHA benefits program within VA GLA facially discriminates against Plaintiffs solely by reasonof their disability; and the Government is denying Plaintiffs meaningful access to the VHA benefits o ffered by the VA GLA solely by virtue of their disability. (FAC Req. for Re lief.) Plaintiffs seek an injunction directing that the Government provide Plaintiffs permanent suppor tive hous ing as a reasonable accommodation for their disabilities. (FAC Req. for Relief.)
Second, Plaintiffs assert thatthe 1888 Deed created a charitable turst whereby the DVA holds the WLA Campus in trust for disabled veterans asthe intended beneficiaries. (FAC ¶ 301.) Plaintiffs allege that the Government's authorization of uses that do not directly contribute to the operation of a home for disabled veterans is a breach of the charitable trust. (FAC ¶ 302.) Plaintiffs pray the Court to declare that: the G overnment's acceptance of the land transferred under the 1888 Deed created a charitable trust; and the Government has breached and continues to breach its fiduciary duties as trus tees of t he c haritable tr ust. (FAC Req. for Relief.) Plaintiffs seek an injunction mandating that the Government faithfully execute its obligations as trustee and use the WLA Campus solely for purposes directly rela ted to providing suppor tive housing for disabled veterans, or, in the alternative,a court order mandating that theGovernment refrain from allowing the current use of the WLA Campus for purposes not related to supportive housing for disabled veterans to c ontinue. (FAC Req. for Relief.) Plaintiffs also seek an injunction requiring an accounting of profits of all money received by the DVA or VA GLA from land-use agreements for
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land that is used for any purposenot directly related to providing supportive housing for disabled veterans and deposit all such money in an accountto be used solely for the purpose of providing supportive housing and related services. (FAC Req. for Relief.)
Third, Plaintiffs assert that land deals entered into by VA GLA were improperly executed under the Veterans' Benefits Act in violation of the APA. (FAC ¶ 312.) Plaintiffs allege that they have suffered procedural and substantive injuries. (FAC ¶ 313.) Plaintiffsseek an injunction prohibiting VA GLA from executing under 38 U. S.C. §§ 8151- 8153 (the statutes that authorize enhanced sharing agreements) any agreements that do not concern the sharing of health-care resources. (FAC Req. for Relief.) Plaintiffs pray the Courtto declare that the Government violated 38 U.S.C. §§ 8151-8153 and 8161-8169 by enteri ng int o a number of enhanced sharing agreements unauthorized by any law or regulation. (FAC Req. for Relief.)
E. Procedural Background
On October 7, 2011, the Governm ent f iled its Motion to Dismiss. ( See generally Mot., ECF No. 32.) First, the Gove rnment argues that Plaintiffs' APA claim should be dismissed because Plaintiffs: (1) lack standing; and (2) fa il to state a legally viable claim. 2 (See generally Mot.) Second, the Government asserts four arguments to dismiss Plaintiffs' charitable trust claims: (1) lack of standing; (2) sovereign immunity; (3) lack of subject matter jurisdiction; and (4) failure to state a claim for breach of fiduciary duty. S(ee generally Mot.) Lastly, the Government asserts that Plaintiffs' Rehabilitation Act claims should be dismissed because: (1) the Veterans' Judicial Review Act bars jurisdiction oversection 504 of the Rehabilitation Acta; nd (2) Plaintiffs fail to state a viable facial discrimination claim. (See generally Mot.)
On October 21, 2011, Plaintiffs filed their Opposition. (See generally Opp'n, ECF No. 35.) The Court received amicus curiae briefs filed by Metabolic Studio, LLC ("Metabolic Studio") and the City of Sant a Monica in opposition to the Government's Motion to Dismiss. 3 (See generally
2 The Government's Motion has a section enitled "Counts One, Three, Four, Five, and Six Fail to State Legally Viable Claims." (Mot. 15.)Under this section, the Government argues that Plaintiffs have no viable facial Rehabilitation Act claim (claim one); and Plaintiffs have not stated a claim for breach of fiduciary duty (implicating claims three, four, and five). (Mot. 15.) However, in that section, the Government failed to address whether Plaintiffs have a viable APA claim (claim six). (Mot. 15.) The Government only argues, in another section, that Plaintiffs' APA claim fails fo r lack of standing. (Mot . 4 .) Be cause the Government did not sufficiently argue that Pl aintiffs failed to state a legally viable APA claim, the Government relies only on the argum ent that Plaintiffs' APA c laim should be dismissed because Plaintiffs lack standing.
3 On October 25, 2011, the Court permitt ed but did not require Defendants to submit a response to the Metabolic St udio's amicus curiae brief, which was due on
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Metabolic Studio Amicus Curiae Br., ECF No. 44; City of Santa Monica Amicus Curiae Br., ECF No. 41.) On O ctober 25, 2011, the Government filed a Reply to Plaintiffs' Opposition. ( See generally Reply, ECF No. 40.)
On October 27, 2011, the Court determined that it would befit from additional briefing pertaining specifically to argument about the creation of a charitable trust. (Oct. 27th Order Req. Additional Br'g, ECF No. 43.) Both parties submitted Supplemental Briefs, to which the opposing party replied. On November 18, 2011, the Court notified the parties that the Ninth Circuit withdrew its opinion for Veterans for Common Sense v. Shinseki, 644 F.3d 835 (9th Cir. 2011) and decided to rehear the appeal en banc. (Nov. 18th Order Req. Additional Br'g, ECF No. 56.) Because both Plaintiffs and the Government cited Veterans for Com mon Sense in their briefs regarding jurisdiction for the Rehabilitation Act claims, the Court allowed additional briefing to address the jurisdictional question for the Rehabilitation Act claims. (Nov. 18th Order Req. Additional Br'g.) On November 23, 2011, Plaintiffs filed their Supplemental Brief (Pls.' Suppl.Br. in Supp. of Opp'n, ECF No. 57), to which the Government replied on December 1, 2011 (Defs.' Suppl. Br. in Supp. of Mot., ECF No.59).
II. DISCUSSION
A. Legal Standard
A motion to dismiss pursuant to Rule12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Ileto v. Glock, Inc. , 349 F.3d 1191, 1199-1200 (9th Cir. 2003). In evaluating a motion to dismiss, a court accepts the plaintiff's material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Dismissal is proper if the complaint lacks a "cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plai n statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see Ileto, 349 F.3d at 1200. "While legal conclusions c an provide the complaint's framework, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009). To plead sufficiently, a plaintiff must proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 547 (2007). A claim is facially plausible when "the plaintiff pleads factual c ontent that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Rule 8(a)(2) requires that ht e allegations in the complaint "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2).

October 28, 2011. Defendants did not submit such a response.
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B. Plaintiffs' APA Claim

The Government has entered into various land-use agreements at the WLACampus. (FAC ¶ 24; Master Plan at 36-37.) The law provides three mechanisms ht e DVA may use to enter into leases or other agreements related to its property: (1) enhanced sharing agreements ("ESAs") under 38 U.S.C. §§ 8151-53; (2) enhanc ed us e leases ("EULs") under 38 U.S.C. §§ 8161-69; and (3) outleases under 38 U.S.C. §§ 8122 and 2412. T he parties agree that outleases are not at issue in this case. (Mot. 4-6; Opp'n 7.)

In 2008, Congress prohibited the DVA from ent ering into EULs on the WLA Campus unless specifically authorized by law. (Mot. 4;see 38 U.S.C. § 8162(c)(1) ("[T]he entering into an [EUL] covering any land or improvementdescribed in . . . section 224(a)of the Military Construction and Veterans Affairs and Related Agencies Appropr iations Act, 2008 shall be considered to be prohibited by such sections unless specifically authorized by law.").) Under section 224(a), "[t]he Secretary of Veterans Affairs m ay not declare as excess to the needs to the Department of Veterans Affairs, or otherwise take any action to exchange, trade, auction, transfer, or otherwise dispose of, or reduce the acreage of, Federal land and improvements at the Department of Veterans Affairs [WLA Campus]." Act of De c. 26, 2007, Pub. L. No . 110-161, 121 Stat. 1844. Thus, as of 2008, the only avenues available for the DVA to enter into land-use agreements for the land on the WLA Campus (unless specifically authorized by law) were ESAs or outleases.

In their APA claim, Plaintiffs allege that theDVA improperly executed its land-use deals as ESAs, even though ESAs only authorize land-use deals pertaining to sharing of health-care resources4. (FAC ¶ 312.) Plaintiffs assertthat many of the DVA's ESAs have little or no connection to healthcare resources (FAC ¶ 272), and ther efore e ntering into these land-use deals as ESAs was unlawful.

According to Plaintiffs, the DVA was requir ed (prior t o 2008) to ex ecute those land-use

agreements unrelated to sharing health-care resources as EULs (which are not restricted only to

deals pertaining to sharing of health-care resour ces), rather than ESAs (which are so limited).

(FAC ¶ 312.) This distinction is r elevant because the procedure for entering an EUL mandates

additional procedural requirements with which the DVA did not co mply. (FAC ¶ 270. ) Under

EULs, the DVA must determine that the EULs "provide appropriate space for an ac

tivity

contributing to the mission of [theDVA]" or the proceeds from EULsare used in a way that "would

result in a demonstrable improvement of

serv ices to eligible veterans." 38 U.S.C.

4 The term "health-care resource" includes "hospital care and medical services (as those terms are defined in section 1701 of this title), services under sections 1782 and 1783 of this title, any other health-care service, and any health-care support or adminis trative resource." 38 U.S.C. § 8152(1).
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§ 8162(a)(2)(A)(I), (a)(2)(B). If the DVA designates a property to be leased pursuant to an EUL, the DVA is requir ed t o pr ovide a public hearing and public notice. 38 U.S.C. § 8163(a)-(c). Plaintiffs claim that after 2008the DVA was not authorized to enetr land-use agreements unrelated to sharing health-care resources at all. (Opp'n 8.)

The Government m oves to dismiss Plaintiffs' APA claim for lack of subject matter jurisdiction

because Plaintiffs lack standing. To determine whether Plaintiffs have standing, the Court must

undertake two separate inquiries. First, the C ourt must determine whether Plaintiffs have

constitutional standing under Article III. Second,

if Plaintiffs meet the r equirements for

constitutional standing, the Court must determinewhether Plaintiffs meet the prudential standing

requirements - i.e., whether Plaintiffs have a right to sue under the APA.

1. Article III Standing

Article III of the Constitution limits the exercise of judicial power to "Cases" and "Controversies." U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). For a case to satisfy a federal court's case-or-controversy requirement, Article III, Section 2 requires an "irreducible" minimum of standing. Id. at 560. "The plaintiff has the burden of establishing the three elements for Article III standing: (1) he or she has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) t he inj ury is likely to be r edressed by a favorable court decision." Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (citingLujan, 504 U.S. at 560-61)). The Government attacks Plai ntiffs' ability to establish the first and third requirement: injury in fact and redressability.5 (Mot. 4-5.)

/// a. Injury in Fact

5 Constitutional standing also requires Plaintiffs to establish causation - the injury is fairly traceable to the challenged conduct. Lujan, 504 U.S. at 560-61. Here, there is no dispute about causation because "this requirement is onyl implicated where the concern is that an injury caused by a third party is too tenuous ly connected t o the acts of the defendant." Citizens for Better Forestry v. U.S. Dep't. of Agric., 341 F.3d 961, 975 (9th Cir. 2003);see also Idaho Conservation League v. Mum ma, 956 F.2d 1508, 1518 (9th Cir. 1992) ( "The causation question . . . concern[s] only whetherplaintiffs' injury . . . is dependent upon [the agency's] policy, or is instead the result of independent incentives governing [the third parties'] decisionmaking process. ") (alteration in original). Here, Plaintiffs' in jury is connected to the DVA's affirmative act toenter into land-use agreements pursuant to ESAs instead of EULs.
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Under the injury-in-fact requirement, a plaintiff must show "it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conj ectural or hypothetical." Friends of the Earth, Inc. v. Ladi law Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). This injury can be either substantive orprocedural. However, if Plainiftf is asserting a purely procedural injury, then "[t]o satisfy the injuryin fact requirement, aplaintiff . . . must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Citizens for Better Forestry v. U.S. Dep't. of Agric,. 341 F.3d 961, 969 (9th Cir. 2003) (internal quotation marks omitted). "[D]eprivation of a procedural right without some concrete interest that is affectedby the deprivation - a procedural rightin vacuo - is insufficient to create Article III standing." Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).

The Government argues that Plaintiffs have failed to allege a substantive injury, and that to the

extent Plaintif fs r ely on a pur ely procedural injury, the injury is not coupled with a "concrete

interest" such that Article III standing eixsts. (Mot.4, 5 n.5.) Plaintiffsargue that they have alleged

both substantive and procedural injury sufficient to establish standing. (FAC ¶¶ 274-75.)

i.

Substantive Injury

Plaintiffs contend that they su ffered a substantive injury. ( FAC ¶ 275.) According to Plaintiffs, when the VA GLA entered into ESAs after 2008, Plai ntiffs lost the assurance that land deals unrelated to the sharing of health-care resources on the WLA Campuswould result in appropriate space for activities for veterans. (FAC ¶ 275; Opp'n 8-9.)

The Government characterizes Plaintiffs' claimed substantive injury as the denial of supportive housing for disabled veterans by the DVA's decis ion to enter into land-use agreements under
ESAs. (Mot. 5.) The Government agr ues that Plaintiffs do not have aright to supportive housing for disabled veterans (Mot. 4), and therefore Plaintiffs are not i njured by the D VA's decision to enter into land-use agreements as ESAs rather than as EULs. (Mot. 5.)

The substantive injury in this case is not simply that Plaintiffs do not have permanent supportive housing; rather, it is that portoi ns of the WLA Campusare not being used to benefit veterans. The purpose and mission of the DVA, combined with t he statutes that regul ate the DVA's abilit y to lease its land, create a backgroundrule that absent compliance withthe land-leasing statutes, any land owned by the DVA must be used in a manner that benefits veterans.

The purpose of sharing health-careresources, which the DVA is authorized to do pursuant to the
ESA statutes, is "to strengthen the medical programs at Department facilities and improve the quality of health care provided veterans . . . by authorizing the Secret ary t o ent er into agreements with health-care providers in order to sharehealth-care resources . . .while ensuring no diminution of services to veterans." 38 U.S.C. § 8151 (emphasesadded). Thus, any landuse agreements made pursuant to ESAs are to benefit veterans b y improving health care for veterans.

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Similarly, the restrictions placed on EULs suppotrthe assumption that property owned by the DVA must be used in a manner that benefits veter ans. Before entering an EUL, the DVA must determine that the following three criteria have been met:
(i) at le ast p art o f t he u se o f the property under the lease will be to provide appropriate space for an activity contributin g to the mi ssion of the Department;
(ii) the lease will not be inconsistent with andwill not adversely affect themission of the Department; and
(iii) the lease will enhance the use of the property.
38 U.S.C. § 8162(a)(2)(A)(i)-(iii). Even if the DVA determines that these three criteria have not been met, the DVA may enter into an EUL if the proceeds from the EUL are used in a way that "would result in a dem onstrable improvement of services to eligible veterans." 38 U.S.C. § 8162(2)(a)(B). Any lease made purs uant to EULs requires the property itself or the proceeds derived therefrom be used for the benefit of veter ans. The combination of these two land-use statutes (authorizing ESAs and EULs) makes it clear that Congerss's intention was to ensure that property leased to third parties is primarily used to benefit veterans.
After 2008, Congress prohibited the DVA from entering into EULs at the WLA Campus. See 38 U.S.C. § 8162(c)(1). Unlike EULs, land-use agreements made pursuant to ESAs do not require any additional procedural requirements. After2008, the DVA's land-useagreements entered into pursuant to ESAs that do not provide for sharing of health-careresources were unauthorized and resulted in lost access to space and opportuniti es that benefit veterans on the WLA Campus. Because these allegedly unauthorizedESAs do not benefit veterans, thislost access to space and opportunities is a substantive injury sufficient to satisfy Article III's standing requirements.
ii. Procedural Injury
Plaintiffs allege that ESAs can only be used for acvtities that benefit veterans or for improvements in the VA GLA's services. (FAC ¶ 275.) Plaint iffs have argued that prior to 2008, if the DVA wanted to enter land-use agreements unrelated to sharing health-care resources, it was required to execute the agreements as EULs, rather ht an ESAs. (Opp'n 9.) EULshave certain procedural requirements, including: a public hearing; notice of the proposed lease and of the hearing; and notice of the DVA's intentoi n to enter into such lease in the eFderal Register. 38 U.S.C. § 8163(a)(c). Therefore, Plaintiffs alsoallege that they have suffered procedural injury, because they were denied procedural protections, including the opport unity to make their views known at public hearings and the opportunity to have access to public ly available descriptions and justifications of the DVA's proposed and final land deals. (FAC ¶¶ 274, 313.)
In a case involving procedural injury, a plaintiff must allege that: "(1) the [agency] violated certain procedural rules; (2) these rules protect [a plaint iff's] concrete interest; and (3) it is reasonably
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probable that the challenged action will th reaten their c oncrete interests." City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (alt eration in original) (quoting Citizens for Better Forestry, 341 F.3d at 969-70).
The Government appears to concede that Plaintiffs have sufficiently alleged a procedural injury, but ar gues t hat the procedural in jury is not connected to a "concrete interest" such that the procedural injury satisfies Article III's standing requirements. The Government characterizes the "concrete interest" put forward in this case as Plaintiffs' interest in a particular form of supportive housing for veterans, and argues that this interest is not harmed by the DVA's decision to enter into ESAs rather than EULs. (Mot. 4.) Plainti ffs, however, allege that they have a conc rete interest that p roperty on the WLA Campus leased pursuant to ESAs be used for activities that benefit veterans - e.g., health-care resource sharing. (Opp'n 8-9.)
Plaintiffs do have a concrete interest in how the WLA Campus is used. The WLA Campus was created to benefit veterans. (See Master Plan at 6 (WLA Campus was "donated to establish the Pacific B ranch of the N ational Home for D isabled V eterans").) C urrently, the WLA C ampus provides a "full continuum of medical services" to benefit veterans. (Master Plan at 6.) Plaintiffs have used and would like to continue to use the s ervices provided at the WLA Campus. (FAC ¶¶ 118-250.) These interests are concrete. Where the agency action complained of pertains to land-use decisions, Plaintiffs hoping to meet the "concrete injury" test "must allege that they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected by the [agency's] policy." Citizens for a Better Forestry, 341 F.3d at 971. Here, the individual Plaintiffs are homeless veterans in the Los Angeles area who used, and would like to continue to use, the services at the WLA campus. (FAC ¶¶ 118- 250.) Plaintiffs established a geographic nexus because they will suffer harm by virtueof their proximity to the WLACampus if the land is not used for their benefit. This is not a situation where Plaintiffs are veterans who live at the other end of the county from the WLA Campus with no intent or plan to use the services provided at the WLA Campus.
It is precisely these interests that the procedural rules sought to protect. The explicit purpose of ESAs, which do not require the addtiional procedural requirements, is "to strengthen the medical programs at Department facilitiesand improve the quality of health care provided veterans . . . by authorizing the Secretary to ente r into agreements with health-care providers in order to share health-care resources." 38 U.S.C. § 8151. Any ESAthat does not provide for sharing of healthcare resources results in lost access to spac e and opportunities that benefit veterans. Under EULs, the DVA must determine t hat the EULs "provide appropriate space for an activity contributing to the mission of [theDVA]" or the proceedsfrom EULs are used in a way that "would result in a demonstrable improv ement of services to eligible veterans." 38 U.S.C.

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

§ 8162(a) (2)(A)(I), (a)(2)(B). The combination of these statutes makes crystal clear that Congress's intention was to ensure that the DVA's land was used primarily to benefit veterans.6
Finally, it is already demonstratedthat the failure to abide by theprocedures has resulted in injury to t he c oncrete interest. Plai ntiffs were not given their procedural rights to comment on the proposed land-use agreements before they were executed, and as a result, land on the WLA Campus is being used in ways that do not benefit veterans. "Plaintiffs alleging procedural injury 'must show only that they have a procedural right that, if exercised, could protect their concrete interest.'" Salmon Spawning, 545 F.3d at 1226 (citation omitted). If Plaintiffs had been provided notice of the proposed land-use leases or given an opportunity to participate in public hearings, they could have protected their interest in ensuring that the WLA Campus be used in a manner that benefits veterans. It is true that no one knows for sur e whet her the existing land-use agreements would have been enteredanyway even if the DVA had followed the EUL procedures; but absolute certainty in whatdecisions would have been reached had different procedures been followed is neither possible nor required.
The Government misses the mark in ar guing that Plaintiffs do not have a right to permanent supportive housing. In their APA claim, Plainti ffs are not seeking an injunction orde ring t he Government to provide permanent supportive housi ng. Plaintiffs merely seek an injunction forbidding the Government from executing agreements as ESAs that do not concern sharing of health-care resources. (FAC Req. for Relief.) Because Plaintiffs have alleged both a substantive injury (that the land at the WLA Campus is not being used to benefit veterans) and a procedural injury coupled with a concrete interest (denial ofnotice and ability to comment, plus an interest in how the WLA Campus is used), Plaintiffs have met Article III's inj ury-in-fact requirement to establish standing to pursue their APA claims.
b. Redressability
In addition to the injury-in-fact requirement, Plaintiffs must also establish that their injury is likely to be redressed by a favorable court decision.Lujan, 504 U.S. at 560-61. "Only a person who has been accorded a procedural right to protect his c oncrete interest can assert that right without meeting all the normal standards for redressability and immediacy." Summers, 555 U.S. at 496 (internal quotation marks omitted).
Where, as here, Plaintiffs allege procedural injury, the redressability requirement is relaxed. For procedural injury, Plaintiffs "need not demonstrat e that the ultimate outcome following pr oper procedures will benefit them." Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001).

6 For land-use agreements entered into after 2008, Plaintiffs' substantive injury and threat to their concrete interest are the same - i.e., the WLA Campus is not being used f or the benefit of veterans. See supra Part II.B.1.a.i.
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

Instead, "[p]laintiffs alleging procedural injury .. . need to show only that the relief requested - that the agency follow the correct procedures - may inufel nce the agency's ultimate decision of whether to take or refrain from taking a certain action." Salmon Spawning, 545 F.3d at 1226-27; see also Lujan, 504 U.S. at 573 n.7 (noting that a plaintiff "living adjacent to the site for a proposed dam has standing to challenge the licensing agency's failure to prepar e an environmental impact statement, even though he cannot establish with any certainty that the statement will be withheld or altered."). Accordingly, Pal intiffs need not assert that theDVA's land-use agreements pursuant to EULs would have resulted differently - for instance, permitting activit ies t hat only benefit veterans. For the purpose of redrsesability, it is sufficient thathe DVA's decision to lease property could have been influenced by a public hearing to address possible effects the proposed leases would have on services to veterans. See 38 U.S.C. § 8163(a).
The Government contends that even if Plaintiffs were injured by the DVA's decision to enter into ESAs - thereby depriving them of certain procedural protections that apply to p roposed EULs Plaintiffs' injury cannot be redressed by a favorable court decision because the DVA is now prohibited from entering into EULs. (Mot. 5.) Because the DVA is prohibited from using EULs, the Government asserts that Plaintiffs are not injured by the denial of procedural protections that Congress has now prevented the DVA from providing. (Mot. 5.)
The relief Plaintiffs seek under their APA claims is not that land-use agreements be executed as EULs going forward. (FAC Req. for Relief.) Rat her, Plaintiffs seek: (1) a declaration that the existing land-use agreements enter ed as ESAs unrelated to shari ng health-care resources are unauthorized by law or regulation; and (2) an inj unction prohibiting the DVA from entering into ESAs in the future that do not concern the shar ing of health-care re sources. (FAC Req. for Relief.) "Redressability depends on whether the court has the abilityto remedy the alleged harm." Nuclear Info. & Res. Serv.v. Nuclear Regulatory Comm'n, 457 F.3d 941, 955 (9th Cir. 2006). The Court has the ability to declare unlawful the current land-use agreements entered into pursuant to ESAs that do not relate to health-care res ource sharing and t o enjoin the Government from entering into future ESAs unrelated to health-care resource sharing. Such relief would free the land on the WLA Campus to be used to benefit veterans and thereby remedy Plaintiffs' asserted harm. For the foregoing reasons, Plaintiffs have established the requirements for Article III standing.7

7 Because the individual Plaintiffs estab lished constitutional standing, Plaintiff VVA has also established associational standing on behalf of its members. "An association has standing to bring suit on behalf of its mem bers when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, 528 U.S. at 181. Here, Plaintiff VAA's members have standing to sue in their own right, the interests at stake are germane to VAA's purpose to promote and support a fu ll range of issues important to Viet nam
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTtE7S0 DFISilTeRd I0C3T/1C6O/1U2RTPage 15 of 41 Page ID #:985 CENTRAL DISTRICT OF CALIFORNIA
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

2. Prudential Standing
The Government contends that Plaintiffs lack prudential standing. (Mot. 6-8.) Under prudential standing, the Court must determine whether "a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit." City of Sausalito, 386 F.3d at 1199. Because the Veterans' Benefit Act does not provide for a private right of action, Plaintiffs' challenge to the DVA's decision to enter into certain land-use agreements must be brought under the APA.
Under the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action withinhte meaning of a relevant statute,is entitled to judicial review thereof." 5 U.S.C. § 702. "Where no other statute provides a private right of action, the 'agency action' complained of must be ' final agency action.'" Norton v . S . Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 61-62 (2004) (emphasis in original) (quoting 5 U.S.C. § 704). The scope of the judicial review is explained in § 706:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found
to be -(A) arbitrary, capricious, an abus e of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidencein a case subject to sections556
and 557 of this title or otherwisereviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extentthat the facts are subject to trial de novo by the reviewing court.
5 U.S.C. § 706. Notwithstanding this provision, a plaintiff "cannot seek wholesale improvements of [a] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990) (emphasis in original). The Governm ent argues that Plaintiffs' APA

veterans, and the relief requesteddoes not require participation ofindividual members. As such, Plaintiff VAA has established associational standing.
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTtE7S0 DFISilTeRd I0C3T/1C6O/1U2RTPage 16 of 41 Page ID #:986 CENTRAL DISTRICT OF CALIFORNIA
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

claim is improper because they do not challenge agency actions that are discrete or final. (Mot. 6-8.)
a. Discrete Agency Action
The Government argues that Plaintiffs lack prudential standing under the APA because they fail to allege a discrete agency action. (Mot. 6.) An agency action "includes the whole or a part of an agency rule, order, license, sanction,relief, or the equivalent or deniatlhereof, or failure to act." 5 U.S.C. § 551(13). "All thosecategories involve circumscribed,discrete agency actions."SUWA, 542 U.S. at 62.
The Government relies on SUWA to support its contention that Pl aintiffs must allege a discrete agency action to have standing underthe APA. (Mot. 6.) InSUWA, the Supreme Court held that an APA suit under § 706(1) to compel agency action unlawfully withheld or unreasonably delayed "can proceed only where a plaintiff asserts that an agency failed to take adiscrete agency action that it is required to take ." SUWA, 542 U.S. at 64 (emphas es in original). "This interpretation effectively precludes enforcement of broad statutory mandates under section 706(1), insofar as a broad mandate typically is not one that requires discrete agency action." Public Lands for the People, Inc. v. U.S. Dept. of Agric., 733 F. Supp. 2d 1172, 1183 (E.D. Cal. 2010).
However, Plaintiffs bring t heir APA claim under § 706(2) not § 706(1). (FAC ¶ 314.) The Government claims that the holding in SUWA is not limited to chall enges brought pursuant to § 706(1), but it equally applies to challenges tofinal agency action brought pursuant to § 706(2). (Mot. 6 n.6.) According to the Government, Plaintiffs lack prudential standing because the duty to provide permanent supportive housing is not a discrete duty that the DVA is required to take. (Mot. 6.)
The Court does not agree wiht the Government thatSUWA's holding applies to challenges to final agency actions brought pursuant to § 706(2). Under § 706(2), a court reviews "the validity of the final agency action that was taken, not - as in SUWA - demanding that the agency take some action that it has not taken." Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1119 (9th Cir. 2010). A final agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," which renders it invalid under § 706(2)(A), need not be a " discrete agency action" under SUWA, as the Government suggests. See id. ; see als o Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 681 n.10 (9th Cir. 2007) (finding that SUWA "is distinguishable from the instant case bec ause [SUWA] dealt with the power of courts to 'compel agency act ion unlawfully wit hheld' under 5 U.S.C. § 706(1)[,]" whereas the petitioners challenge a final agency action under § 706(2)).
There are situations where a challenge to an agency action will prevail under § 706(2) , but fail under § 706(1). For exam ple, a final agency ac tion "could be arbitrary and capricious under section 706(2) for failing to analyze specific factors even though the omitted analysis could not
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

separately be compelled under § 706(1) as an ac tion that the agency was 'required to take.'" Public Lands for the People, 733 F. Supp. 2d at 1183-84 (citingOr. Natural Desert Ass'n v. Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir. 2008), amended and superseded by Or. Natural Desert Ass'n, 625 F.3d 1092). There may be situations "where a s tatutory directive does not require action, [and then] the statute may be so 'broad' that it cannot be enforced under section 706(1) without being too broad to be enforced under section 706(2)." Id. at 1184. Thus, the holding in SUWA is inapplicable to challenges under § 706(2)(A), and Plaintiffs do not nee d to allege a discrete agency action to pursue their claim.
Even if Plaintiffs were required to allege discrete agency actions, they have adequately done so. In their APA claim, Plaintiffs aer not challenging the DVA's failure to provide permanent supportive housing. Plaintiffs are challenging the DVA's decision to enter into specific land-use agreements pursuant to ESAs. The specific land-use agreementsto which Plaintiffs object constitute discrete agency action.
b. Final Agency Action
The Government also argues that to the extent Plaintiffs' APA c laim is based on the VA GLA's Master Plan, Plaintiffs fail to allege that the Master Plan is a final agency action. (Mot. 7.) "The right of judicial review under the APA is limited to 'final agency action for which there is no other adequate remedy in a court.'" Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 553 (9th Cir. 2009) (quoting 5 U.S.C.§ 704). Plaintiffs contend thatthe DVA violated its statutory mandate under the statutesauthorizing ESAs when it executedland-use agreements for activities unrelated to health-care resource sharing. (Opp'n 11.)
Here, Plaintiffs do not seek wholesale improvements of the DVA's programs through their APA claim. Plaintiffs do not challenge the VA GLA's Ma ster Plan in its entirety. Rather, Plaintiffs contest specific land-use agreements between the DVA and private and commercial entities, which are referenced in the VA G LA's Master Plan. (FAC ¶¶ 260-63; see Master Plan.) An agency action is final if two conditions are met. "First, the action must mark the consummation of the agency's decisionmaking process - it must not be of a merely tentative or interlocutory nature. And second, the actoi n must be one by which rights orobligations have been determined, or from which legal consequences will flow." Bennett v. Spear , 520 U.S. 154, 177-78 (1997) (internal citation and quotation marks omitt ed). The DVA's decisions are not tentative or interlocutory, but rather are finalized land-use agreements. T he DVA's execution of land-use agreements pursuant to ESAs fixe s legal obligations between itself and its leasing partners. Because the ESAs are final and fixlegal obligations between the DVA and private entities, these ESAs are final agency actions. Plai ntiffs challenge to the DVA's decision to enter into ESAs is sufficient to establish standing pursuant to § 706(2).

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

Plaintiffs have established both constitutionaland prudential standing. Because standing was the only ground on which the Government sought to di smiss Plaint iffs' APA cl aim, the Motion is DENIED as to claim 6.
C. Plaintiffs' Charitable Trust Claims
Plaintiffs' third, fourth, and fifth causes of action (the "charitable t rust c laims") are based on Plaintiffs' allegation that when Senator John P. Jones and Arcadia B. de Baker donated the land that is now the WLA Campus to the Governmetn, a charitable trust was created for which disabled veterans are the beneficiariesand the Government is trustee8. (FAC ¶¶ 300-310.) Plaintiffs allege that under the terms of the charitable trust, the Government, as trustee, may only use the land at the WLA C ampus for purposes that "di rectly contribute to the establ ishment and permanent operation of a home for disabled veterans." (FAC¶ 301.) By using the land (and authorizing third parties to use the land) for other purposes, Plai ntiffs claim the Government has breac hed its fiduciary duties as trustee. (FAC ¶ 302.)
The third cause of action alleges breach of fiducia ry duty as trustee, the fourth cause of action seeks an accounting, and the fifth cause of action seeks mandamus relief. S( ee generally FAC.) The mandamus claim is pled in t he alternative, on the theory that pursuant to the terms of the charitable trust, the Governmenthas a non-discretionary fiduciary duty to use the land at the WLA Campus only for the purpose of housing disabled ve terans. (Opp'n 14 n.7.) As relief, Plaintiffs seek an injunction requiring the Government to faithfully execute its obligations as trustee and to utilize the WLA Campus solely for purposes that directly relate to providing a home for disabled veterans or, in the alternative, an order mandating that the Government refrain from allowing the current uses of the WLA Campus not directly related to providing a home for disabled veterans to continue. (FAC Req. for Relief.) Plaintiffs also seek an injunction requiring an accounting of all profits received by the DVA or VA GLA as a result of the land-use agreements for the WLA Campus under which the land is used for any purposenot directly related to providing a home for disabled veterans. (FAC Req. for Relief.)
The Government presents four arguments why t he Cour t should dismiss the charitable trust claims: first, Plaintiffs lack Article III standing for their charitable trust claims (Mot. 8); second, the charitable trust claim s are barred by soverei gn immunity (Mot. 8-10); third, the Court lacks jurisdiction, as the charitable trust claims do notpresent a federal question sufficient to invoke the Court's jurisdiction under 28 U.S.C. § 1331, and pendent jurisdiction under 28 U.S.C. § 1367 is not appropriate because the charitable trust claims are not sufficiently related to Plaintiffs' other

8 Plaintiffs allege that the land was originally given to the National Home as trustee, and the DVA is the successor-in-interest to theNational Home, and thus the DVA is the current trustee. (FAC ¶ 301.)
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

causes of action (Mot. 10-13); finally, Plaintiffs have simply failed to state a c laim for breach of fiduciary duty (Mot. 17-20). The Court will analyze each of these arguments in turn.
1. Article III Standing
As discussed above, Article III standing requires: (1) that the pl aintiff have suffered an i njury in fact; (2) that the injury was caused by defendant's conduct; and (3) that the injury is likely to be redressed by a favorable court decision. Salmon Spawning, 545 F.3d at 1225. The Government contends that Plaintiffs have failed to establish redressability, because even if Plaintiffs prevailed on their charitable trust claims, the Government might not have sufficient funding to construct housing for disabled veterans. (Mot. 8.) And ev en if the Government did construct housing for disabled veterans as a result ofthis lawsuit, other disabled veterans may be found to be in greater need than the individual Plaintiffs in this action. (Mot. 8.)
The Government also avers, without stating any supporting rationale, that Plaintiffs have failed to allege injury in fact. (Mot. 8.) Perhaps the Government seeks to rely on the same arguments it made with respect to the APA claim, although this is not made clear in the Government's brief. Plaintiffs, however, claim that the Government has impaired the trust assets by permitting land usage inconsistent with thepurpose of the charitabletrust, of which Plaintiffs are the beneficiaries. (FAC ¶ 302.) The Court finds that this allegation -that the assets of the trust (i.e., the land) have been misappropriated - is sufficient to satisfy Article III's injury-in-fact requirement. Because the injury alleged is misappropriation of trust assets (as opposed to denial of housing), this injury can be remedied by an order requiring the Government torefrain from using the land for purposes not directly related to providing housing for disabled veterans.
Plaintiffs also allege the injury of not receiv ing housing at the WLA Campus, an injury Plaintiffs hope the Court will remedy by requiring the Govern ment to provide su ch housing. That the Government may not have sufficient funds to actually provide the housing if the Court requires it to do so is not sufficient to def eat the redressability requirement of Article III. If it were, every defendant in every case could argue that it does not have the funds necessary to pay a potential judgment and thereby get the case against it dismissed on standing grounds. In response to the Government’s argument that other disabled veterans may receive the benefit of any housing that is built instead of the individual Plaintiffs in thisaction, Plaintiffs claim they are being denied even the chance to receive benefits fromthe charitable trust. (Opp'n 19.) Plaintiffs concede that if the Government establishes housing for disabled veterans on the WLA Campus, the individual Plaintiffs in this case might not receive that housing. (Opp'n 19.) H owever, if housing is built, Plaintiffs will at least be able toenter a queue for that housing, wiht the possibility of obtaining the housing benefit, based on whatever criteria the Government establishes for selection. The ability to apply for housing redresses Plaintiffs' injury, even if the individual Plaintiffs are not ac tually granted the housing they seek.

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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

This situation is similar to Regents of University of California v. Bakke , 438 U.S. 265, 281 n. 14 (1978). In Bakke, a white, male applicant who was reject ed from the University of California at Davis Medical School sued the Regents of the Universtyi of California, arguing that the affirmative action program utilized by the admissions commi ttee for the medical school at UC Davis was unconstitutional. Id. at 272-77. Severalamici argued that the plaintiff lacked standing, as he could not prove that he would have been admitted to the medical school were it not for the affirmative action program. Id. at 281 n.14. The Supreme Court held thatplaintiff's injury was his inability to compete on an even playing field for eachspot in the medical school class.Id. Thus, even though plaintiff could not prove that he would have been adm itted were it not for the affirmative ac tion program, an order requirni g the defendant to abandon its affirmavtie action program would remedy the injury by allowing the plaintiff to adequately compete for each spot in the medical school. Id. The Supreme Court found this sufficient to meet Article III's redressability requirement. Id. So too here, if the Government constructs housing for disabled veterans as a result of this lawsuit, the individual Plaintiffs will at least be permitted toapply for the housing, and thus their injury will have been sufficiently redressed for the purposes of Article III.
2. Sovereign Immunity
The parties do not dispute the general proposition that the United States cannot be sued without consent. (Mot. 8; Opp'n 16-17; see United States v. Mitchell , 445 U.S. 535, 538 (1980)). The parties also do not dispute that 5 U.S.C. § 702 includes a waiver of sovereign immunity. (Mot. 9; Opp'n 16-17.) The only dispute before the Court is whether t he waiver of sovereign immunity contained in § 702 extends to Plaintiffs' charitable trust claims.
5 U.S.C. § 702 provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief thereinbe denied on the ground that it is against the United States or that the United States is an indispensable party.
5 U.S.C. § 702. It is well established that the second sentence of § 702, which Congress added in 1976, was intended to waive sovereign immunity. See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir. 1989) (analyzing legislative intent in depth).
The Government contends that § 702 only waives svoereign immunity where a plaintiff challenges a "final agency action" or alleges a constit utional violation. (Mot. 9.) Thus, according to the Government, the waiver of sovereign immunity contained in § 702 does not extend to Plaintiffs' charitable trust claims, which arise under federal common law. (Mot. 9.) The Court disagrees.
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTtE7S0 DFISilTeRd I0C3T/1C6O/1U2RTPage 21 of 41 Page ID #:991 CENTRAL DISTRICT OF CALIFORNIA
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CASE NO.: CV 11-04846 SJO (MRWx)

DATE: March 16, 2012

The Court begins, as it must, by analyzing the text of the statute. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means ina statute what it saysthere."). The text of§ 702 does not contain the limitation urged by the Government. Rather, § 702 is worded broadly - under its plain language, the statute waives sovereign immunity for any action alleging injury as a result of agency action (or inaction), so long as the suit does not seek money damages. The Supreme Court has held that for the purposes of § 702, "complaints [for] declraatory and injunctive relief[] . . . [are] certainly not actions for money damages." Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). And it is undisputed that the instant lawsuit challenges t he actions and inact ions of the DVA, a federal agency. Thus, under the plain meaning of § 702,hte Government's waiver of sovereign immunity extends to this action.
Nevertheless, the Government argues that Gallo Cattle Com pany v. U.S. Departm ent of Agriculture, 159 F.3d 1194, 1199 (9th Cir. 1998), stands frothe proposition that § 702 only waives sovereign immunity if the lawsuit is challenging "final agency action" under 5 U.S.C. § 704. The plaintiff in Gallo Cattle, a company involved in the production of cheese, filed a petition with the Secretary of Agriculture challenging on First Amendment grounds an assessment imposed on it by the National Dairy Promotion and Research Board. Id. at 1196. In its petition, plaintiff sought interim relief: that it be permitted to pay its sasessment into an escrowaccount pending a decision on the merits of the petition. Id. The judicial officer acting forthe Secretary of Agriculture denied the interim relief. Thereafter, plaintiff filed an action in the Eastern District of California seeking review of the judicial officer's order denying int erim r elief. The court held that the waiver of sovereign immunity contained in § 702 is limit ed by § 704's requirement that only final agenc y action is reviewable under the APA. Id. at 1198.
The Gallo Cattle p laintiff's claim, however, arose under the APA, and was thus necessarily circumscribed by the limitations in § 704. To read Gallo Cattle as imposing § 704's finalit y requirement on any case relying on the sovereign immunity waiver of § 702 would caus e Gallo Cattle to conflict with Presbyterian Church. In Presbyterian Church, plaintiffs sued the United States, the Department of Justice, the Immgi ration and Naturalization Services ("INS") and several INS officers for First and Fourth Amendment violations after INS agents conducted an investigation by wearing "body bugs" to churchservices without a warrant or probable cause that the surveillance would uncover criminal activity. Presbyterian Church, 870 F.2d at 520. The government argued that "§ 702's waiver of sovereign immunity applies only [to] 'agency action'" as defined by the APA, and that theinvestigatory action that was thesubject of the lawsuit did not fit this definition. Id. at 524-25. The c ourt rejected this argument, holding that the waiver of sovereign immunity in "§ 702 contains no such limitation. On its face,the 1976 amendment is an unqualified waiver of sovereign immunity in actions seeking nonmonetary relief against legal wrongs for which governmental agencies are accountable." Id. at 525 (emphasis added).
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In the instant case, the Government seeks to reconcile Gallo Cattle and Presbyterian Church by reading Presbyterian Churchas narrowly as possible and then mashing the two holdings together. The Government contends that ht e sovereign immunity waiver in§ 702 applies only to final agency action (as inGallo Cattle) or alleged violations ofconstitutional rights (as inPresbyterian Church). (Mot. 9.) The more principled way to reconcile t he cases is to acknowledge that the claims in Gallo Cattle were brought under the APA, andwere necessarily limited by § 704's requirement of finality. Thus, the holding of Gallo Cattle is that for claims brought under the APA, the sovereign immunity waiver is no broader t han the scope of allowable claims - challenges to final agency action. Where the allegat ion is that the agency action violates another law - be it statutory, constitutional, or common law - the waiver of sovereign immunity is notso limited, but rather is the broad, unqualified waiver described in Presbyterian Church and suggested in the plain language of the statute.
Moreover, even if the waiver of sovereign immunity in § 702 only applied to the extent that the agency action complained of was "final" under § 704, Plaintiffs in t his case have alleged final agency action. Each of the land-use deals objec ted to is a final agency ac tion, as discussed above. For the foregoing reasons, the Court finds that Plaintiffs' charitable trust claims are not barred by sovereign immunity.
3. Subject Matter Jurisdiction
The Government contends that none of the statutes cited by Plai ntiffs vests this Court with jurisdiction to hear the charitable trust claims. To establish jurisdiction, Plaintiffs cite 28 U.S.C. § 1331, which provides: "The districtcourts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U nited States." The Government contends that Plaintiffs' trust claims do not allege a violation ofthe Constitution, any federal statute, regulation, or treaty, and therefore do not satisfy § 1331's requirement. (Mot. 11.)
Plaintiffs argue that because their charitable trustclaims allege violations of federal common law, § 1331 jurisdiction is appropriate. (Opp'n 12-13.)Indeed, the Supreme Court has held that § 1331 jurisdiction "will support claims founded upon federalcommon law as well as those of a statutory origin." Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); see also Sarei v. Rio Tinto, PLC, No. 02–56256, 2011 WL 5041927, at *9 (9th Cir. Oc t. 25, 2011). T he Government, however, argues that there is no federal common law of charitable trusts, and Plaintiffs simply invoke the federal common law hopingthat this Court willcreate federal common law,which is inappropriate here. (Mot. 11-12.)
The Court does not believe it necessary to determine whether there exists an established federal common law of charitable trusts and, if not, whether it would be appropriate to create it. Rather, the Court finds that jurisdiction is appropria te under § 1331 because the charitable trust claims implicate significant federal issues. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005). A charitable trust claimagainst the federal government will always require
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an initial analysis of whether Congress has passeda statute agreeing to assume fiduciary duties as a trustee of the charitable trust. See infra Part II.C.4.. It is appr opriate to provide a federal forum to address these issues.
In Grable, the Internal Revenue Service ("IRS") seized real property belonging to the plaintiff to satisfy a tax deficiency. Grable, 545 U. S. at 310. Plaintiff re ceived notice of the seizure by certified mail before the IRS soldthe property to the defendant. Id. Five years later, plaintiff sued defendant in state court for quiet title, asserting that defendant's record title was invalid because plaintiff had not given proper notice of the seizure. Id. at 311. The applicable statute, 26 U.S.C. § 6335(a), provided that "notice in writing shall be given . . . to th e owner of the property . . . or shall be left at his usual place of abode or business . . . ." 26 U.S.C. § 6335(a). Plaintiff insisted that the statute required personal service, not service by mail. Grable, 545 U.S. at 311; see also Empire Healthchoice Assurance, Inc. v. McVeigh , 547 U.S. 677, 699-700 (2006) (summarizing Grable). Defendant removed the case to feder al court, and the Supreme Cour t held that jurisdiction was proper even though the cause of action for quiet tit le arose under state law. Grable, 545 U.S. at 314-15. The Supreme Court held that t he issue of whether plaintiff had received adequate notice under the federal statute was "an essential element of [plaintiff's] quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual iss ue c ontested in the case." Grable, 545 U.S. at 315. Because the federal government has a "strong interest in the prompt and certain collection of delinquent taxes," the federal government also had a"direct interest in the availability of a federal forum to vindicate its own administrative actions." Id. (internal citations and quotati on marks omitted). F inally, the Supreme Court noted that it was ht e "rare state title case that raises a contested matter of federal law," and thus exercising federal jurisdiction insuch cases "will portend only a microscopic effect on the federal-state division of labor." Id.
This is such a case. As discussed in greater detail below, and as Plaintiffs concede (Suppl. Br. in Supp. of Opp'n 2), the federal government does not assume enforceable duties as trustee of a charitable trust absent statutory authorization. See Story v. Snyder, 184 F.2d 454, 456 (D.C. Cir. 1950). Thus, whether the fedear l government has in fact assumed any enforceable duties as trustee will always depend on an analysis of a federal stautte. In the instantcase, Plaintiffs argue that the Government indicated its consent to assume enforceable duties as a trustee in 24 U.S.C. § 111, 14 Stat. 10 (1866), and the breach of these duties gives rise to the charitable trust claims in this case. (Opp'n 14-15.) Thus, an "essential element," Grable, 545 U.S. at 315, of Plaintiffs' charitable trust claims is whether the statute indicated Congress's intent to assume enforceable duties as trustee if it accepted donated land. The meaning of this federal statute is in dispute. (Compare Mot. 17-18, with Opp'n 14-15.) Indeed, as in Grable, the federal question presented in this case - whether the Government is subject to enforceable trustee duties - is likely the only issue in dispute with respect to the charitable trust claims, as the partiesdo not appear to dispute that some portion of the land at the WLA Campus is not being us ed to directly benefit disabled veterans. Moreover, the federal government has a strong interest in managing and operating its land and real property; consequently, it is appropriate to adjudicate in a federal forum the federal
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government's obligations with respect to land to which it has gained title via charitable donation. Finally, just as the number of st ate title cases affected by the Grable holding was small, so too here, the number of chariat ble trust cases affected by an exerciseof jurisdiction is minuscule. The only cases affected are those involving land grant s to the f ederal government for charitable purposes. The vast majority of charitable trust cases, including private charitable trusts, and charitable trusts with a state or municipality as trustee, will not similarly imp licate a f ederal question.

Because the charitable trust claims implicate a significant federal issue - the circumstances in which the federal government a ssumes enforceable duties as trus tee of a charitable trust jurisdiction is appr opriate under 28 U.S.C. § 1331. The Court need not consider whether jurisdiction is appropriate under 28 U.S.C. § 1367.

4. Failure to State a Claim

Plaintiffs allege that the 1888 Deed created a chairtable trust and that theDVA, as the successor-

in-interest to the National Home (the original grantee), holds the land in trust for the in tended

beneficiaries: disabled veterans. (FAC ¶ 301.) Plaintiffs allege that under the t erms of the

charitable t rust, the land can only be used for

purposes "that directly contribute to the

establishment and permanent operation of a home for disabled veterans." (FAC ¶ 301.) Finally,

Plaintiffs allege that by authorizing other uses of the land at the WLA Campus, the Government

has breached its fiduciary duties as trustee of the charitable trust. (FAC ¶ 302.)

The Government argues that with respect to the charitable trust claims, Plaintiffs have failed to state a claim on which relief can be granted. T he Government argues: (1) that the instrument Plaintiffs claim created the charitable trust - the 1888 Deed - did not actually signal the grantors' intent to create a charitable trust, and thus notrust was created; and (2)no statute authorized the assumption of an enforceable fiduciary duty with rsepect to the land at the WLA Campus, and thus the Government cannot be forced to satisfy fiduciary duties it has not assumed. (Mot. 17-20.)

///

/// a. Creation of a Charitable Trust

Among other methods, a trust may be created by a transfer, either by will or inter vivos, from a property owner to another person as trustee for one or more persons. Restatement (Third) of Trusts § 10. A trust is only created if the settlor properly manifests an intention to create a trust relationship. Restatement (Third) of Trusts § 13. If a trust is created, the trustee has certain duties to the beneficiaries, includinga duty to administer the trust in accordance with its terms and a duty of loyalty. See Restatement (Third) of Trusts §§ 76-84.

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The parties agree that the Government has the capacity to serve as trustee of a charitable trust. (Mot. 17.) However, there are several ways in whihc the Government, as trustee, is different than a private trustee. O rdinarily, "[a] trust can be created without notice to or acceptance by any beneficiary or trustee." Restatement(Third) of Trusts § 14. In ocntrast, "gifts to the United States which involv e any duty, burden, or condi tion, or are made dependent upon some future performance by the United States , are not accepted by the Government unless by the express authority of Congress." Story v. Snyder, 184 F.2d 454, 456 (D.C. Cir. 1950). Although the federal government will not accept a conditional gift absent statutory authorization, Congress has seen fit to pass a number of statutes authorizing such gifts. Some of the statutes authorize the receipt of a specific, contemplated gift. See, e.g., Act of Aug. 10, 1846, 9 Stat. 102 (accepting original gift of James Smithson to create the Smithsonian In stitute). O ther s tatutes apply proactively, accepting in advance all future donations for a particular purpose. See, e.g., 10 U.S.C. § 2601 (authorizing acceptance of any gift to the arm ed forces for the purpose of benefitting a school, hospital, library, museum, cemetery or other in stitution of the armed forces); 2 U.S.C. § 156 (authorizing acceptance of gifts for the benefit of the Library of Congress).
The 1888 Deed that is central to the instant case included the following conditional language:
Now therefore, in consideration of the premises and of the location, establishment, construction and permanent maint enance of a branch of said National Home for Disabled Volunteer Soldiers on such tract of land . . . , owners of [the property] do give and grant unto [the Government] all the following described land and premises . . . for the purpose of such branch Home for Disabled Volunt eer Soldiers to be thereon located, established, constructed and permanently maintained.
(FAC Exs. 1, 2.) Contrary to the Gov ernment's as sertions, the language in the 1888 Deed expresses far more than ahope on the part of the grantors thathe land would be used for certain purposes; the 1888 Deed requires that the land be used as indicated for all time ("permanently maintain . . . ."). The 1888 Deed granst the land to the Government on thecondition that the land is used to "construct[] and permanently maintain[]" housing for disabled veterans.
As explained above, the Government would not have been permitted to accept this grant without statutory authorization. Story, 184 F.2d at 456. In 1888, the Government did have statut ory authority to accept the deed. The Government accepted the land that is now the WLA Campus pursuant to 24 U.S.C. § 111, 14 Stat. 10 (1866) (the "1866 Act"). The 1866 Act established the National Asylum for Disabled Volunteer Soldiers, "an establishment for the care and relief of the disabled volunteers of the United States army . . . ." 14 Stat. 10 § 1. The board of managers of the National Asylum was given authority to proc ure land to erect build ings t o house disabled veterans. Id. at § 4. Critically, the 1866 Act also provided: "[T]he said board of managers are hereby authorized to receive all donations of money or property made by any person or persons for the benefit of the asylum, and to hold or dispose of the same for its sole and exclusive use." Id. at § 5. Thus, although the Government is not permitted to accept conditional gifts without
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statutory approval, such approval was given toaccept the 1888 Deed that transferred ownership of the land that is now the WLA Campus to the Government.
A host of cases have held that where a grantor gives money or property to the government for a charitable purpose, a charitable trust is established. For instance, in United States v. Kingsley, 194 A.2d 735, 742 (N.J. 1963), the c ourt held that the federal gov ernment's acceptance of a bequest that the decedent specified was to be us ed "for the national defense of the country" created a charitable trust.Story acknowledges that the Library ofCongress Trust Fund Board was authorized to accept donations in trust.Story, 184 F.2d at 455. And inUnited States v. Cerio, 831 F. Supp. 530, 535-36 (E.D. Va. 1993), the court held that a bequest to the United States Coast Guard Academy for the purpose of establishi ng a scholarship fund for graduat ing cadets "unmistakably create[d] a valid charitable trust."
The Government contends that the 1888 Deed did not seek to impose the duties of a trustee on the Government. (Mot. 18.) T he Government believes that the relevant language in the 1888 Deed merely "explains the motivation for the land donation." ( Mot. 18.) However, no "magic words" are needed to create a chari table trust. R estatement (Second) of Trusts § 24(2) ("N o particular form of words or conduct is necessary fo r the manifestation of intention to create a trust.") The intent of the donor is the critical factor. "The intention of the parties to the deed should control the construction of the instrument. The object in construing a deed is to ascertain the intention of the parties, and especially that of the grantor, from the words which have been employed in connection with the subject-matter, and from the surrounding circumstances." Aller v. Berkeley Hall School Found. , 40 Cal. App. 2d 31, 35 (1940). 9 Moreover, charitable gifts are favored, and devises attempting to benefit c haritable purpos es will be liberally construed. "[B]ecause charitable bequests are favored, they will be upheld if one can possibly be construed as valid by applying liberal rules of construction designed to accomplish the intent of the trustor or testator." Estate of Breeden, 208 Cal. App. 3d 981, 985 (1989).
Through the 1888 Deed, the grantorsgave the land to the Governmentfor the benefit of disabled veterans. Pursuant to the 1866 Act, the G overnment had authorization to accept the gift and, indeed, did accept t he gift. Because land was given to the Government for the purpose of benefitting a defined group of beneficiaries, a charitable trust was created, with the Government as trustee and disabled veterans as beneficiaries.

9 Plaintiffs allege their charitable trust cl aims arise under federal common law, but the substance of this law can be borrowed fromCalifornia law. (Opp'n 15.) The Government claims there is no federal common law of trusts, and the trust claims are creatures of state law. (Mot. 11.) Whichever side is correct, Califor nia s tate law is relevant to deciding whether the 1888 Deed indicated ht e grantors' intent to create a trust with the Government as trustee.
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b. Enforceable Duties of Trustee
The other critical difference between a trust where the Government is the trustee and a trust with a private entity as trustee - indeed, the difference that is decisive in this ca se - is the ability to enforce the trustee's duties. "The United States or a State hascapacity to take and hold property in trust, but in t he absence of a statute otherw ise providing the trust is unenforceable against the United States or a State." Restatement (Second) ofTrusts § 95 (emphasis added); see also Restatement (Second) of Trusts § 378 (same rule with respect to charitable trusts specifically). Thus, unless the Government has signaled its agreement, via statute, to as sume enforceable trustee duties, the "duties" it assumes as a trustee are non- enforceable. As Story makes clear, the Government can have three po ssible relationships with r espect to property donated for a charitable purpose: (1) in the absenc e of a statute authoriz ing acceptance of the conditional gift, the gift must be rejected; (2) if astatute authorizes the Government to accept the conditional gift but does not assumeenforceable trust duties, the Government may accept the gift, a char itable t rust will be created, but the obligations of trust ee are unenforceable against the Government; and (3) if a statute authorizes the Government to accept the conditional gif t and assumes enforceable trust duties, the Government may accept the gift, a charitable trust will be created, and the Government may be sued for breach of its duties as trustee.
[G]ifts to the United States which involveany duty, burden, or condition, or are made dependent upon some future performance by the United States, are not accepted by the Government unless by the expressauthority of Congress.. . . And Congress has on many occasions not only acceptedconditional gifts, but has provided means for the future acceptance and encouragement of special gifts to be devoted to particular purposes. . . . [I]n some instances Congress has been content to provide that the accepting and administering officials shall observe the terms and conditions of the gift. In others, it has gone fa rther, and provided means whereby the donor can through court action compel the administering official or agency to observe the terms and conditions of an accepted gift.
Story, 184 F.2d at 456.10

10 The Government's refusal to assume enfor ceable trustee duties is distinct from the Government's assertion of sovereign immunity . Sovereign immunity provides that the United States and the states, as sovereigns, cannot be sued without their consent, even if they would otherwise be liable. The refusal to assume enforceable duties of a trustee, by contrast, means the Government has not agreed to as sume any duty whose breach would give rise to liability. If the Governmentfails to abide by the fdi uciary obligations that would have been imposed on a priv ate or m unicipal trustee, it is not only sovereign immunity that bars the suit, but also the fact that no duty was assumed and thus no duty has been breached. Thus, even where the Government has waived sovereign immunity,
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With this framework in mind, the Court must examine the language of the 1866 Act to determine if, in addition to authorizing the acceptance ofconditional gifts, the 1866 Act signaled Congress's intent to accept fiduciary duties as a trustee. The Court finds that it does not.
Nowhere in the 1866 Act does Congress state that it will assume fiduciary duties, or that it takes on the duties of a trustee, or that failure to treat donated propertyin a manner consistent with the conditional donation will give rise tosuit. This brings the 1866 Act into contrast with other statutes where Congress has so provided. For instanc e, 2 U.S.C. § 159 provides: "The [Library of Congress Trust Fund] board m ay be sued in the United States District Court for the District of Columbia, whic h is h ereby given jurisdiction of such suits, for the purpose of enforcing the provisions of any trust accepted by it." 2 U.S.C. § 159. The 1866 Act does not hav e similar language.
Plaintiffs rely primarily on the following language from 14 Stat. 10 § 5: "And the said boar d of managers [of the National Home] are her eby authorized to receive all donations of money or property made by any person or persons for t he benefit of the [National Home], and to hold or dispose of the same for its sole and exclusive use ." 14 St at. 10 § 5 (emphasis added). As discussed above, this language authorizesthe receipt of conditional gifts. In essence, this statute is a promise to grantors that if a gift is given to the National Home, the gift will be used to benefit the National Home. Indeed, every statute authorizing the acceptance of conditional gifts makes such a promise. But is this an enforceable prom ise? Does this statutory language "go farther" and suggest that the Government assumes enforceable duties as a trustee with respect to any money or land donated? The Court cannot stretch the language of this statute so far as to find that the Government intended to assume enforc eable duties. T his is not a situation where Congress has "gone farther, and provided means"for enforcement of the trust duties. Story, 184 F.2d at 456. With respect todonations, the 1866 Act merely authorizes their acceptance, but does not assume fiduciary duties with respect to the donated property.
Plaintiffs' briefing attempts to conflate thesisue of whether a charitabel trust has been created with the issue of whether the Government has assu med enforceable fiduciary duties with respect to the beneficiaries. Much of Plaintiffs' briefingargues that the 1888 Deed cer ated a charitable trust. Plaintiffs cite to numerous cases where donations to the Government were held to have created a charitable trust. The Court agrees that this is such a case. The creation of a charitable trust, however, does not establish thatthe Government has also assumed enforceable fiduciary duties with respect to that trust.

there is no claim for breach of fiduciary duty if the Government has not accepted, and therefore not breached, a fiduciary duty.
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Plaintiffs concede that t he Government may only accept conditional gifts pursuant to statutory authority. (Suppl. Br. in Supp. of Opp'n 2.) However, Plaintiffs' position is that the Government assumes enforceable fiduciary duties as trustee any time it accepts a gift pursuant to such a statute. Plaintiffs do not believe Congress is required to "go farther" and assume fiduciary duties; rather, Plaintiffs assert that assumption of t hose f iduciary dutie s is either not necessary or is implied in any statute accepting conditional gifts. Plaintiffs explainthe crux of the issue succinctly:

Under the Government's proposed rule of decision, a fedear l agency could, as here, accept a s izeable donation under an instru ment that expressly conditions the transfer on the agency's commitment to use the property for specific purposes to benefit the public, but thereafter disclaim any obligation to honor that commitment unless Congress had explicitly authorized the agency to assume fiduciary obligations as to that [] property.

(Suppl. Br. in Supp. of Opp'n 1.) While this result may seem shocking, this is the result the law dictates, and Plaintiffs rely on nothing besides their incredulity to suggest otherwise.

i.

Plaintiffs' Authority - Federal Government as Trustee

The Court gave the parties leave tofile additional briefing solely onthe issue of charitable trusts. In granting this leave, the Cour t r equested that the parties specif ically address the issue: "If statutory, treaty, or regulatory authority is required [to enf orce trust obligations against the Government], the degree of clarity required in t he language of the statute, treaty, or regulation indicating the [G]overnment's intention to assume obligations as trustee." (Oct. 27th Order Req. Additional Br'g.) The Court also asked the parties to cite to any case enforcing trust obligations against the United States or a state. (Oct. 27th Order Req. Additional Br'g.) Despite being given leave to provide additional briefing onthis issue in particular, Plaintiffs were unable to find a single case where fiduciary trust duties were enforced against the federal government.

In Story, plaintiff was a real estate broker who provdi ed realty services to the Library of Congress Trust Fund Board. Story, 184 F.2d at 455. The plaintiff all eged that he procured a sale for the Library of Congress Trust Fund Board, but def endants - the individual members of the Board refused to pay the customary commission. Id. T he D. C. Circuit uphel d the district court's dismissal of the case for lack of subject matter jurisdiction. Id. at 461. The court held that the language in the statuteauthorizing suit in federal court for ber aches of the trust obligations did not authorize and provide a federal forum for all su its against the Library of Congress T rust Fund Board. Id. at 458-59. Story did not involve a party seeking to actually enforce trust obligations against the federal government. Moreover, Story involved a statute that by it s explicit terms provides for suits to enforce the trust obligatoi ns, 2 U.S.C. § 159, and istherefore distinguishable from the instant case where the statute authorizing the acceptance of gifts does not so provide. Indeed, it was the Story court that noted the difference betwe en statutes that merely authorize

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conditional gifts and those statutes that "go[] farther" and provide means toforce the government, through court action, to abide by the terms of the gift. Id. at 456.
Plaintiffs also cite United States v. Kingsley , 194 A.2d 735, 742 (N.J. 1963). In Kingsley, a decedent's will left his residuary estate (valued at$138,611.28) to the United States Government "to be used as the Government may see fit for the national defense of the country." Id. at 736. When the State of New Jersey levied a tax on t he estate, the federal government brought suit, claiming that the state of New Jersey was noet ntitled to impose a taxon the federal government. Id. at 737. The Kingsley court held that the estate tax imposed by the New Jersey stat e government was not a tax on the federal gov ernment, but was a tax on the testator. Id. 742. "[T]he tax is not onthe property passing under the will, nor is iton the person receiving it. The tax is the price laid upon the testator in re turn for the right of disposition. " Id. at 737. Although Kingsley dealt with a charitable gift to the federal government, the case did not involve any party seeking to enforce trustee duties on the government, and it is therefore inapposite.
United States v. Cerio, 831 F. Supp. 530 (E.D. Va. 1993) is similarly unavailing. ICnerio, a retired Coast Guard Captain left a testamentary gift to the United States Coast Guard Academy for the purpose of establishing a trust fund, the annual income of which was to be awarded to the graduating cadet who attains the highest gradepoint average in chemistry and physics.Id. at 531. However, the size of the gift was so large that each year, the proposed cadet would receive an award ranging from $65,000 to $130,000. Id. The Coast Guard believed that providing such a large gift to one cadet would disrupt its operations and interfere with the attainment of its goals. Id. The federal gov ernment brought suit to modify the terms of the trust under the cy pres doctrine, seeking court permission to spread the award over multiple cadets. Id. The Court held that the cy pres doctrine permitted the Coast Guard to aw ard the funds in a different manner, eliminating the result of one oversized monetary award to a singel cadet, while still adhering to the testator's wish that the funds be used to aawrd cadets who excelled in the sciences.Id. at 542-43.

The district court in Cerio did not analyze the statute that permitted the government to accept the
conditional testamentary gift. Importantly, in Cerio it was the government that decided to seek court relief before using the fundsin a manner that diverged from ht e testator's directed use. Had the government in Cerio operated under the framewor k explained in this order, it would have recognized that it was legallyentitled to use the donated funds asit desired without seeking court relief.

The government's conduct i n Cerio was admirable, if not legally necessary. As the Court has

explained, without a statute authorizing the acceptance of a condtiional gift, the Government may

not accept any gift that is conditioned on the Government's performance. A statute that permits

acceptance of a conditional gift but does not a

ssume fiduciary dut ies is essentially an

unenforceable promise that funds accepted pursuant to the stat ute will be used as the grantor

desires. And a statute that assumes enforceable fiduciary dutieswith respect to donated property

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DATE: March 16, 2012

provides an avenue whereby the Government can be compelled to use the donated property in accordance with the wishes of the grantor. In Cerio, the government appears to have taken its unenforceable promise seriously, and sought the imprimatur of a court before using the funds in a different manner than described inthe decedent's will. If the allegatoins of the FAC in the instant case are true, the Government has essentially ignored the unenforceable promise it made with respect to much of the donated land that is now part of the WLA Campus.
However, Cerio cannot be read to stand for the proposit ion that the Gov ernment assumes enforceable fiduciary duties simply by accepting land that is earmarked for a specific charitable purpose. The court in Cerio did not impose fiduciary duties on the government. (Indeed, the court permitted the gov ernment to use the donated property in a different manner than as the grantor required.) Rather, the government in Cerio decided it would honor its unenforceable promise and deviate from the express wishes of ht e grantor only with courtapproval. Plaintiffs in this case can hardly argue (and indeed, they hav e not) that the government's decision to seek court approval of its disposition of funds in Cerio amounts to a binding admission that it has assumed enforceable fiduciary duties in this case (or, more broadly, any time it accepts a gift to be used for charitable purposes).
ii. Plaintiffs' Authority - State Government as Trustee
Because state governments are also sovereigns,hte Court asked the parties to provide additional briefing on any c ase they f ound where a court enforced fiduc iary trust duties on a state government. (Oct. 27th Or der Req. Additional Br 'g.) Plaintiffs' cases involving charitable donations to state governments do not support its position.
In Big Sur Props. v. Mott, 62 Cal. App. 3d 99, 102 (1976), a grantor donated real property to the State of California to "be used in perpetuity as a public park . . . ." The deed also provided:
[N]o private right of way for vehicular travel or for the purpose of transporting, hauling or conveying timber, logs, tanbakr or any other product produced by logging operations on privately-owned land shall ever be granted to any person, firm or corporation upon or across any portion ofthe property conveyed to Grantee by this deed. This provision shall not impair or a ffect Grantee's authority . . . to provide means of ingress to and egress from said real property to provide ready access thereto by the public.
Id. The petitioner in Big Sur Props. filed a petition for writ of mandate against the State Department of Parks andRecreation when petitioner's application for vehicular access across the donated land was denied. Id. at 102-3. The court upheld the lower court's denial of the petition on the ground that the terms of the charitable trust prohibited the vehicular access. Id. at 103. This case does not involve a party seeking to impose fiduciary trust duties against the state, and

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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 32 of 41 Page ID #:1002 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

cannot be interpreted to mean thatthe state of California accepted enforceable trust duties when it accepted the deed conveying the land.
The case Plaintiffs cite that is mosftactually similar to the instant case isFitzgerald v. Baxter State Park Authority, 385 A.2d 189 (Me. 1978). InFitzgerald, former Maine Governor Percival Proctor Baxter deeded to the state of Maine 201,018 acres of land for the establishment of Baxter State Park and sums in excess of $1.5 million for thecare, operation, and maintenance of the park. Id. at 191. The deed conveyed the land to the state of Maine as trustee to hold the land in trust for the benefit of the people of Maine, subject to certain conditions on the use of the land. Among other conditions, the deed provided that the premises "forever shall be kept in their natural wild state and as a sanctuary for wild beasts and birds . . . ." Id. at 193. In 1974, Baxter State Park experienced a severe blowdown caused by natural conditions . Id. T he State intended to implement a cleanup program to remove the dead and dying trees in the area. Id. Plaintiffs, Maine citizens who frequented Baxter State Park, filed suit seeking an injunction of the cleanup process, arguing thatthe cleanup program approved by the staet exceeded the terms of the trust. Id. at 194-95. The lower court issued an injunction providing that the defendant was prohibited from using heavy equipment to effect the blowdown cleanup, but that the celarance could continue without the use of heavyequipment and in such a manner aswould not unduly disturb the terrain and natural environment. Id. at 191. The Maine Supreme Court upheld this injunction.
Although the Maine Supreme Court hedl that the state did have enforceable fiduciary duties to the public to abide by the terms of the trust,id. at 202, the case is distinguishable because the terms of the deed that creat ed t he trust were accepted by the Maine legislature via statute. "The legislature, in 12 M .R.S.A. § 900 et seq . (1964), has created the Ba xter State Park with enumerated statutory restrictions on use, duplicating those which Governor Baxter imposed in his deeds of trust." Id. at 195. Thus, while the deed created the charitable trust, it was the statutes that made the fiduciary duties enforceable against t he state. In the pres ent case, there is no analogous statute whereby the Government agreed to accept enforceable fiduciary duties.11

11 Both sides cite to cases involving land t hat the federal government holds in tr ust for Native American tribes. See, e.g., United States v. Navajo Nation, 537 U.S. 488 (2003); United States v. Mitchell (Mitchell I,)445 U.S. 535 (1980);United States v. Mitchell (Mitchell II), 463 U.S. 206 (1983);Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). The Court does not believe that these cases are di rectly controlling, especially given that, as has long been recognized, "Indian tribes o ccupy a unique status under our law." Nat'l Farmers Union Ins. Cos.v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985). In light of this unique status and the factthat trusts for the benefit of Native American tribes are generally created via congressional action as opposed toa charitable gift, the Court does not believe that the holdings from these cases are easily transferrable to cases not involving Native American tribes. However, to the extent these cases are analogous or, at the very least,
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 33 of 41 Page ID #:1003 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

Plaintiffs' other cited cases are less on point, as they do not involve priv ate gif ts given to a sovereign government for a charitable purpose.See Day v. Apoliona, 496 F.3d 1027 (9th Cir. 2007 (grant of landfrom federal governmentto State of Hawaii created enof rceable trust obligations); United States v. Swope, 16 F.2d 215 (8th Cir. 1926) (grant of land from federal government to State of New Mexico created enforceable trust obligations); In re Estate of Hart, 151 Cal. App. 2d 271 (1957) (concerning land given to County of Los Angeles, a non-sovereign); Cnty. of Solano v. Handlery, 155 Cal. App. 4th 566 (2007) (concerning l and given to Count y of Solano, a nonsovereign).
Thus, despite multiple rounds of briefing and instructions to brief particularly on this issue, Plaintiffs have been unable to find a single case, either st ate or f ederal, where a sovereign has been required to abide by fiduciary duties as a trustee. This paucity of cases is certainly not the result of Congress's hesitancy to accept conditional gifts. On the contrary, Congress has seen fit on a host of occasions to approve the acceptance of conditional gif ts. See, e.g., 16 U.S.C. § 468c (National Trust for Historic Preservation in t he United Stat es); 2 U.S.C. § 156 (Library of Congress); 44 U.S.C. § 2112 (N ational Archives); 38 U.S.C. § 8303 (Veterans' Benefits); 10 U.S.C. § 2601 (Armed Forces).12
For the foregoing reasons, the Coutr finds that the Governmenthas not assumed any enforceable fiduciary obligation with r espect to the charit able trust that was created by the 1888 Deed. Accordingly, the charitable trust claims (claims3, 4, and 5) are dismissed without leave to amend.
///
/// D. Plaintiffs' Rehabilitation Act Claims
Plaintiffs bring two claims under section 504 of the Rehab ilitation Act (the "Rehabilitation Act Claims"). First, Plaintiffs assertthat the Government established policies that facially discriminate against Plaintiffs because of their disabilities by : (1) denying Plaintiffs admission to housing programs because of their mental illness; and (2) refusing to provide services that are necessary for Plaintiffs to a ccess t he c are they need for their severe mental disabilities. (FAC ¶ 116.) Second, Plaintiffs assert that the Government denied Plaintiffs meaningful access to services by its systematic failure to provide permanent supportive housing as a reasonable accommodation.
instructive on how trust obligations arise when the federal government is a trustee, these cases support the notion that the federal government only assumes fiduciary duties when it explicitly does so via congressional action.
12 A more complete list of statutes aut horizing conditional gifts can be found in the appendix to Story, 184 F.2d at 461-62.
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 34 of 41 Page ID #:1004 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

(FAC ¶¶ 116-17, 297, 299.) Underhteir meaningful access claim, Plani tiffs assert that they cannot access VHA se rvices because they are individual s with severe mental disabilities who cannot complete applic ations or persist through intake processes without assistance. (FAC ¶ 117.) Under both claims, Plaintiffs seek the reasonable accommodation of permanent supportive housing. (FAC Req. for Relief.)
The Government attacks Plaintiffs' Rehabilitation Act claims on two grounds. First, with respect to both the facial discrimination and meaningful access claims, the Government argues the Veterans' Judicial Review Act ("VJRA"), 38 U.S.C. § 511, bars this Court's jurisdiction. Second, the Government claims Plaintiffs failed to properly allege their facial discrimination claim. (Mot. 13-17.)13
///
///
///
1. The Veterans' Judicial Review Act
Congress has provided exclusive channels for the re view of the DVA's decisions regarding the provision of benefits to veterans:
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and

13 The Government, in a footnote, also argues that Plaintiffs have failed to state a valid claim for meaningful access. (Mot. 16 n.10.) The Government argues that if Plaintiffs are attempting to force the DVA to provide a se rvice it does not already provide (permanent supportive housing), this would constitute afundamental alteration to the DVA's programs, an alteration Plaint iffs cannot compel thr ough a section 504 lawsuit. (Mot. 16 n.10.) Plaintiffs count er that thei r meaningful access claim does not seek a new substantive benefit (permanent supportive housing) as such. Rather, thefailure to provide permanent supportive housing is an obstacle (akin to the lack of a wheelchair ramp) that prevents them from obtaining access to those benefits that the Government already provides. (Opp'n 4.) Because Plaintiffs are not seeking a new substantive benefit, but rather seek an accommodation to allow them to access a benefit already provided to other veterans and to which Plaintiffs are ot herwise entitl ed, Plaintiffs have properly pled a valid meaningful access claim.
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 35 of 41 Page ID #:1005 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a). Thus, when a claimant file s for benefits with the DVA, the Secretary shall decide all ques tions of law and fact necessary to determine whether to provide the requested benefits. Id. A claimant may appeal the denial of a benefsit claim or other adverse decision to the Board of Veterans Appeals ("BVA"). Id. § 7104. The BVA's decisions are final decisions of the Secretary, and once the Secretary makes a finaldecision the decisions may not be reviewed. Id. § 511(a).14 The Government asserts that both the facial discrimination claim and the meaningful access claim are barred by the VJRA. (Mot. 13-14.)
Plaintiffs argue that § 511 applies only to individual benefit decisions, not systematic challenges to the benefits system. (Opp'n 5.) Plaintiffs are not seeking (as the Government would have the Court believe (Mot. 14)) rev iew of individual det erminations where the DVA rejected Plaintiffs' claims for benefits. Rather, Plani tiffs' Rehabilitation Act claimsattack system-wide structures and seek only prospective relief. (Mot. 5.) Thus, Plaintiffs argue that § 511 does not bar this action.
The Court agrees with Plaintiffs that § 511 does not prevent this Court from entertaining challenges to the structure of the DVA's benefits system.
Section 511(a) does not give the [Secretary]exclusive jurisdiction to construe laws affecting the provision of veterans benefits. Rather, it simply gives the [Secretary] authority to consider such questions when making a decision about benefits . . . and, more importantly for the questionof [the district court's] jurisdiction, prevents district courts from reviewing the Secretary's decision once made.
Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006). Under the rule as explained Binroudy, "the Secretary is the sole arbiter of benefits claims and issues of law and fact that arise during his disposition of those claims," but district courtsstill have jurisdiction to resolve disputes that affect the provision of benefits "as long as the Secretary has not actually decided them in the course of a benefits proceeding." Id. at 114.15
In the instant case, Plaintiffsare not seeking review of an advesr e determination on their claim for benefits. Indeed, the gist of the Rehabilitation Act claims is that without the reasonable
14 This rule is subject to certain exceptions not pertinent here. See 38 U.S.C. § 511(b).
15 The Court acknowledges that other cases have disapproved of Broudy, and that other circuits have read § 511 to bar a broader set of claims. See, e.g., Beamon v. Brown, 125 F.3d 965, 974 (6th Cir. 1997). In the absence of controlling authority from the United States Supreme Court or the Ninth Circuit, the Court is convinced by the reasoning in Broudy.
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 36 of 41 Page ID #:1006 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

accommodation urged by the lawsuit, Plaintiffsare unable "to challenge the conduct that caused the denial of access in the first place." (Pls.' Suppl. Br. in Supp. of Opp'n 1.) The same alleged denial of meaningful access to medical services also "effectively exclude[s] [Plaintiffs] from filing claims or receiving a 'decision' under [] § 511 regarding their denial of access." (Pls.' Suppl. Br. in Supp. of Opp'n 2.) Because the Secretary has not made a decision on individual Plaintiffs' benefits in the course of a benef its proceeding, the Court has jurisdiction to hear Plaint iffs' Rehabilitation Act claims.
2. Validity of Plaintiffs' Facial Discrimination Claim
Plaintiffs' first cause of action is for faciadl iscrimination under the Rehabilitation Act. Section 504 of the Rehabilitation Act provides:
No otherwise qualified individualwith a disability in the UnitedStates . . . shall, solely by reason of her or his dsiability, be excluded from theparticipation in, be denied the benefits of, or be subjected to discriminatoin under any program or activity receiving Federal financial assistance.
29 U.S.C. § 794(a). To establish a violation of section 504, a plai ntiff must show: "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solelyby reason of his disability; and(4) the program receives federal financial assistance." Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (internal citation omitted). Here, the parties dispuet whether Plaintiffs have properly alleged the third requirement for facial discrimination - i.e., whether Plaintiffs are denied benefits of the VA GLA program solely by reason of their disabilities. (Mot. 15-16; Opp'n 3-4.)
Plaintiffs point to two types of system-wide decisions made by the VA GLA that allegedly facially discriminate against Plaintiffs solely by reason of their disabilities. First, Plaintiffs allege that the VA GLA refuses Plaintiffs admission to housing programs currently offered because of Plaintiffs' severe mental disabilities or because they must take psychotropicmedication to treat their severe mental disabilities. (FAC ¶¶ 104, 116.) Second, Plaintiffs contend that the VA GLA's refusal to provide permanent supportive housing operates as an effective denial of treatment to veterans with severe mental disabilities; but the VA GLA does provide treat ment to veterans who do not have severe mental disabilities. (FAC ¶ 116. ) The Court will examine each of Plaintiffs' facial discrimination claims individually.
a. Admission to Existing Housing Programs
Currently, the VA GLA offers temporary shelter services through three types of programs: (1) the Domiciliary Residential Rehabilitation and TreatmentProgram ("Domiciliary") (FAC ¶ 104); (2) third party programs on the WLA Campus (FAC ¶ 106); and (3) the VAGLA's housing voucher program (FAC ¶¶ 113-14). Plaintiffs allege that the VA GL A refuses Plaintiffs adm ission to the existing
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 37 of 41 Page ID #:1007 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

housing p rograms because of their severe mental disabilities or because they must take psychotropic medication to treat their mental dis abilities. (FAC ¶¶ 104, 116.) Pla intiffs also contend that the VA GLA has not created alternative programs to veterans who ar e denied admission to existing programs because of the severity of their mental health disabilities. (FAC ¶¶ 19, 116.)
The Government points out that the FAC does not specify any written policy, regulation, or decision that on its face discriminates against Plaintiffs. (Mot. 16.) Indeed, it is unclear how the VA GLA refused Plaintiffs admission to existi ng housing programs offered by the VA GLA. If Plaintiffs' allegation of facial discriminationis based on the VA GLA refusing housing to individual Plaintiffs who sought housing benefit s, then the VJRA would bar this Court's review of those individual benefits determinations . See supra Part II.D.1. If, on the other hand, Plaintiffs are alleging that the VA GLA has a rule or policy - whether written or unwritten, wheth er formal or informal - that individuals with severe mental illness or who are on psychotropic medication are not eligible for housing benefits, this allegation does not appear in the FAC.
Plaintiffs have not pointed to any policy, plan, regualtion, or rule that isallegedly discriminatory on its face. Thus, this case is unlikeLovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002), the case upon which Plaintiffs rely t o s upport their claim that the VA GLA's system-wide decision to refuse Plaintiffs admission to housing programs is facially discriminatory. (FAC ¶ 19; Opp'n 3-4.) In Lovell, 303 F.3d at 1046, the plaintiffs alleged that the State of Hawaii excluded certain disabled people from its health insurance programs on the basis of their disabilities. The State of Hawaii had a fee-for-service ("FFS") Medicaid program. Id. at 1045. Persons eligible for this program had to have income no greater than 100% of the federal poverty level and assets not in excess of $2,000. Id. at 1045. The State elimni ated its FFS program, exceptfor aged, blind, or disabled individuals who ot herwise qualif ied for the FFS program. Id. At the same time the State eliminated its FFS program, the State of Hawaii launched a new health insurance program called QUEST. Id. A person was eligible for QUEST benefits if their "income was no more than 300% of the federal poverty level, unless they were aged,blind, or disabled." Id. It was undisputed that the QUEST program categorically excluded individuals on the basi s of their age, blindness, or disability. Id. at 1053. The Ninth Circuit held that "[w]hen viewed in relation to similarly situated nondisabled individuals, those disabled persons were denied QUEST coverage by the State solely because of their disabilities; that is, hadhtey been nondisabled, they would have received QUEST coverage." Id.
Plaintiffs assert that, like the disabled individuals in Lovell, they ar e explicitly excluded from participation in housing programs and other servic es of fered by the VA GLA because of the severity and nature of their disab ilities. ( FAC ¶ 19.) However, Lovell does not stand for the proposition that any exclusion of a disabled individual is considered facial discrimination. The Lovell court found that disabled people who otherwise qualify for health insurance were denied coverage because the terms of the program categorically excluded people with certain disabilities. See Lovell , 303 F.3d at 1053. Here, Plaintiffs have not sufficiently alleged any
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 38 of 41 Page ID #:1008 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

categorical exc lusion of disabled veterans fr om the VA GLA's housing program. Moreover, Plaintiffs hav e not provided any explanation as to how disabled veterans have been denied participation in the VA GLA's housing programs. Plaintiffs merely state that the VA GLA denies them access, without explaining whether this was a system-wide rule or whether Plaintiffs are merely alleging that their own individual attempts to obtain housing were denied for the reasons stated. Accordingly, the Court finds that Plaintiffs have not sufficiently alleged that the VA GLA's housing program facially discriminates against Plai ntiffs solely because o f t heir disabilities. Because this failure could potentially be remedied via amendment - for instance, if Plaintiffs can point to a rule or regulation (whether written or unwritten) that bars veterans with severe mental illness or who take psychotropic medication fr om obtaining housing provided by VA GLA - the Court will give Plaintiffs leave to amend this cause of action.
b. Refusal to Provide Permanent Supportive Housing
Plaintiffs argue that the VA GLA's refusal toprovide the reasonable accommodation of permanent supportive housing to access necessary medical tr eatment for the severely mentally disabled, while providing other services that are necessary for the treatment of veterans who do not have severe mental disabilities, is facially discriminatory. (FAC ¶ 19.) The Government also asserts that Plaintiffs' facial discrimination claim is indistinguishable from their meaningful access claim because both claims identify permanent supporti ve housing as a reasonab le ac commodation necessary for the severely mentally disabled to access treatment. (Reply 3.)
The difference between a facial challenge and a meaningful access challenge is straightforward. A facial challenge under the Rehabilitation Act cha llenges a statute, rule, regulation, policy, or decision that on its face treats individuals with a disability lessfavorably than individuals who do not have the disability. A mea ningful access challenge asserts that a statute, rule, regulation, policy, decision, or system, though neutral on its face , deprives individuals with a dis ability meaningful access to benefits to which they woul d otherwis e be entitled were it not for their disability. Plaintiffs concede that this is the distinction. (See Opp'n 3.)
With this dichotomy in mind, it is clear that Plaintiff s' allegation t hat they are being denied permanent supportive housing is a meaningful access claim, not a facial discrimination claim. Nevertheless, Plaintiffs have decided to bring the claim as both a facial challenge (claim 1) and a meaningful access challenge (claim 2). The VAGLA offers only temporary supportive housing; it does not offer permanent supportive housing as part of its services. This catalog of available benefits is not facially discriminaot ry. The VA GLA offers all vetreans - including those with severe mental illness and those without -temporary supportive housing. The VA GLA does not offer any veterans - neither those with severe mental illnesses nor those without - permanent supportive housing. To the extent the facialdiscrimination cause of action (claim 1) is grounded in the denial of permanent supportive housing, the claim is merely a trumped-up meaningful access claim.

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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 39 of 41 Page ID #:1009 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

Plaintiffs' true claim is that without permanent supportive housing, veterans with severe mental illness are unable to access the other health benefits the VA GLA provides. (FAC ¶ 116; Opp'n 3-4 ("The remedy Plaintiffs seek under both [t heir facial discrimination and meaningful access] theories is the reasonable accommodations of PSH[permanent supportive housing], without which they cannot meaningfully access VHAservices for which they are oht erwise eligible . . . .").) While Plaintiffs may pursue this theory - that the re fusal to prov ide permanent supportive housing constitutes a violation of the Rehabilitation Act u- nder their meaningful access claim (claim 2), this theory cannot support a claim for facial discrimination (claim 1).

The case on which Plaintiffs primarily rely to argue that their categoriz ation of the absenc e of permanent supportive housing as facial discrimination - Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) - is readily distinguishable. In Rodde, the plaintiffs challenged the closure of Rancho Los Amigos National Rehabilitation Center ("Ranc ho") under the Americans wit h Disabilities Act ("ADA").16 Id. at 993. InRodde, plaintiffs were Medi-Cal patei nts with special needs that required medical services offered at Rancho - the only ocunty hospital that specialized in rehabilitation and the acute car e of patient s with chronic diseases. Id. at 990. The Ninth Circuit held that the county's "planned cutback specifically targets services for the disabled." Id. at 997. The court found that if the countycloses Rancho, "it will reduce, and insome instances eliminate, necessary medical servic es for disabled Medi-Cal patient s while continuing to provide the medical care required and sought by Medi-Cal patients without disabilities." Id. at 9 98. The reduction or elimination of medical services by"[e]liminating entirely the only hospital of six that focuses on the
needs of disabled individuals . .. and that provides servicesdisproportionately required by the disabled and available nowhere else in the[c]ounty" is facially discriminatory.Id. at 997 (emphasis added).

As the fact pattern illustrates , Rodde was not the typical facial discrimination case. In Rodde,

there was no statute, regul ation, or rule that was discriminat ory on its face. Nevertheless, the

Rodde court held that the county's decision to

eliminate a service that it knew was

disproportionately required by the disabled and avaailble nowhere else was facially discriminatory.

This holding - that the conscious decision tolieminate an existing program disproportionately relied

on by individuals with disabilities can constitutefacial discrimination - illustrates the outer bounds

of a potential facial discrimination claim. To goone step further, as Plaintiffs argue, and hold that

inaction - the failure to provide a service thaits disproportionately needed by disabled individuals -

constitutes facial discrimination would destroy the distinction between facial discrimination and

denial of meaningful access.

16 While Rodde involved claims pursuant to the ADA, "[t]here is no significant difference in analysis of the rights and obligations c reated by the ADA and the Rehabilitation Act." Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1046 n.11 (9th Cir. 1999).
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Case 2:11-cv-04846-SJO-MRUWNITDEoDcuSmTeAnTt E70S DFISileTdR0IC3/T16C/O12URPTage 40 of 41 Page ID #:1010 CENTRAL DISTRICT OF CALIFORNIA
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DATE: March 16, 2012

Unlike the plaint iffs in Rodde, Plaintiffs here do not allege that the VA GLA has reduced or eliminated once-offered s ervices that are required to treat vete rans with severe disabilities. Rather, Plaintiffs would like to add services that would improve the t reatment for disabled veterans. This is an im portant distinction. Because Plaintiffs cannot point to any reduction or elimination of servic es that dispr oportionately affect disabled veterans, Rodde is factually distinguishable. The Court finds that extending the holding in Rodde to the facts of this case would destroy the distinction between facial discrimination and denial of meaningful access. "Section 504 seeks to assure evenhanded treat ment and t he opportunity for handicapped individuals to participate in and benefit from pr ograms r eceiving federal assistance. The [Rehabilitation] Act does not, however, guaranet e the handicapped equal results . . . ."Alexander v. Choate, 469 U.S. 287, 302-4 (1985) (internal citation omitted).
Here, all veterans are able to participate in theservices provided by the VA GLA and all veterans are subject to the sam e t emporary housing options. Even though the addition of permanent supportive housing may provide disabled veteransbetter medical treatment, the VA GLA program does not facially discriminate against disabl ed v eterans by excluding permanent supportive housing to all veterans.
Without Plaintiffs alleging a decision or policy t hat facially discriminates against v eterans with severe mental disabilities, Plaintiffs' facial discrimination claim fails as a matter of law.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion, disposing of the claims as follows:
(1) To the extent Claim One resst on the theory that there isa policy, rule, or regulation that on its face bars veterans with severe mental illness or who take psychotropic medication from obtaining an existing benefit offered by the VA GLA, the Claim is DISMISSED WITH LEAVE TO AMEND; to the extent Claim One rests on the theory that the Government fails to provide permanent supportive housing, t he Claim is DISMISSED WITHOUT LEAVE TO AMEND;
(2) The Motion is DENIED with respect to Claim Two; (3) Claims Three, Four, and Five are DISMISSED WITHOUT LEAVE TO AMEND; (4) The Motion is DENIED with respect to Claim Six.
IT IS SO ORDERED.

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VPC
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 </s> Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

2012 WL 12882704 Only the Westlaw citation is currently available.
United States District Court, C.D. California.
Gregory VALENTINI, et al. v.
Eric SHINSEKI, et al.
CASE NO.: CV 11-04846 SJO (MRWx) |
Filed 06/19/2012
Attorneys and Law Firms
Mark D. Rosenbaum, Public Counsel, Adam Murray, Amos E. Hartston, Elizabeth Haman Kugler, Melissa A. Tyner, Inner City Law Center, David B. Sapp, Hector O. Villagra, Peter J. Eliasberg, ACLU Foundation of Southern California, David Eric Shapland, Jacob Kevin Poorman, John C. Ulin, Arnold & Porter LLP, Gary Lee Blasi, Ucla School of Law, James Jacob Finsten, Lurie, Zepeda, Schmalz, Hogan & Martin APC, Ronald L. Olson, Munger Tolles & Olson, Los Angeles, CA, Jonathan Massey, Massey & Gail LLP, Washington, DC, Laurence H. Tribe, Harvard Law School, Cambridge, MA, Leonard A. Gail, Massey & Gail LLC, Chicago, IL, for Gregory Valentini, et al.
Elisabeth Layton, Karen S. Bloom, Jennie L. Kneedler, United States Department of Justice, Washington, DC, Alarice M. Medrano, AUSA—Office of US Attorney, Los Angeles, CA, for Eric Shinseki, et al.
PROCEEDINGS:ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR RECONSIDERATION [Docket No. 83]
THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
*1 This matter is before the Court on Defendants Eric
1

Shinseki and Donna M. Beiter’s (collectively, “Defendants” or “Government”) Motion for Reconsideration (“Motion”), filed on May 25, 2012. Plaintiffs filed an Opposition (“Opposition”), to which the Government replied (“Reply”). The Court found this matter suitable for disposition without oral argument and vacated the hearing scheduled for June 25, 2012. See Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the Government’s Motion for Reconsideration.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court’s March 16, 2012 Order extensively details the allegations in the First Amended Complaint (“FAC”), which the Court will not endeavor to restate here. In short, Plaintiffs in this case are severely disabled veterans with mental disabilities, brain injuries, or both.1 (See FAC ¶¶ 8-17, Aug. 12, 2011, ECF No. 24.) The FAC seeks redress for various harms Plaintiffs have allegedly suffered due to: (1) Defendants’ failure to provide meaningful access to disability benefits to which Plaintiffs are entitled; and (2) Defendants’ failure to comply with procedural requirements and misuse of land that might otherwise be used to provide services to veterans. (See generally FAC.) The FAC attempted to bring six causes of action against Defendants: one claim for violations of the Administrative Procedure Act, two claims for violations of the Rehabilitation Act, and three claims for violations of the Government’s duties as trustee of a charitable trust. (See generally FAC.) Defendants filed a Motion to Dismiss, which the Court granted in part and denied in part. The Court permitted two of Plaintiffs’ six claims to proceed. (See generally Mar. 16, 2012 Order, ECF No. 70.)
The Government argued in its Motion to Dismiss that the Veterans’ Judicial Review Act (“VJRA”) divests this Court of jurisdiction over Plaintiffs’ two Rehabilitation Act claims. (Mot. to Dismiss 1315, Oct. 7, 2011, ECF No. 32.) Plaintiffs opposed this argument, initially citing the Ninth Circuit panel decision in the case Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011), rev’d en banc, ––– F.3d. ––––, 2012 WL 1574288 (9th Cir. May 7, 2012). (Opp’n to Mot. to Dismiss 46.) However, after Plaintiffs filed their opposition brief to Defendants’ Motion to Dismiss, the Ninth Circuit vacated the panel decision and agreed to hear the Veterans for

Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

Common Sense case (“VCS”) en banc. Accordingly, this Court was required to determine whether it had jurisdiction over Plaintiffs’ Rehabilitation Act claims relying on authority other than VCS. The Court performed the analysis and, primarily relying on the D.C. Circuit’s decision in Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006), determined that it did have jurisdiction to rule on Plaintiffs’ two Rehabilitation Act claims. (Mar. 16, 2012 Order 35-36.) Reaching the merits, the Court found that Plaintiffs failed to state a claim for facial discrimination, and dismissed that cause of action with leave to amend. (Mar. 16, 2012 Order 36-40.) However, the Court found that Plaintiffs adequately stated a claim for denial of meaningful access under the Rehabilitation Act, and permitted that claim to go forward. (Mar. 16, 2012 Order 34 n.13.) The other claim that survived the Government’s Motion to Dismiss was Plaintiffs’ claim for violation of the Administrative Procedures Act (“APA”). (Mar. 16, 2012 Order 18.) In the briefing on the Motion to Dismiss, the Government did not argue that the VJRA divested the Court of jurisdiction over Plaintiffs’ APA claim.
*2 On May 7, 2012, the Ninth Circuit handed down its en banc decision in VCS. Veterans for Common Sense v. Shinseki, ––– F.3d ––––, 2012 WL 1574288 (9th Cir. May 7, 2012) (en banc). The Government filed the instant Motion for Reconsideration on May 25, 2012. The Government argues that, in light of the en banc decision in VCS, this Court lacks jurisdiction over both of Plaintiffs’ remaining claims. (See generally Mot., May 25, 2012, ECF No. 83.) Accordingly, the Government seeks reconsideration of the Court’s March 16, 2012 Order, which exercised jurisdiction over Plaintiffs’ Rehabilitation Act claims and Administrative Procedure Act claim.
II. DISCUSSION
A. Veterans for Common Sense
In VCS, two organizations representing their members—veterans seeking mental health care benefits—sued officials in the Department of Veterans Affairs. The lawsuit raised three arguments: (1) the Veterans Health Administration (“VHA”) used procedures that delayed care and lacked procedures for the veterans to expedite the care, which the plaintiffs claimed violated the Due Process Clause; (2) the Veterans
2

Benefits Administration subjected veterans to delays in the adjudication and resolution of their disability compensation claims, allegedly violating the APA and the Due Process Clause; and (3) the Veterans Benefits Administration’s practices and procedures—such as the absence of trial-like procedures at the Department of Veterans Affairs regional offices—allegedly violated veterans’ constitutional rights. VCS, 2012 WL 1574288, at *2-3.
As in the instant case, the Government argued in VCS that the VJRA divested the trial court of jurisdiction to entertain these claims. Section 511 of the VJRA provides:
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a). The Ninth Circuit engaged in a thorough review of the history of the VJRA. VCS, 2012 WL 1574288, at *4-10. The VCS court noted that “the VJRA supplies two independent means by which [federal district courts] are disqualified from hearing veterans’ suits concerning their benefits.” The first is the prohibition in § 511 (“may not be reviewed by ... any court....”); the second is Congress’s decision to confer exclusive jurisdiction over such claims to the Veterans Court and the Federal Circuit. “Together, these provisions demonstrate that Congress was quite serious about limiting our jurisdiction over anything dealing with the provision of veterans’ benefits.” Id. at *7 (emphasis added).
After reviewing a number of cases from other circuits, the VCS court concluded that “§ 511 precludes jurisdiction over a claim if it requires the district court to review VA decisions that relate to benefits decisions, including any decision made by the Secretary in the course of making

Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

benefits determinations.” Id. at *10 (internal quotation marks and citation omitted). “This preclusion extends not only to cases where adjudicating veterans’ claims requires the district court to determine whether the VA acted properly in handling a veteran’s request for benefits, but also to those decisions that may affect such cases.” Id. (emphasis added).
*3 Applying this standard to the claims before it, the VCS court held that it had no jurisdiction over two of the claims, but did have jurisdiction over the third. The Court noted that the first two causes of action argued that the plaintiffs were subjected to unreasonable delays, either in provision of their mental health care or in the adjudication of their disability compensation claims. The court noted that “Section 511 undoubtedly would deprive us of jurisdiction to consider an individual veteran’s claim that the VA unreasonable delayed his mental health care.” Id. at *11 (emphasis added). The court was unpersuaded by plaintiffs’ argument that because their claim challenged average delays rather than the actual delay in any individual veteran’s case, the resolution of the claim did not involve questions of law or fact necessary to a decision about providing benefits to an individual veteran. The court reasoned:
[T]he average processing time does not cause veterans injury; it is only their processing time that is relevant.... The fact that VCS couches its complaint in terms of average delays cannot disguise the fact that it is, fundamentally, a challenge to thousands of individual mental health benefits decisions made by the VA. In order to determine whether the average delays alleged by VCS are unreasonable, the district court would have to review the circumstances surrounding the VA’s provision of benefits to individual veterans. The district court does not acquire jurisdiction over VCS’s complaint just because VCS challenges many benefits decisions rather than a single decision.
3

Id. at *12.
The VCS court did exercise jurisdiction over the third cause of action, which alleged that the lack of adequate procedures when veterans file claims for service-related disability benefits denied veterans procedural due process. The court held that the “jurisdictional question is a complex and close one.” Id. at *16. Nevertheless, the court exercised jurisdiction because this claim did not require the court to review decisions affecting the provision of benefits for any individual claimants.
VCS does not challenge decisions at all. A consideration of the constitutionality of the procedures in place, which frame the system by which a veteran presents his claims to the VA, is different than a consideration of the decisions that emanate through the course of the presentation of those claims. In this respect, VCS does not ask us to review the decisions of the VA in the cases of individual veterans, but to consider, in the “generality of cases,” the risk of erroneous deprivation inherent in the existing procedures compared to the probable value of the additional procedures requested by VCS.
Id. at *17. Synthesizing these holdings, the critical inquiry is whether adjudication of the claim would require the district court to assess how any individual veteran’s claim is handled (whether on its own, or in tandem with other veterans’ claims). The VCS court held that it did have jurisdiction over the third claim because an analysis of the Mathews v. Eldridge factors, 424 U.S. 319 (1976), can be conducted without examining any individual veteran’s claim; the analysis could be conducted in the abstract, or the “generality of cases.” VCS, 2012 WL 1574288, at *17. However, an allegation that the VA’s procedures result in unreasonable average delays would require an inquiry into the length of those average delays; but the average delays are really just a compilation of the individual delays experienced in individual cases.
With this framework in mind, the Court turns to the two causes of action remaining in the instant case to determine

Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

if the VJRA divests the Court of jurisdiction.
B. Rehabilitation Act Claim
In the remaining Rehabilitation Act claim, Plaintiffs argue that the Government denied them meaningful access to services because they were not given the reasonable accommodation of permanent supportive housing. (FAC ¶ 117.) Plaintiffs assert that they cannot access VHA services because they are individuals with severe mental disabilities who cannot complete applications or persist through intake processes without assistance. (FAC ¶ 117.) Plaintiffs pray the Court to declare that the Government is denying Plaintiffs meaningful access to the VHA benefits offered by the Veterans Affairs Greater Los Angeles (“VA GLA”) solely by virtue of their disability. (FAC Req. for Relief.) Plaintiffs also seek an injunction directing that the Government provide Plaintiffs permanent supportive housing as a reasonable accommodation for their disabilities. (FAC Req. for Relief.)
*4 In the briefing on the instant Motion, Plaintiffs attempt to draw parallels between their Rehabilitation Act claim and the claim over which the Ninth Circuit exercised jurisdiction in VCS. (Opp’n 2, June 4, 2012, ECF No. 84.) “Just as the claims in VCS challenging the procedures that frame the benefits adjudication system can be evaluated independent of DVA decisions about any individual veteran’s eligibility for benefits, the violations of the [Rehabilitation Act] inherent in the VHA service delivery system can be determined without regard to DVA decisions regarding any individual veteran’s entitlement to VHA services.” (Opp’n 2.) As enunciated in VCS, however, the critical inquiry is not whether the lawsuit concerns veterans’ entitlement to benefits. The VJRA precludes district courts from hearing a broader variety of cases than simply those cases challenging benefit entitlement decisions. Indeed, the two claims in VCS over which the Ninth Circuit held it lacked jurisdiction did not challenge entitlement to benefits; they challenged the average delays in provision of benefits and resolution of claims for compensation.
The test is whether, more broadly, the Court would be required to review how benefits were or are provided to any individual veteran. Applying this rule to the instant case, whether a desired accommodation—such as permanent supportive housing—is needed to give veterans meaningful access to their disability benefits
4

does depend on a review and analysis of individual veterans’ situations, and thus the VJRA bars this claim. To decide whether this accommodation is necessary, the Court would have to determine whether particular veterans are capable of meaningfully accessing their benefits without the aid of the desired accommodation. As the Government notes, different veterans who are Plaintiffs in this case have different objections to the VA’s delivery based on their unique disabilities and circumstances: “Some say they cannot travel to the VA campus, FAC ¶¶ 117, 134, 198, while others allege they cannot negotiate the benefits application process, id. ¶¶ 117, 149, 188, 196, 217. The [Rehabilitation Act] claim is not ‘one size fits all,’ and is precluded under VCS.” (Reply 2-3, June 7, 2012, ECF No. 85.)
Even if the alleged barrier to access were the same for each afflicted veteran, the Court would still be required to assess the individual circumstances of each veteran to see if he or she is being denied meaningful access under the current system, and whether the requested accommodation is a reasonable remedy to that situation. This veteran-specific review is precisely what the Ninth Circuit has held district courts cannot entertain under the VJRA. The need for the reasonable accommodation of permanent supportive housing cannot be decided in the abstract, without considering the particular disabilities and circumstances of individual veterans; thus, this case is not like the claim over which the Ninth Circuit exercised jurisdiction in VCS, where the Court held that it could analyze the need for trial-like procedures in the “generality of cases.” VCS, 2012 WL 1574288, at *17. As discussed above, the Ninth Circuit noted that district courts would certainly lack jurisdiction over the claim of an individual veteran that his or her benefits were unduly delayed, and “[t]he district court does not acquire jurisdiction over VCS’s complaint just because VCS challenges many benefits decisions rather than a single decision.” VCS, 2012 WL 1574288, at *12. So too here, an individual veteran would certainly be precluded from arguing that the failure to provide him or her specifically with permanent supportive housing results in denial of meaningful access to benefits. Such a claim would necessarily require the Court to review “questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. § 511(a). Plaintiffs cannot avoid this jurisdictional problem by joining together and challenging the “system,” rather than challenging an individual denial of permanent supportive housing.2
*5 In light of the Ninth Circuit’s en banc decision in VCS,

Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

the Court lacks jurisdiction over Plaintiffs’ Rehabilitation Act claim. Accordingly, the Motion is GRANTED with respect to this claim, and the second cause of action is DISMISSED WITHOUT LEAVE TO AMEND.
C. Administrative Procedure Act Claim
Plaintiffs’ APA claim asserts that land deals entered into by VA GLA were improperly executed in violation of the APA. (FAC ¶ 312.) Plaintiffs allege that they have suffered procedural and substantive injuries. (FAC ¶ 313.) Plaintiffs seek an injunction prohibiting VA GLA from executing under 38 U.S.C. §§ 8151-8153 (the statutes that authorize enhanced sharing agreements) any agreements that do not concern the sharing of health-care resources. (FAC Req. for Relief.) Plaintiffs pray the Court to declare that the Government violated 38 U.S.C. §§ 8151-8153 and 8161-8169 by entering into a number of enhanced sharing agreements unauthorized by any law or regulation. (FAC Req. for Relief.)
Just as in the briefing on the earlier Motion to Dismiss, the Government again attempts to characterize the relief sought in the APA claim as a mandate that the Government provide permanent supportive housing. (Mot. 12; Mot. to Dismiss 4-5.) This is not the relief sought in the APA claim. Plaintiffs simply seek a declaration that the disputed land-use agreements were unauthorized by law or regulation. (FAC Req. for Relief.) The Court has already noted:
In their APA claim, Plaintiffs are not seeking an injunction ordering the Government to provide permanent supportive housing. Plaintiffs merely seek an injunction forbidding the Government from executing agreements as [Enhanced Sharing Agreements] that do not concern sharing of health-care resources.
(Mar. 16, 2012 Order 13.) If Plaintiffs prevail on this claim and the existing land-use agreements are deemed unlawful, Plaintiffs certainly hope that this land will be used to construct permanent supportive housing for their
5

benefit. But this is not the relief sought in this claim; Plaintiffs recognize that if the existing land-use agreements are determined to be unlawful, the Government could choose to use the land for any lawful purpose, and the Government might not choose to use the land to create permanent supportive housing.
Indeed, it is clear from the Complaint that the APA claim does not directly concern the provision of veterans benefits at all. The direct focus of the APA claim is the alleged unlawfulness of the Government’s land-use agreements. The VJRA’s limitation on district courts’ jurisdiction is not implicated simply because the resolution of this claim could possibly have some downstream effect on the provision of veterans benefits (i.e., if the current land-use agreements are declared unlawful, the Government might decide to use the land to provide permanent supportive housing).
Most importantly, the Court is capable of resolving the APA claim without the need to analyze the particular circumstances of any individual veteran. Resolution of the APA claim necessitates only a review of the content of the land-use agreements, a review of the procedures the Government followed in entering those land-use agreements, and an analysis of whether the procedures followed and the content of the deals complied with the applicable law. The Court will not be required to conduct inquiry into any individual veteran’s request for benefits in order to determine if the land-use agreements were lawfully entered.
*6 The Court finds that the VJRA has no bearing on Plaintiffs’ APA claim. The Motion is DENIED with respect to this claim.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion, disposing of the claims as follows:
(1) The Court GRANTS the Motion with respect to the Rehabilitation Act claim and DISMISSES the claim without leave to amend;
(2) The Court DENIES the Motion with respect to the Administrative Procedure Act claim.
IT IS SO ORDERED.

Valentini v. Shinseki, Not Reported in Fed. Supp. (2012)

All Citations

Not Reported in Fed. Supp., 2012 WL 12882704 Footnotes

1

The individual Plaintiffs are joined by the Vietnam Veterans of America, which asserts associational standing on

behalf of its members. (FAC ¶ 45; Opp’n to Mot. to Dismiss 1 n.1, Oct. 21, 2011, ECF No. 35.)

2

In the Court’s earlier March 16, 2012 Order, the Court held that the critical inquiry to determine if the VJRA barred a

claim was whether the claim challenged a systemic problem or whether it challenged an individual benefit

determination. (Mar. 16, 2012 Order 34-36.) The Ninth Circuit has now held otherwise. Even challenges to

system-wide procedures or practices are barred by the VJRA if resolution of the claim “implicates questions of law

and fact regarding the appropriate method of providing benefits to individual veterans.” VCS, 2012 WL 1574288, at

*13.

6

 </s> West LA, CA Matter Principles for a Partnership and Framework for Settlement
By and Between the U.S. Department of Veterans Affairs and Representatives of the Plaintiffs - Valentini v. McDonald

Preamble: This "Principles for a Partnership and Framework for Settlement" ("Principles Document")

is between the U.S. Department of Veterans Affairs ("VA"), and representatives of the plaintiffs in the

Valentini v. McDonald case (C. D. Cal. No. 11-4846; 9th Cir. Nos. 13-56836, 13-56842, 13-56880, 13-

56887), (together, the "parties"), and is dated ~v~ '2.1?

, 2015.

I. Objective: Consistent with VA's statutory obligations and mission to serve our nation's veterans, VA and the representatives of the plaintiffs in Valentini v. McDonald intend to work together as partners, in coordination with key Federal, State, local, and community stakeholders and charitable and philanthropic entities to end veteran homelessness in Greater LA in 2015 and beyond. To measure success in meeting this objective, the parties will help facilitate and support a count of homeless veterans in January, 2016.

II. Immediate Actions: Upon execution of the Principles Document, the parties will undertake the following actions in support of the above objective:

Both parties will:

1. Cooperate and work together in good faith, which will be demonstrated by direct involvement and commitment to the objective described above and actions set out below, by the Secretary of Veterans Affairs and plaintiffs' representative, Ron Olson, Esq.

2. Relying on appropriate homelessness and mental health experts, develop a written veteran homelessness strategy and action plan for Greater LA no later than 2/13/2015. This strategy and action plan will build upon plans that the parties' experts have developed, and reflect the parties' intent to implement improvements in care and services for homeless veterans, consistent with best practices and evidence-based approaches under the Housing First model. The strategy and action plan will also describe how these efforts will be carried out in coordination with pertinent Federal, State, & local authorities, community partners, and charitable & philanthropic entities.

3. After soliciting input from pertinent stakeholders including legislators, Veteran Service Organizations (VSOs), State & local authorities, and the local community as described in Paragraph 7 below, coordinate to finalize a New Master Plan for VA's West LA campus by 10/16/2015. A key purpose of the New Master Plan will be to set out the most effective use of the campus for veterans, particularly for homeless veterans, including underserved populations, such as female veterans, aging veterans, and those who are severely physically or mentally disabled, and the process by which that use will be implemented. The primary considerations will be: (a) the provision of appropriate levels of bridge housing and permanent supportive housing on the campus, either in renovated existing buildings or newly constructed facilities, while taking into account the parties' assessment of available housing units available in the Greater LA community; (b) respect for individual veteran choices on whether to seek housing at VA's West LA campus or in the local community; (c) parameters of applicable law, including but not limited to the appropriate integration of persons with disabilities into the community and applicable environmental and historic preservation laws, regulations, and consultation requirements.

4. Coordinate a unified, positive message to stakeholders, the press, and the community.
5. Coordinate to file, by no later than 1/30/2015, a joint motion in the District Court for an indicative ruling that, in light of the parties' commitment to work as partners, the District Court would vacate its judgment in Valentini v. McDonald, and all substantive decisions and orders of the District Court, including but not limited to those entered by the District Court on 3/16/12, 6/19/12, 8/29/13, and 1/8/15, if the Court of Appeals for the Ninth Circuit remanded the case for that purpose; and coordinate to file additional pleadings in the District Court and in the Ninth Circuit as necessary to achieve that objective; as well as pleadings necessary to effect a dismissal without prejudice of the entire action under the Federal Rules of Civil Procedure Rule 41 (a) following the District Court's entry of its order vacating the judgment and the orders listed in this sentence. Each party will be responsible for its own costs and fees.
6. Develop an exit strategy for those non-VA entities now located at VA's West LA campus whose use of property at VA's West LA campus does not both: (a) comply with applicable law; and (b) fit within the New Master Plan referenced in Paragraph 3. Such exit strategies must be lawful, present a minimum level of litigation risk and expense to the Government, and avoid significant adverse impacts to veteran care and services.
VA will:
7. Engage VA experts and a reputable urban planning firm by 6/15/2015, to assist VA in developing an optimal New Master Plan for the West LA campus. To this end, VA will establish a timeline and framework for receiving and evaluating input from relevant stakeholders, including: VA experts; the plaintiffs' representatives; legislators; outside experts; and VSOs. Pending development and approval of the New Master Plan for the West LA campus, VA will not enter into or renew any lease or other land use agreement that would either: (a) fail to comply with applicable law or (b) interfere with the New Master Plan -- including the existing Enhanced Sharing Agreements at VA's West LA campus.
8. Designate a national expert on homelessness, who will help develop the strategy and action plan for ending veteran homelessness in Greater LA, and be responsible for overseeing the execution of homelessness strategy and action plan referred to in Paragraph 2 and the New Master Plan. This leader will: (a) have a deep understanding of the pertinent issues, and superior collaborative skills; (b) enjoy the trust of both VA leadership as well as the key stakeholders; (c) operate in a transparent manner and be accountable to VA leadership at the highest levels; (d) serve as a Special Assistant to the VA Secretary, reporting directly to and regularly updating the Secretary on matters related to this effort; and (e) receive the necessary clinical and administrative support resources, support, authority, and ties to VA's leading clinical and mental health experts, to achieve the objectives of this agreement.
9. Include the objective and goals of the Principles Document and the New Master Plan in VA's annual Strategic Capital Investment Plan (SCIP) ten year planning process.
1o. Ensure that those employees assigned to this effort are highly competent and committed to
achieving the goal of ending veteran homelessness in Greater LA by 2015.
2.

Plaintiffs' Representatives will:
11. Form a 501 (c)(3) non-profit corporation (hereinafter "the Non-Profit"). The Non-Profit's mission will be to work with VA, Federal, State, and local authorities, community partners, and charitable & philanthropic entities, to help meet the objective and goals of this Principles Document.
12. Identify, and when appropriate make introductions to: stakeholders, decision-makers, housing and homelessness experts, State and local political leaders, charitable and philanthropic entities, and others who wish to contribute or provide resources to this effort.
Ill. Actions Beginning Friday (1/23/2015):
13. Before close of business on Friday (1 /23/2015), the parties will confirm with one another that the actions described in Paragraphs 1-12 are underway. Thereafter, the VA Secretary will visit the Greater LA area the week of Monday 1/26/2015, and participate in public events with the plaintiffs' representatives, to announce this new partnership and commitment to addressing veteran homelessness in Greater LA.
IV. Additional Terms:
14. The Principles Document is not intended to be enforceable in any court, but is expected to be pursued by the parties to achieve and sustain the goals and objectives contained herein, for the benefit of our nation's veterans.
15. The Principles Document is subject to otherwise applicable legal obligations and authorities.
(Signature Lines Below)

Plaintiffs' Representative, on behalf of all pl~~ff

By (Print Name ·

. ~

U.S. Department of Veterans Affairs:

A. By (Print Name): ~

IV"< Q.!::df\[fu.i;:J

Sign Name:

~~ ~

Title:

SECRJ~

Date:

(JY;}.J J fll'"ls1 2 '£' , 'li0\:S""'
3.

 </s> Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 1 of 36
(MRWx),CLOSED,DISCOVERY,STAYED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:11−cv−04846−SJO−MRW

Gregory Valentini et al v. Eric Shinseki et al Assigned to: Judge S. James Otero Referred to: Magistrate Judge Michael R. Wilner Case in other court: 9th CCA, 13−56836
9th CCA, 13−56842
9th CCA, 13−56880
9th CCA, 13−56887 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/08/2011 Date Terminated: 08/29/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Gregory Valentini on behalf of themselves and all those similarly situated

represented by Adam Murray Inner City Law Center 1309 East Seventh Street Los Angeles, CA 90021 213−891−2880 Fax: 213−891−2888 Email: amurray@innercitylaw.org ATTORNEY TO BE NOTICED

Amos E Hartston Inner City Law Center 1309 East Seventh Street Los Angeles, CA 90021 213−891−2880 Fax: 213−891−2888 Email: ahartston@innercitylaw.org ATTORNEY TO BE NOTICED

David B Sapp ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5220 Fax: 213−417−2220 Email: dsapp@aclu−sc.org ATTORNEY TO BE NOTICED

David Eric Shapland Arnold & Porter Kaye Scholer LLP 777 South Figueroa Street 44th Floor Los Angeles, CA 90017−5844 213−243−4238 Fax: 213−243−4199 Email: eric.shapland@apks.com ATTORNEY TO BE NOTICED

Elizabeth Haman Kugler Inner City Law Center 1309 East Seventh Street Los Angeles, CA 90021 213−891−2880 Fax: 213−891−2888 Email: ehaman@gmail.com ATTORNEY TO BE NOTICED

Gary Lee Blasi UCLA School of Law

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 2 of 36
405 Hilgard Avenue Los Angeles, CA 90024 310−206−9431 Fax: 310−206−1234 Email: blasi@law.ucla.edu ATTORNEY TO BE NOTICED
Hector O Villagra ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5220 Fax: 213−417−2220 Email: hvillagra@aclu−sc.org ATTORNEY TO BE NOTICED
Jacob Kevin Poorman Arnold & Porter LLP 777 South Figueroa Street Los Angeles, CA 90017 213−243−4228 Fax: 213−243−4199 Email: jacob.poorman@aporter.com ATTORNEY TO BE NOTICED
James Jacob Finsten Lurie, Zepeda, Schmalz, Hogan & Martin APC 1875 Century Park East, Suite 2100 Los Angeles, CA 90067−2574 310−274−8700 Fax: 310−274−2798 Email: jfinsten@lurie−zepeda.com ATTORNEY TO BE NOTICED
John Michael Rappaport Munger Tolles & Olson 355 South Grand Avenue 35th Floor Los Angeles, CA 90071 213−683−9586 Fax: 213−683−5186 Email: john.rappaport@mto.com TERMINATED: 01/02/2013
John C Ulin Arnold and Porter LLP 777 South Figueroa Street 44th Fl Los Angeles, CA 90017−5844 213−243−4000 Fax: 213−243−4199 Email: john.ulin@aporter.com ATTORNEY TO BE NOTICED
Jonathan Massey Massey & Gail LLP 1325 G Street NW Suite 500 Washington, DC 20005 202−652−4511 Fax: 312−379−0467 Email: jmassey@masseygail.com PRO HAC VICE ATTORNEY TO BE NOTICED
Laurence H Tribe Harvard Law School

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 3 of 36

1575 Massachusetts Avenue Hauser 420 Cambridge, MA 02138 617−495−4621 Email: larry@tribelaw.com ATTORNEY TO BE NOTICED

Leonard A Gail Massey & Gail LLC 50 East Washington Street Suite 400 Chicago, IL 60602 312−283−1590 Fax: 312−379−0467 Email: lgail@masseygail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Mark D Rosenbaum Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: mrosenbaum@publiccounsel.org ATTORNEY TO BE NOTICED

Melissa A Tyner Inner City Law Center 1309 East Seventh Street Los Angeles, CA 90021 213−891−2880 Fax: 213−891−2888 Email: mtyner@innercitylaw.org ATTORNEY TO BE NOTICED

Peter J Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5228 Fax: 213−977−5297 Email: peliasberg@aclusocal.org ATTORNEY TO BE NOTICED

Ronald L Olson Munger Tolles & Olson 355 S Grand Ave, 35th Fl Los Angeles, CA 90071−1560 213−683−9100 Fax: 213−687−3702 Email: ron.olson@mto.com ATTORNEY TO BE NOTICED

Plaintiff
Adrian Mararu on behalf of themselves and all those similarly situated

represented by Adam Murray (See above for address) ATTORNEY TO BE NOTICED

Amos E Hartston (See above for address) ATTORNEY TO BE NOTICED

David B Sapp (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 4 of 36

Plaintiff

David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Haman Kugler (See above for address) ATTORNEY TO BE NOTICED
Gary Lee Blasi (See above for address) ATTORNEY TO BE NOTICED
Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED
Jacob Kevin Poorman (See above for address) ATTORNEY TO BE NOTICED
James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED
John Michael Rappaport (See above for address) TERMINATED: 01/02/2013
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Jonathan Massey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED
Leonard A Gail (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Melissa A Tyner (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 5 of 36

Jane Doe on behalf of themselves and all those similarly situated

represented by Adam Murray (See above for address) ATTORNEY TO BE NOTICED

Amos E Hartston (See above for address) ATTORNEY TO BE NOTICED

David B Sapp (See above for address) ATTORNEY TO BE NOTICED

David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Haman Kugler (See above for address) ATTORNEY TO BE NOTICED

Gary Lee Blasi (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

Jacob Kevin Poorman (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Jonathan Massey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Melissa A Tyner (See above for address) ATTORNEY TO BE NOTICED

Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 6 of 36

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Chris Romine on behalf of themselves and all those similarly situated TERMINATED: 08/12/2011

represented by Adam Murray (See above for address) ATTORNEY TO BE NOTICED
Amos E Hartston (See above for address) ATTORNEY TO BE NOTICED

David B Sapp (See above for address) ATTORNEY TO BE NOTICED

David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Haman Kugler (See above for address) ATTORNEY TO BE NOTICED

Gary Lee Blasi (See above for address) ATTORNEY TO BE NOTICED

Jacob Kevin Poorman (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Jonathan Massey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Leonard A Gail (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Melissa A Tyner

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 7 of 36

(See above for address) ATTORNEY TO BE NOTICED

Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vietnam Veterans of America

represented by Adam Murray (See above for address) ATTORNEY TO BE NOTICED

Amos E Hartston (See above for address) ATTORNEY TO BE NOTICED

David B Sapp (See above for address) ATTORNEY TO BE NOTICED

David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Haman Kugler (See above for address) ATTORNEY TO BE NOTICED

Gary Lee Blasi (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

Jacob Kevin Poorman (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Jonathan Massey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 8 of 36

Plaintiff
Carolina Winston Barrie TERMINATED: 08/12/2011

Leonard A Gail (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Melissa A Tyner (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Murray (See above for address) ATTORNEY TO BE NOTICED
Amos E Hartston (See above for address) ATTORNEY TO BE NOTICED
David B Sapp (See above for address) ATTORNEY TO BE NOTICED
David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Haman Kugler (See above for address) ATTORNEY TO BE NOTICED
Gary Lee Blasi (See above for address) ATTORNEY TO BE NOTICED
Jacob Kevin Poorman (See above for address) ATTORNEY TO BE NOTICED
James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED
John Michael Rappaport (See above for address) TERMINATED: 01/02/2013
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Jonathan Massey

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 9 of 36

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Leonard A Gail (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Melissa A Tyner (See above for address) ATTORNEY TO BE NOTICED

Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leroy Smith, Jr

represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leslie Richardson

represented by

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 10 of 36

David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Wayne Early

represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 11 of 36

Plaintiff Willie Floyd
Plaintiff Adrian Moraru

represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED
Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED
John Michael Rappaport (See above for address) TERMINATED: 01/02/2013
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED
James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED
represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED
Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED
John Michael Rappaport (See above for address) TERMINATED: 01/02/2013
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED
James Jacob Finsten

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 12 of 36

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Demetrious Kassitas

represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zachary Isaac

represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED

Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED

John Michael Rappaport (See above for address) TERMINATED: 01/02/2013

John C Ulin (See above for address) ATTORNEY TO BE NOTICED

Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED

Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 13 of 36

Plaintiff Lawrence Green

James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED
represented by David Eric Shapland (See above for address) ATTORNEY TO BE NOTICED
Hector O Villagra (See above for address) ATTORNEY TO BE NOTICED
John Michael Rappaport (See above for address) TERMINATED: 01/02/2013
John C Ulin (See above for address) ATTORNEY TO BE NOTICED
Laurence H Tribe (See above for address) ATTORNEY TO BE NOTICED
Mark D Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Ronald L Olson (See above for address) ATTORNEY TO BE NOTICED
James Jacob Finsten (See above for address) ATTORNEY TO BE NOTICED

V.
Movant
Santa Monica City of proposed amicus curiae

represented by Joseph Peter Lawrence Santa Monica City Attorney 1685 Main St, 3rd Fl Santa Monica, CA 90401−3295 310−458−8328 Email: joseph.lawrence@smgov.net ATTORNEY TO BE NOTICED

V.
Defendant
Eric Shinseki in his official capacity, Secretary, Department of Veterans Affairs

represented by Elisabeth Layton US Department of Justice Civil Division Federal Programs Branch P O Box 883 Washington, DC 20044 202−514−3183 Fax: 202−616−8470 Email: elisabeth.layton@usdoj.gov LEAD ATTORNEY

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 14 of 36

ATTORNEY TO BE NOTICED

Alarice M Medrano AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−0460 Fax: 213−894−7819 Email: alarice.medrano@usdoj.gov ATTORNEY TO BE NOTICED

Jennie L Kneedler United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−305−8662 Email: jennie.l.kneedler@usdoj.gov ATTORNEY TO BE NOTICED

Karen S Bloom US Department of Justice Civil Division 20 Massachusetts Avenue NW Washington, DC 20530 202−514−4964 Fax: 202−616−8470 Email: karen.s.bloom@usdoj.gov ATTORNEY TO BE NOTICED

Karen P Seifert United States Department of Jusrtice Civil Division 555 Fourth Street NW Washington, DC 20001 202−252−7519 TERMINATED: 07/09/2013

Kristen McKeever US Department of Justice Civil Division − Commercial Litigation Branch P O Box 875 Washington, DC 20044 202−307−3242 Fax: 202−514−9163 Email: Kristen.L.McKeever@usdoj.gov TERMINATED: 09/25/2012

Defendant
Donna M Beiter in her official capacity, Director, VA Greater Los Angeles Healthcare System

represented by Elisabeth Layton US Department of Justice Civil Division 20 Massachusetts Avenue NW 9th Fl Washington, DC 20530 202−514−3183 Email: elisabeth.layton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alarice M Medrano (See above for address)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 15 of 36

ATTORNEY TO BE NOTICED

Jennie L Kneedler (See above for address) ATTORNEY TO BE NOTICED

Karen S Bloom (See above for address) ATTORNEY TO BE NOTICED

Karen P Seifert (See above for address) TERMINATED: 07/09/2013

Kristen McKeever (See above for address) TERMINATED: 09/25/2012

Amicus Metabolic, Studio LLC

represented by Erin Galbally Dilworth Paxson LLP 1500 Market Street Suite 3500E Philadelphia, PA 19102 215−575−7293 Fax: 215−575−7200 Email: egalbally@dilworthlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Mark A Neubauer Carlton Fields Jorden Burt LLP North Tower 2000 Avenue of the Stars Suite 530 Los Angeles, CA 90067 310−843−6300 Fax: 310−843−6301 Email: mneubauer@carltonfields.com ATTORNEY TO BE NOTICED

Richard L Fox Dilworth Paxon LLP 1500 Market Street Suite 3500E Philadelphia, PA 19102 215−575−7163 Fax: 215−575−7200 Email: rfox@dilworthlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Intervenor Regents of University of California

represented by Charles F Robinson University of California 1111 Franklin Street, 8th Floor Oakland, CA 94607−5200 510−987−9800 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Craig J DeRecat Manatt Phelps and Phillips LLP 11355 West Olympic Boulevard

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 16 of 36

Los Angeles, CA 90064−1614 310−312−4319 Fax: 310−312−4224 Email: Cderecat@manatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

George M Soneff Manatt Phelps and Phillips LLP 11355 West Olympic Boulevard 8th Floor Los Angeles, CA 90064−1614 310−312−4000 Fax: 312−4224 Email: gsoneff@manatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen J Petrulakis Regents of the University of California Office of the General Counsel 1111 Franklin St., 8th Floor Oakland, CA 94607−5200 510−987−9726 Fax: 510−987−9757 Email: karen.petrulakis@ucop.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristin S Escalante Securities & Exchange Commission Los Angeles Regional Office 444 S. Flower St., Suite 900 Los Angeles, CA 90071 213−219−2026 Email: EscalanteK@sec.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Goldstein Office of the General Counsel Regents of the University of California 1111 Franklin St, 8th Floor Oakland, CA 94607 510−987−9895 Email: michael.goldstein@ucop.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Brentwood School

represented by Alexander Mitchell Fenner Gibson Dunn and Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213−229−7446 Fax: 213−229−6446 Email: afenner@perkinscoie.com TERMINATED: 01/27/2015 ATTORNEY TO BE NOTICED

Daniel S Floyd Gibson Dunn and Crutcher LLP 333 South Grand Avenue 46th Floor Los Angeles, CA 90071 213−229−7000

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 17 of 36
Fax: 213−229−7520 Email: dfloyd@gibsondunn.com ATTORNEY TO BE NOTICED
Debra Wong Yang Gibson Dunn and Crutcher 333 South Grand Avenue Los Angeles, CA 90071 213−229−7472 Fax: 213−229−7520 Email: dwongyang@gibsondunn.com ATTORNEY TO BE NOTICED
Mediator (ADR Panel)
Gail Killefer United States District Court 312 N. Spring Street Los Angeles, CA 90012

Date Filed 06/08/2011
06/08/2011 06/08/2011 06/08/2011 06/08/2011 06/08/2011 06/08/2011
06/08/2011

# Docket Text
1 CLASS ACTION COMPLAINT against Defendants Donna M Beiter, Eric Shinseki. Case assigned to Judge S. James Otero for all further proceedings. Discovery referred to Magistrate Judge Michael R Wilner. (Filing fee $ 350 PAID.), filed by Plaintiffs Chris Romine, Adrian Mararu, Gregory Valentini, Vietnam Veterans of America, Carolina Winston Barrie, Jane Doe.(et) (Additional attachment(s) added on 6/10/2011: # 1 Notice of Assignment, # 2 Summons, # 3 Civil Cover Sheet) (ds). (Entered: 06/08/2011)
60 DAY Summons Issued re Complaint − (Discovery) 1 as to Defendants Donna M Beiter, Eric Shinseki. (et) (Entered: 06/08/2011)
2 NOTICE of Interested Parties filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. (et) (ds). (Entered: 06/08/2011)
3 NOTICE of Related Case(s) filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. Related Case(s): NO RELATED ACTION. (et) (ds). (Entered: 06/08/2011)
4 DECLARATION of DAVID B. SAPP in Compliance with Local Rule 7−19.1 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. (et) (ds). (Entered: 06/08/2011)
5 PLAINTIFFS NOTICE OF EXPARTE APPLICATION and APPLICATION to file Under Seal; declaration in support of plaintiffs ex parte applice to file under seal filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. Lodged Exparte and Order.(et) (Entered: 06/08/2011)
6 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Jonathan Massey for Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. Your Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $275.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (et) (Entered: 06/08/2011)
7 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Leonard Gail for Plaintiffs Carolina Winston Barrie, Jane Doe, Chris Romine, Gregory Valentini, Vietnam Veterans of America. Your Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 18 of 36

06/09/2011 06/09/2011 06/09/2011 06/09/2011 06/14/2011 06/21/2011 06/23/2011
06/23/2011
06/24/2011 07/20/2011
07/20/2011

your application and the $275.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (et) (Entered: 06/08/2011)
8 INITIAL STANDING ORDER FOR CASES ASSIGNED TO Judge S. James Otero. Read This Order Carefully. It Controls This Case and Differs in Some Respects From the Local Rules. (See Order for Details). (sch) (Entered: 06/09/2011)
9 INITIAL STANDING ORDER FOR CASES ASSIGNED TO JUDGE S. JAMES OTERO by Judge S. James Otero (lc) (Entered: 06/09/2011)
10 SEALED DOCUMENT− Plaintiffs' Notice of EX PARTE APPLICATION and Exparte Application to Proceed Under a Fictitious Name; Declarations in Support of plaintiffs' Exparte Application to Proceed Under a Fictitious Name. (mat) (Entered: 06/13/2011)
11 SEALED DOCUMENT− Order Granting Plaintiffs' Exparte Application to Proceed Under a Fictitious Name. (mat) (Entered: 06/13/2011)
12 NOTICE OF LODGING filed re Complaint − (Discovery), Complaint − (Discovery) 1 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ulin, John) (Entered: 06/14/2011)
13 APPLICATION for attorney Jonathan S. Massey to Appear Pro Hac Vice(PHV Fee of $275 receipt number 0973−8829609 paid.) filed by plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Proposed Order on Application of Non−Resident Attorney to Appear in a Specific Case)(Rosenbaum, Mark) (Entered: 06/21/2011)
14 PROOF OF SERVICE Executed by Plaintiff Chris Romine, Adrian Mararu, Gregory Valentini, Vietnam Veterans of America, Carolina Winston Barrie, Jane Doe, upon Defendant Eric Shinseki served on 6/8/2011, answer due 8/7/2011. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to Attorney General Eric H. Holder, Jr.. Executed upon the officer agency or corporation by delivering a copy to Eric Ken Shinseki. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Exhibit Exhibits A−C (Proofs of Service))(Ulin, John) (Entered: 06/23/2011)
15 PROOF OF SERVICE Executed by Plaintiff Chris Romine, Adrian Mararu, Gregory Valentini, Vietnam Veterans of America, Carolina Winston Barrie, Jane Doe, upon Defendant Donna M Beiter served on 6/8/2011, answer due 8/7/2011. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to Attorney General Eric H. Holder, Jr.. Executed upon the officer agency or corporation by delivering a copy to Donna M. Beiter. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Exhibit Exhibits A−C (Proofs of Service))(Ulin, John) (Entered: 06/23/2011)
16 MINUTE ORDER (IN CHAMBERS) by Judge S. James Otero. The Court sets a Status Conference on August 29, 2011 at 8:30 a.m. (sch) (Entered: 06/24/2011)
17 APPLICATION for attorney Leonard Gail to Appear Pro Hac Vice(PHV Fee of $275 receipt number 0973−8964473 paid.) filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Exhibit Good Standing Certificate, # 2 Proposed Order on Application of Non−Resident Attorney to Appear)(Rosenbaum, Mark) (Entered: 07/20/2011)
18 ORDER by Judge S. James Otero: Application to Appear Pro Hac Vice by Attorney Leonard Gail on behalf of Plaintiffs Gregory Valentini, et al, designating Mark Rosenbaum as local counsel 17 GRANTED. (ir) (Entered: 07/21/2011)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 19 of 36

08/05/2011 08/08/2011 08/08/2011 08/09/2011 08/09/2011
08/12/2011 08/17/2011
09/07/2011 09/08/2011 09/08/2011

19 Joint STIPULATION for Extension of Time to File Answer to October 7, 2011 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Adrian Mararu, Chris Romine, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 08/05/2011)
20 NOTICE of Appearance filed by attorney Elisabeth Layton on behalf of Defendants Donna M Beiter, Eric Shinseki (Layton, Elisabeth) (Entered: 08/08/2011)
21 EX PARTE APPLICATION to Continue Status Conference from August 29, 2011 to September 1, 7, 8, 9, or 12, 2011 Re: Minutes of In Chambers Order/Directive − no proceeding held, Set/Reset Hearing 16 filed by Defendants Eric Shinseki. (Attachments: # 1 Proposed Order)(Layton, Elisabeth) (Entered: 08/08/2011)
22 ORDER CONTINUING STATUS CONFERENCE by Judge S. James Otero. Having considered Defendants Ex Parte Application to Continue 21 , and for good cause shown, that the Status Conference set for 8/29/2011 at 8:30 AM., shall be continued to 9/8/2011 at 8:00 AM. (jp) (Entered: 08/09/2011)
23 ORDER by Judge S. James Otero, re Stipulation to Vacate 19 , and for good cause shown, that (1) The Monday, 8/8/2011 deadline for Defendants to answer or otherwise respond to the Complaint is VACATED: (2) Defendants shall answer or otherwise respond to the Amended Complaint on or before Friday, 10/7/2011; (3) The current 9/6/2011 deadline for the filing of Plaintiffs' class certification motion is VACATED; and (4) The parties shall confer and endeavor to agree on a new, mutually satisfactory deadline for the filing of Plaintiffs' class certification motion. The Proposed date will be discussed at the 9/8/2011 conference. (jp) (Entered: 08/10/2011)
24 FIRST AMENDED CLASS ACTION COMPLAINT against defendants Donna M Beiter, Eric Shinseki; Party Carolina Winston Barrie and Chris Romine terminated amending Complaint − (Discovery)) 1 ,filed by plaintiffs Gregory Valentini, Vietnam Veterans of America, Jane Doe, Adrian Mararu, Leroy Smith, Jr, Leslie Richardson, Wayne Early, Willie Floyd, Adrian Moraru, Demetrious Kassitas, Zachary Isaac, Lawrence Green (lc) (Entered: 08/15/2011)
25 NOTICE of Change of Attorney Information for attorney John Michael Rappaport counsel for Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Adding John M. Rappaport as attorney as counsel of record for Gregory Valentini, Carolina Winston Barrie, Jane Doe, Wayne, Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr., Vietnam Veterans of America for the reason indicated in the G−06 Notice. Filed by Plaintiffs Gregory Valentini, Carolina Winston Barrie, Jane Doe, Wayne, Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr., Vietnam Veterans of America (Rappaport, John) (Entered: 08/17/2011)
26 Plaintiffs' Status Conference Statement filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America (Ulin, John) (Entered: 09/07/2011)
27 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Miscellaneous Document, 26 . The following error(s) was found: Incorrect event selected. The correct event is: status report. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 09/08/2011)
29 MINUTES OF Status Conference held before Judge S. James Otero:The Court has reviewed the status report. The Court indicates that there are three primary claims, a discrimination claim, misuse of the West Los Angeles campus, and a failure to comply with the administrative procedures act in connection with the land agreements. The Court and confer regarding whether an appointment of guardian is required for plaintiffs and regarding unnamed land−use third parties that may have an interest in

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 20 of 36

09/09/2011 10/07/2011
10/07/2011 10/07/2011 10/19/2011 10/19/2011 10/20/2011 10/20/2011 10/21/2011
10/21/2011

this litigation. Court and counsel confer regarding settlement of this action. The Court appoints Gail Killefer assettlement officer in this proceeding. Department of Justice (DOJ) counsel advises the Court that there is no named decision−maker at this early stage of the proceedings. Counsel are Ordered to follow directives of Ms. Killefer in terms of a meeting date and what needs to be accomplished going forward in the settlement process. The Court is advised that defendants will file a motion to dismiss rather than an answer to the complaint. Court and counsel confer regarding jurisdictional issues, and whether sovereign immunity has been waived and the ability to grant relief. Plaintiff advises the Court that the reliefthey are seeking involves permanent and supportive housing as a vehicle to assure that severely disabled veterans who are eligible for Veteran Administrative services get the services that they are entitled.Court and counsel confer whether there are two separate law suits.The Court and counsel confer re commencement of discovery. The Court Denies the plaintiffsmotion for expedited discovery. The Court appoints John Ulin as lead counsel for plaintiffs, and Elisabeth Layton as lead counsel for defendants.The Court sets a Status Conference/ Motion to Dismiss hearing date on Monday, November 14, 2011 10:00 a.m; Opposition shall be filed by Friday, October 21, 2011; Reply shall be due by Tuesday, October 25, 2011. Motion shall be filed by Friday, October 7, 2011.Court Recorder: CS: 9/8/11. (lc) (Entered: 09/16/2011)
28 NOTICE OF ASSIGNMENT of Attorney Settlement Officer. Gail Killefer has been assigned to serve as Attorney Settlement Officer. (mb) (Entered: 09/09/2011)
30 TRANSCRIPT for proceedings held on 09/08/11 9:10am. Court Reporter/Electronic Court Recorder: Exceptional Reporting Services, Inc., phone number (361)949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/28/2011. Redacted Transcript Deadline set for 11/7/2011. Release of Transcript Restriction set for 1/5/2012. (ml) (Entered: 10/07/2011)
31 NOTICE OF FILING TRANSCRIPT filed for proceedings 09/08/11 9:10am (ml) (Entered: 10/07/2011)
32 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants Donna M Beiter, Eric Shinseki. Motion set for hearing on 11/14/2011 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Declaration Declaration of Elisabeth Layton and Exhibits 1 − 4, # 2 Proposed Order)(Layton, Elisabeth) (Entered: 10/07/2011)
33 APPLICATION for attorney Erin Galbally to Appear Pro Hac Vice. (PHV FEE PAID.) filed by movant Metabolic, Studio LLC. (Attachments: # 1 proposed order)(lc) (Entered: 10/21/2011)
34 APPLICATION for attorney Richard L Fox to Appear Pro Hac Vice. (PHV FEE PAID.) filed by movant Metabolic, Studio LLC. (Attachments: # 1 proposed order)(lc) (Entered: 10/21/2011)
36 ORDER by Judge S. James Otero: granting 33 Application to Appear Pro Hac Vice by Attorney Erin Galbally on behalf of Movant Metabolic Studio LLC, designating Mark A. Neubauer as local counsel. (lt) (Entered: 10/21/2011)
37 ORDER by Judge S. James Otero: granting 34 Application to Appear Pro Hac Vice by Attorney Richard L. Fox on behalf of Movant Metabolic Studio LLC, designating Mark A. Neubauer as local counsel. (lt) (Entered: 10/21/2011)
35 MEMORANDUM in Opposition to MOTION to Dismiss Case 32 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 10/21/2011)
38 STIPULATION for Leave to file amicus curiae brief in opposition to defendants motion to dismiss filed by movant Metabolic, Studio LLC. (Attachments: # 1 order)(lc) (Entered: 10/21/2011)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 21 of 36

10/21/2011 10/21/2011 10/25/2011 10/25/2011 10/25/2011 10/27/2011
11/01/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/14/2011

41 EX PARTE APPLICATION for Leave to participate as amicus curiae and declaration of Joseph Lawrence filed by movant Santa Monica City of. Lodged order.(lc) (Entered: 10/25/2011)
44 AMICUS CURIAE BRIEF In opposition to motion to dismiss filed filed by Amicus Metabolic, Studio LLC. (Deemed filed as of 10/21/11 Per Order 42 . (lc) (Entered: 10/27/2011)
39 NOTICE of Appearance filed by attorney Jennie L Kneedler on behalf of Defendants Donna M Beiter, Eric Shinseki (Kneedler, Jennie) (Entered: 10/25/2011)
40 REPLY in support of MOTION to Dismiss Case 32 filed by Defendants Donna M Beiter, Eric Shinseki. (Kneedler, Jennie) (Entered: 10/25/2011)
42 ORDER by Judge S. James Otero, re Stipulation 38 that Metabolic Studios Amicus Curiae Brief in opposition to defendants motion to dismiss attached to the stipulation between the parties is hereby deemed filed as of 10/21/11; defendants may file a separate response to that amicus brif at the same time as their current reply which is due on 10/28/11. (lc) (Entered: 10/26/2011)
43 MINUTE ORDER IN CHAMBERS by Judge S. James Otero:ORDER REQUIRING ADDITIONAL BRIEFING REGARDING MOTION TO DISMISS. On October 7, 2011, Defendants filed a Motion for Dismissal. (Docket No. 32.) Plaintiffs filed anOpposition on October 21, 2011 (Docket No. 35), and Defendants filed a Reply on October 25, 2011 (Docket No. 40). The Court is also in receipt of amicus curiae briefs filed by the City of Santa Monica and Metabolic Studio, LLC.The Court has determined that it would benefit from additional briefing pertaining specifically to the arguments about the creation of a charitable trust. Accordingly, the Court hereby permits the parties to file an additional brief of no more than 10 pages constrained to the following topics:(see document for list).Plaintiffs' and Defendants' briefs on these issues, should they choose to submit them, will be due on November 7, 2011. If the opposing side has filed a brief pursuant to this Order, the adverseparty shall then have an opportunity to file a 5−page response. This response will be dueNovember 14, 2011. The Court also requires Defendants to submit to the Court:(1) a copy of "Section 224" referenced in line 4 of page 5 of Defendants' Memorandum of Points and Authorities in Support of the Motion for Dismissal; and(2) a copy of the "VA GLA Master Plan" referenced on page 6 of Defendants' Memorandum of Points and Authorities in Support of the Motion for Dismissal.The Status Conference/Motion to Dismiss 32 Hearing date of November 14, 2011 at 10:00 a.m. is hereby vacated and moved to December 5, 2011 at 1:30 p.m. (lc) (Entered: 10/27/2011)
45 ORDER by Judge S. James Otero: granting 13 Application to Appear Pro Hac Vice by Attorney Jonathan Massey on behalf of Plaintiffs, designating Mark D. Rosenbaum as local counsel. (lt) (Entered: 11/01/2011)
46 SUPPLEMENT to MOTION to Dismiss Case 32 [Supplemental Brief in Opposition] filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 11/07/2011)
47 APPENDIX filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Re: Supplement(Motion related), Supplement(Motion related) 46 (Ulin, John) (Entered: 11/07/2011)
48 NOTICE of Filing filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Declaration of Elisabeth Layton, # 2 Exhibit A, # 3 Exhibit B)(Layton, Elisabeth) (Entered: 11/07/2011)
49 SUPPLEMENT to MOTION to Dismiss Case 32 Defendants' Supplemental Memorandum in Support of Their Motion to Dismiss filed by Defendants Donna M Beiter, Eric Shinseki. (McKeever, Kristen) (Entered: 11/07/2011)
50 RESPONSE filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 22 of 36

11/14/2011 11/14/2011 11/17/2011 11/17/2011 11/18/2011
11/18/2011
11/23/2011 11/28/2011 12/01/2011 12/02/2011

Americato Supplement(Motion related) 49 (Ulin, John) (Entered: 11/14/2011)
51 APPENDIX filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Re: Response (non−motion), Response (non−motion) 50 (Supplemental Appendix of Additional Authorities) (Ulin, John) (Entered: 11/14/2011)
52 SUPPLEMENT to MOTION to Dismiss Case 32 Defendants' Reply to Plaintiffs' Supplemental Brief in Opposition to Defendants' Motion to Dismiss filed by Defendants Donna M Beiter, Eric Shinseki. (McKeever, Kristen) (Entered: 11/14/2011)
53 NOTICE of Decision: Notice of Ninth Circuit Decision filed by Defendants Eric Shinseki. (Attachments: # 1 Exhibit)(Layton, Elisabeth) (Entered: 11/17/2011)
54 REQUEST to Supplement Briefing filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 11/17/2011)
55 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: REQUEST to Supplement Briefing 54 . The following error(s) was found: Incorrect document is attached to the docket entry.Incorrect event selected.Proposed Document was not submitted as a separate attachment. Title page is missing. No formal request attached, no formal proposed order submitted with the request. PDF is not a request, but a Letter to the Judge. Local Rule 83.2.11 no communication to the Judge is permitted. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) Modified on 11/18/2011 (lc). (Entered: 11/18/2011)
56 MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER PERMITTING ADDITIONAL BRIEFING REGARDING MOTION TO DISMISS The Ninth Circuit has withdrawn its opinion Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011) and decided to rehear the appeal en banc. Both Plaintiffs and Defendants cited Veterans for Common Sense in their briefs regarding jurisdiction for the Rehabilitation Act claims. In light of the Ninth Circuit's withdrawal of the opinion, the Court will permit, but not require, additional briefing to address the jurisdictional question for the Rehabilitation Act claims.If they wish, Plaintiffs may file a brief not to exceed five pages on or before Wednesday, November 23, 2011. If Plaintiffs choose to file a brief, Defendants will be permitted but not required to file a brief not to exceed five pages on or before Thursday, December 1, 2011. Both briefs shall be limited to the Court's jurisdiction to hear the Rehabilitation Act claims. (lc) (Entered: 11/18/2011)
57 SUPPLEMENT to MOTION to Dismiss Case 32 [Supplemental Brief in Opposition to Defendants' Motion for Dismissal] filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 11/23/2011)
58 MINUTES (IN CHAMBERS): ORDER by Judge S. James Otero. On the Court's own motion, the Court takes the MOTION to Dismiss Case filed by Defendants Donna M Beiter, Eric Shinseki 32 , set for hearing December 5, 2011, under submission. Additionally, the Status Conference also set for hearing on December 5, 2011, is taken off the Court's calendar to be rescheduled at a later date. (sch) (Entered: 11/28/2011)
59 RESPONSE IN SUPPORT of MOTION to Dismiss Case 32 and in response to Plaintiffs' Supplemental Brief filed by Defendants Donna M Beiter, Eric Shinseki. (Bloom, Karen) (Entered: 12/01/2011)
60 NOTICE of Appearance filed by attorney Karen S Bloom on behalf of Defendants Donna M Beiter, Eric Shinseki (Bloom, Karen) (Entered: 12/02/2011)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 23 of 36

12/13/2011
03/14/2012 03/14/2012 03/14/2012 03/14/2012 03/14/2012 03/14/2012 03/14/2012 03/16/2012

61 ATTORNEY SETTLEMENT OFFICER PROCEEDING REPORT Filed by Attorney Settlement Officer Gail Killefer: Settlement Proceedings were held on October 26, 2011. The proceeding was continued with the consent of all parties and counsel. The rescheduled proceeding will be held on a date certain not later than the time requirements set forth in Local Rule 16−15.2. Any continuance beyond that time must be approved by the trial judge. Attorney Settlement Officer Proceeding Reports will be filed after additional proceedings are complete. Discussions are on going. The parties are unable to reach agreement at this time. (mb) (Entered: 12/13/2011)
62 NOTICE OF MOTION AND MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Motion set for hearing on 4/16/2012 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 03/14/2012)
63 DECLARATION of David Sapp in support of MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 03/14/2012)
64 DECLARATION of Floyd Summers in support of MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 03/14/2012)
65 DECLARATION of Gregory Valentini in support of MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 03/14/2012)
66 DECLARATION of Leslie Richardson in support of MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 03/14/2012)
67 DECLARATION of Philip F. Mangano in support of MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 03/14/2012)
68 NOTICE OF ERRATA filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. correcting Declaration (Motion related), Declaration (Motion related) 67 (Declaration of Philip F. Mangano) (Ulin, John) (Entered: 03/14/2012)
69 NOTICE OF ERRATA filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. correcting Declaration (Motion related), Declaration (Motion related) 64 (Declaration of Floyd Summers) (Finsten, James) (Entered: 03/16/2012)

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03/16/2012
03/23/2012 03/23/2012 03/26/2012 03/29/2012 04/10/2012 04/12/2012 05/07/2012 05/08/2012
05/14/2012 05/15/2012

70 MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER granting in part and denying in part 32 defendants Eric Shinseki and Donna M. Beiter's Motion to Dismiss. (1) To the extent Claim One rests on the theory that there is a policy, rule, or regulation that on its face bars veterans with severe mental illness or who take psychotropic medication from obtaining an existing benefit offered by the VA GLA, the Claim is DISMISSED WITH LEAVE TO AMEND; to the extent Claim One rests on the theory that the Government fails to provide permanent supportive housing, the Claim is DISMISSED WITHOUT LEAVE TO AMEND;(2) The Motion is DENIED with respect to Claim Two; (3) Claims Three, Four, and Five are DISMISSED WITHOUT LEAVE TO AMEND; (4) The Motion is DENIED with respect to Claim Six. (lc) (Entered: 03/16/2012)
71 Notice of Withdrawal of Motion for Discovery, 62 filed by plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 03/23/2012)
72 Joint STIPULATION for Extension of Time to File Answer re MOTION for Discovery regarding to Open Discovery and Set a Rule 16 Scheduling Conference 62 filed by plaintiff Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 03/23/2012)
73 NOTICE of Appearance filed by attorney David Eric Shapland on behalf of Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America (Shapland, David) (Entered: 03/26/2012)
74 ORDER that Plaintiffs Motion to Open Discovery and Set a Rule 16 Scheduling Conference 62 , which had been scheduled for hearing on April 16, 2012, is withdrawn, and the scheduled hearing is taken off calendar by Judge S. James Otero (lc) (Entered: 04/02/2012)
75 NOTICE of Appearance filed by attorney Karen P Seifert on behalf of Defendants Donna M Beiter, Eric Shinseki (Seifert, Karen) (Entered: 04/10/2012)
76 JOINT REPORT Rule 26(f) Discovery Plan and Conference of Parties ; estimated length of trial disputed, filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America.. (Shapland, David) (Entered: 04/12/2012)
77 ANSWER to Amended Complaint, 24 filed by Defendants Donna M Beiter, Eric Shinseki.(Layton, Elisabeth) (Entered: 05/07/2012)
78 MINUTE ORDER (IN CHAMBERS) by Judge S. James Otero: Scheduling Conference set for 7/23/2012 at 08:30 AM; Rule 26 Meeting Report due by 7/16/2012; in order to assist counsel, court has included a schedule form for pretrial dates to be completed by counsel and submitted in conjunction with their rule 26(f0 report; if case is part of ADR program, counsel must confer and jointly complete ADR Pilot Program Questionnaire and to file it concurrently with the Joint Rule 26(f) report; plaintiff counsel directed to give notice of scheduling conference to all parties. (sch) (Entered: 05/08/2012)
79 EXPARTE APPLICATION for Extension of Time to File Respond to Discovery Requests filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Proposed Order)(Bloom, Karen) (Entered: 05/14/2012)
80 OPPOSITION to EXPARTE APPLICATION for Extension of Time to File Respond to Discovery Requests 79 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 05/15/2012)

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05/15/2012 05/21/2012
05/25/2012 06/04/2012 06/07/2012 06/13/2012 06/19/2012 07/16/2012 07/17/2012 07/23/2012

81 DECLARATION of Eric Shapland in Opposition to EXPARTE APPLICATION for Extension of Time to File Respond to Discovery Requests 79 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Exhibit A)(Ulin, John) (Entered: 05/15/2012)
82 MINUTE ORDER (IN CHAMBERS): ORDER GRANTING EX PARTE APPLICATION FOR EXTENSION OF TIME TO RESPOND TO DISCOVERY REQUESTS 79 by Judge S. James Otero. The Court GRANTS Government's Ex Parte Application for Extension of Time to Respond to Discovery Requests. On May 28, 2012, the Government must either: (1) file a motion for reconsideration; or (2) serve its responses to Plaintiffs' outstanding discovery requests. If the Government chooses to file a motion for reconsideration on May 28, 2012, Plaintiffs' opposition will be due on June 4, 2012, and the Government's reply will be due on June 7, 2012. All future discovery disputes (e.g., motions or ex parte applications to compel, for a protective order, to stay discovery, to lift a stay on discovery, or to extend or shorten time to respond to discovery) shall be directed to the Magistrate Judge. See order for details. (cch) (Entered: 05/21/2012)
83 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction filed by Defendants Donna M Beiter, Eric Shinseki. Motion set for hearing on 6/25/2012 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Declaration of Karen P. Seifert, # 2 Proposed Order)(Seifert, Karen) (Entered: 05/25/2012)
84 OPPOSITION to MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction 83 filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 06/04/2012)
85 REPLY in Support of MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction 83 filed by Defendants Donna M Beiter, Eric Shinseki. (Seifert, Karen) (Entered: 06/07/2012)
86 MINUTES (IN CHAMBERS): ORDER by Judge S. James Otero. The Court finds this matter suitable for disposition without oral argument and vacates the hearing re the MOTION for Reconsideration re Order on Motion to Dismiss Case,,, 70 & Suggestion of Lack of Jurisdiction filed by Defendants Donna M Beiter, Eric Shinseki. 83 , set for June 25, 2012. See Fed. R. Civ. P. 78(b). (sch) (Entered: 06/14/2012)
87 MINUTES (IN CHAMBERS) by Judge S. James Otero: Court order granting in part and denying in part 83 Motion for Reconsideration. (1) The Court GRANTS the Motion with respect to the Rehabilitation Act claim and DISMISSES the claim without leave to amend; (2) The Court DENIES the Motion with respect to the Administrative Procedure Act claim. (lc) (Entered: 06/19/2012)
88 Joint REPORT of Conference of Parties filed by Defendant Eric Shinseki. (Layton, Elisabeth) (Entered: 07/16/2012)
89 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Report 88 . The following error(s) was found: Incorrect event selected. The correct event is: Joint Rule 26(f) Discovery Plan. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 07/17/2012)
90 MINUTES OF Scheduling Conference held before Judge S. James Otero.The Court indicates that the remaining issue is the APA claim. The Court has reviewedthe joint status report. The Court orders that the administrative record shall be filed by Monday, October 22, 2012. A challenge to the record shall be filed by November 22, 2012. The Court sets the following schedule regarding cross−motions for summary judgment:

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 26 of 36

07/27/2012 07/27/2012 08/07/2012
08/07/2012 09/25/2012 10/22/2012 10/25/2012 11/20/2012 11/21/2012
11/21/2012

Motions shall be filed by Friday, December 21, 2012; Oppositions shall be filed by Friday, January 18, 2013; Replies shall be filed by Friday, January 25, 2013; Hearing will be set if determined necessary by the Court. Trial is set for Monday, March 25, 2013 9:00 a.m. Pretrial Conference is waived.Court Recorder: CS 7/23/12. (lc) (Entered: 07/25/2012)
91 TRANSCRIPT ORDER for date of proceedings 7/23/12 to 7/23/12 as to defendants Donna M Beiter, Eric Shinseki Court Smart (CS). Transcript portion requested: Other: Scheduling Conference 7/23/12. Category: 14 Day. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Layton, Elisabeth) (Entered: 07/27/2012)
92 STIPULATION to Dismiss plaintiff Carolina Winston Barrie filed by plaintiffs Wayne Early, Lawrence Green, Chris Romine, Gregory Valentini, Vietnam Veterans of America, Willie Floyd, Jane Doe, Adrian Mararu, Leslie Richardson, Adrian Moraru, Zachary Isaac, Demetrious Kassitas, Carolina Winston Barrie, Leroy Smith, Jr.(Finsten, James) (Entered: 07/27/2012)
93 TRANSCRIPT for proceedings held on 7/23/12 8:56 a.m.. Court Reporter/Electronic Court Recorder: HUNTINGTON COURT REPORTERS, phone number (626) 792−7250. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/28/2012. Redacted Transcript Deadline set for 9/7/2012. Release of Transcript Restriction set for 11/5/2012. (ha) (Entered: 08/07/2012)
94 NOTICE OF FILING TRANSCRIPT filed for proceedings 7/23/12 8:56 a.m. re Transcript 93 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(ha) TEXT ONLY ENTRY (Entered: 08/07/2012)
95 NOTICE of Change of Attorney Information for attorney Kristen McKeever counsel for Defendants Donna M Beiter, Eric Shinseki.Kristen L. McKeever is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Defendants Eric Shinseki, et al. (McKeever, Kristen) (Entered: 09/25/2012)
96 NOTICE OF FILING of Certified Administrative Proceedings filed by Defendants Eric Shinseki. (Attachments: # 1 AR Part 1, # 2 AR Part 2, # 3 AR Part 3, # 4 AR Part 4, # 5 AR Part 5, # 6 AR Part 6, # 7 AR Part 7, # 8 AR Part 8, # 9 AR Part 9, # 10 AR Part 10, # 11 AR Part 11, # 12 AR Part 12, # 13 AR Part 13, # 14 AR Part 14, # 15 AR Part 15, # 16 AR Part 16, # 17 AR Part 17, # 18 AR Part 18, # 19 AR Part 19, # 20 AR Part 20, # 21 AR Part 21, # 22 AR Part 22)(Seifert, Karen) (Entered: 10/22/2012)
97 MEDIATION REPORT Filed by Mediator (ADR Panel) Gail Killefer: Mediation held on 7/23/12 through 10/25/12 telephonically. The parties are unable to reach an agreement at this time.(mb) (Entered: 10/25/2012)
98 NOTICE filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Supplement AR Supplement Part 1 of 4, # 2 Supplement AR Supplement Part 2 of 4, # 3 Supplement AR Supplement Part 3 of 4, # 4 Supplement AR Supplement Part 4 of 4)(Layton, Elisabeth) (Entered: 11/20/2012)
99 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other) 98 . The following error(s) was found: Incorrect event selected. The correct event is: Certified Administrative Proceedings (Notice of Filing).. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 11/21/2012)
100 NOTICE OF MOTION AND MOTION to Supplement the Administrative Record filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Motion set for hearing on 1/14/2013 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Declaration of James J. Finsten in Support of Plaintiffs' Motion to Supplement the

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 27 of 36

12/03/2012 12/05/2012
12/21/2012 12/26/2012 12/31/2012 01/02/2013 01/02/2013 01/22/2013
02/05/2013 02/12/2013

Administrative Record, # 2 Proposed Order Granting Plaintiffs' Motion to Supplement the Administrative Record)(Ulin, John) (Entered: 11/21/2012)
101 Joint STIPULATION for Extension of Time to File Summary Judgment Motions filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Proposed Order)(Seifert, Karen) (Entered: 12/03/2012)
102 ORDER STAYING SUMMARY JUDGMENT PROCEEDINGS by Judge S. James Otero:Pursuant to the parties stipulation 101 , the briefing schedule for summary judgment proceedings, entered on July 23, 2012, is hereby STAYED pending resolution of Plaintiffs Motion to Supplement the Administrative Record (ECF No. 100). Within fourteen days of a decision on Plaintiffs Motion, the partiesshall submit a report proposing schedules for the remaining proceedings in thismatter, including motions for summary judgment. (lc) (Entered: 12/05/2012)
103 Joint STIPULATION for Extension of Time to File Response as to MOTION to Supplement the Administrative Record 100 filed by defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Proposed Order)(Layton, Elisabeth) (Entered: 12/21/2012)
104 MEMORANDUM in Opposition to MOTION to Supplement the Administrative Record 100 filed by Defendants Donna M Beiter, Eric Shinseki. (Layton, Elisabeth) (Entered: 12/26/2012)
105 REPLY In Support Of MOTION to Supplement the Administrative Record 100 filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 12/31/2012)
106 NOTICE of Change of Attorney Information for attorney John Michael Rappaport counsel for Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. Filed by Plaintiffs John M. Rappaport (Rappaport, John) (Entered: 01/02/2013)
107 MINUTES (IN CHAMBERS) by Judge S. James Otero: The Court finds the following matter suitable for disposition without oral argument and vacates the hearing on Plaintiff's Motion to Supplement the Administrative Record 100 set for January 14, 2013. See Fed. R. Civ. P. 78(b). No appearances are necessary. An order will issue. (lc) (Entered: 01/03/2013)
108 MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER GRANTING IN PART AND DENYING IN PARTPLAINTIFFS' MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD 100 .On or before February 18, 2013, Defendants must supplement the Administrative Record with all material considered either directly or indirectly in entering all ESAs listed in the Master Plan, including those no longer in effect when the Complaint was filed. Plaintiffs' Motion is DENIED in all other respects. (lc) (Entered: 01/22/2013)
109 JOINT REPORT of Of Parties Proposing Summary Judgment Briefing Schedule filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America, Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Proposed Order)(Layton, Elisabeth) (Entered: 02/05/2013)
110 MINUTE ORDER IN CHAMBERS by Judge S. James Otero:ORDER SETTING SCHEDULE FOR PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT 109 . Upon consideration of the Parties' Joint Report Proposing Summary Judgment Briefing Schedule,the schedule for the parties' cross−motions for summary judgment shall be as follows: 1. Defendants' Motion for Summary Judgment shall be filed on or before April 10, 2013. 2. Plaintiffs' Opposition and Plaintiffs' Cross−Motion for Summary Judgment shall be filed on or before May 10, 2013. 3. Defendants' Reply and Opposition shall be filed on or before June 12, 2013. 4. Plaintiffs' Reply shall be filed on or before June 21, 2013. 5. A hearing date will be set if the Court determines one to be necessary. (lc) (Entered: 02/12/2013)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 28 of 36

02/13/2013
02/19/2013 04/05/2013 04/08/2013 04/10/2013 04/10/2013 04/11/2013
05/06/2013
05/06/2013 05/06/2013

111 ORDER SETTING SCHEDULE FOR PARTIES CROSS−MOTIONS FOR SUMMARY JUDGMENT by Judge S. James Otero: Defendants Motion for Summary Judgment shall be filed on orbefore April 10, 2013. Plaintiffs Opposition thereto and Plaintiffs Cross−Motion for Summary Judgment shall be filed on or before May 10, 2013. Defendants Reply and Opposition shall be filed on or before June 12, 2013. Plaintiffs Reply shall be filed on or before June 21, 2013. A hearing date will be set if determined necessary by the Court. (lc) (Entered: 02/13/2013)
112 NOTICE OF FILING of Certified Administrative Proceedings filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 2nd Supp. to AR Part 1 of 6, # 2 2nd Supp. to AR Part 2 of 6, # 3 2nd Supp. to AR Part 3 of 6, # 4 2nd Supp. to AR Part 4 of 6, # 5 2nd Supp. to AR Part 5 of 6, # 6 2nd Supp. to AR Part 6 of 6)(Layton, Elisabeth) (Entered: 02/19/2013)
113 APPLICATION to Exceed Page Limitation Memorandum of Points and Authorities in support of Defendants' Motion for Summary Judgment filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Proposed Order Granting Unopposed Ex Parte Application To Exceed Page Limit)(Layton, Elisabeth) (Entered: 04/05/2013)
114 ORDER by Judge S. James Otero: granting 113 Application that for purposes of the Memorandum of Points and Authorities in support of Defendants anticipated Motion for Summary Judgment, the 20−page limit imposed by this Courts Standing Order for Cases Assigned To Judge S. James Otero (ECF No. 9), shall be extended by no more than five (5) pages. Accordingly, Defendants may file a Memorandum of no more than twenty−five (25) pages. (lc) (Entered: 04/09/2013)
115 NOTICE OF FILING of Certified Administrative Proceedings filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Supplement to Administrative Record)(Layton, Elisabeth) (Entered: 04/10/2013)
116 NOTICE OF MOTION AND MOTION for Summary Judgment filed by Defendants Donna M Beiter, Eric Shinseki. (Attachments: # 1 Declaration of Elisabeth Layton, # 2 Proposed Order)(Layton, Elisabeth) (Entered: 04/10/2013)
117 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION for Summary Judgment 116 . The following error(s) was found: Missing the Proposed Document Local Rule 56−1 Statement of Uncontroverted Facts which was not submitted as a separate attachment. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 04/11/2013)
118 EX PARTE APPLICATION for Leave to To File A Single, Combined Memorandum: (A) In Support Of Plaintiffs' Motion For Summary Judgment; And (B) In Opposition To Defendants Cross−Motion For Summary Judgment; Declaration Of James J. Finsten filed by Plaintiffs Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Proposed Order Granting Plaintiffs' Ex Parte Application to Submit Combined Memorandum in Support of Plaintiffs Motion for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment)(Ulin, John) (Entered: 05/06/2013)
119 NOTICE of Errata filed by Plaintiffs Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 05/06/2013)
120 EX PARTE APPLICATION for Leave to File A Single, Combined Memorandum: (A) In Support Of Plaintiffs Motion For Summary Judgment; And (B) In Opposition To Defendants Cross−Motion For Summary Judgment; Declaration Of James J. Finsten filed by Plaintiffs Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 05/06/2013)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 29 of 36

05/07/2013 05/08/2013
05/09/2013 05/10/2013
05/10/2013 05/13/2013
06/12/2013 06/12/2013 06/21/2013 07/01/2013 07/09/2013 07/25/2013

121 ORDER by Judge S. James Otero: denying 118 120 Ex Parte Application to submit combined memorandum in support of plaintiffs motion for summary judgment and in opposition to defendants motion for summary judgment not to exceed 40 pages. (lc) (Entered: 05/07/2013)
122 EX PARTE APPLICATION to Exceed Page Limitation for Memorandum of Points and Authorities in Support of Plaintiffs Motion for Summary Judgment; Declaration of James J. Finsten filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Attachments: # 1 Proposed Order)(Finsten, James) (Entered: 05/08/2013)
123 ORDER by Judge S. James Otero: granting 122 Ex Parte Application to Extend the Page Limit for Memorandum of Points and Authorities in Support of Plaintiffs Motion for Summary Judgment.Plaintiffs may file a Memorandum of no more than 25 pages. (lc) (Entered: 05/09/2013)
124 NOTICE OF MOTION AND MOTION for Summary Judgment as to Administrative Procedure Act Claim filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Proposed Order)(Ulin, John) (Entered: 05/10/2013)
125 MEMORANDUM in Opposition to MOTION for Summary Judgment 116 filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Ulin, John) (Entered: 05/10/2013)
126 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION for Summary Judgment as to Administrative Procedure Act Claim 124 . The following error(s) was found: Proposed Local Rule 56−1 Statement of Uncontroverted Facts lacking and should have been submitted as a separate attachment. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 05/13/2013)
127 OPPOSITION to MOTION for Summary Judgment as to Administrative Procedure Act Claim 124 filed by Defendants Donna M Beiter, Eric Shinseki. (Layton, Elisabeth) (Entered: 06/12/2013)
128 REPLY in support of MOTION for Summary Judgment 116 filed by Defendants Donna M Beiter, Eric Shinseki. (Layton, Elisabeth) (Entered: 06/12/2013)
129 REPLY Reply In Support of Motion for Summary Judgment MOTION for Summary Judgment as to Administrative Procedure Act Claim 124 filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Ulin, John) (Entered: 06/21/2013)
130 Mail Returned addressed to Karen P Seifert re Notice of Deficiency in Electronically Filed Documents (G−112) 126 (lc) (Entered: 07/05/2013)
131 Notice of Appearance or Withdrawal of Counsel: for attorney Alarice M Medrano counsel for Defendants Donna M Beiter, Eric Shinseki. KAREN P. SEIFERT is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by DEFENDANT ERIK SHINSEKI AND DONNA BEITER. (Medrano, Alarice) (Entered: 07/09/2013)
132 MINUTE ORDER IN CHAMBERS by Judge S. James Otero:The Court sets oral hearing re MOTION for Summary Judgment as to Administrative Procedure Act Claim filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. 124 on Friday, August 16, 2013 9:00 a.m. (lc) (Entered: 07/26/2013)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 30 of 36

08/16/2013 08/16/2013 08/19/2013
08/19/2013 08/19/2013
08/19/2013 08/19/2013
08/20/2013 08/29/2013

133 TRANSCRIPT ORDER Court Smart (CS). Transcript portion requested: Other: 8/16/13. (ml) (Entered: 08/16/2013)
134 MINUTES OF MOTIONS FOR SUMMARY JUDGMENT 116 , 124 hearing held before Judge S. James Otero. The matter stands submitted. Court Recorder: Margarita Ramirez. (lom) (Entered: 08/16/2013)
135 TRANSCRIPT for proceedings held on 8/16/2013 9:06 a.m.. Court Reporter/Electronic Court Recorder: Exceptional Reporting Services, Inc., phone number (361) 949−2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/9/2013. Redacted Transcript Deadline set for 9/19/2013. Release of Transcript Restriction set for 11/17/2013. (mo) (Entered: 08/19/2013)
136 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/16/2013 9:06 a.m.. re Transcript 135 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mo) TEXT ONLY ENTRY (Entered: 08/19/2013)
137 TRANSCRIPT ORDER re: Transcript (CV),, 135 , as to plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America Court Reporter. Court will contact Eric Shapland at eric.shapland@aporter.com with any questions regarding this order. Transcript portion requested: Other: 8/16/2013. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Shapland, David) (Entered: 08/19/2013)
138 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Transcript Designation and Ordering Form (G−120),, 137 . The following error(s) was found: PLEASE SELECT THE COURTSMART OPTION. You must electronically refile the above referenced Request for Transcript in this case to correct this deficiency. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 08/19/2013)
139 TRANSCRIPT ORDER re: Transcript (CV),, 135 , as to plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America Court Smart (CS). Court will contact Eric Shapland at eric.shapland@aporter.com with any questions regarding this order. Transcript portion requested: Other: Hearing on SJM. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Shapland, David) (Entered: 08/19/2013)
140 TRANSCRIPT ORDER re: Transcript (CV),, 135 , as to Defendants Donna M Beiter, Eric Shinseki Court Smart (CS). Transcript portion requested: Other: motion hearing 8/16/13. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Bloom, Karen) (Entered: 08/20/2013)
141 ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 116 ; GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT 124 by Judge S. James Otero. This matter is before the Court on Defendants Eric Shinseki and Donna M. Beiter's (collectively, "Defendants" or the "Government") Motion for Summary Judgment ("Defendants' Motion"), filed April 10, 2013, and Plaintiffs Gregory Valentini, Adrian Moraru, Jane Doe, Leroy Smith, Jr., Leslie Richardson, Wayne Early, Willie Floyd, Demetrious Kassitas, Zachary Isaac, Lawrence Green, and the Vietnam Veterans of America's (collectively, "Plaintiffs") Motion for Summary Judgment ("Plaintiffs' Motion"), filed May 10, 2013. Plaintiffs and Defendants filed their respective Oppositions on May 10, 2013, and June 12, 2013, and their respective Replies on June 12, 2013, and June 21, 2013. The Court heard oral argument on the matter on August 16, 2013. For the reasons stated in the ORDER, the Court DENIES Defendants' Motion for Summary Judgment 116 and GRANTS IN PART Plaintiffs' Motion for Summary Judgment 124 . See ORDER for details. (cch) (Entered: 08/29/2013)

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 31 of 36

08/29/2013
09/10/2013 09/23/2013
09/23/2013 09/26/2013 09/27/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 10/02/2013

142 JUDGMENT that the following agreements entered into by the Department of Veterans Affairs (DVA) concerning parcels of land and facilities located on the DVAs West Los Angeles Campus are unauthorized by law and therefore void (SEE DOCUMENT FOR SPECIFIC LIST).The Court STAYS the enforcement of this Judgment with respect to these existing agreements pending the resolution of any appeal from this Judgment, or, if no party appeals this Judgment, for 180 days from the issuance of this Judgment by Judge S. James Otero, (MD JS−6, Case Terminated). (lc) (Entered: 08/29/2013)
143 NOTICE OF DISCREPANCY AND ORDER: by Judge S. James Otero. The document is NOT to be filed, but instead REJECTED, and is ORDERED returned to counsel (bp) (Entered: 09/10/2013)
144 NOTICE OF MOTION AND MOTION to Intervene and MOTION to Vacate Judgment 142 ; memorandum of points and authorities in support thereof; declarations of Kevin Reed and George M Soneff. Motion set for hearing on 10/21/2003 at 10:00 AM before Judge S. James Otero. filed by movant Regents of University of California. (lc) (Additional attachment(s) added on 9/24/2013: # 1 part 2) (lc). (Main Document 144 replaced on 9/25/2013) (lc). (Attachment 1 replaced on 9/25/2013) (lc). (Entered: 09/23/2013)
145 CERTIFICATE OF INTERESTED of Interested Parties filed by movant Regents of University of California, (lc) (lc). (Entered: 09/23/2013)
146 EX PARTE APPLICATION for Order for Granting The Ex Parte Application Of The Regents Of The University Of California For An Order Extending The Time To File A Notice Of Appeal (FRAP Rule 4(a)(5)) filed by Proposed Intervenor Regents of University of California. (Attachments: # 1 Proposed Order)(Soneff, George) (Entered: 09/26/2013)
153 NOTICE OF DISCREPANCY AND ORDER: by Judge S. James Otero, Joinder of Brentwood School in Motin to the Regents of Universidy of California by non party Brentwood School received on 9/26/13 not be filed but rejected and returned to counsel : Lacking Notice of interested party, memorandum of points and authorities and not under separate cover. (lc) (Entered: 10/02/2013)
147 RESPONSE filed by Defendants Donna M Beiter, Eric Shinsekito MOTION to Intervene MOTION to Vacate Judgment,, 142 144 (Layton, Elisabeth) (Entered: 09/30/2013)
148 NOTICE of Errata filed by defendants Donna M Beiter, Eric Shinseki. (Layton, Elisabeth) (Entered: 09/30/2013)
149 RESPONSE filed by Defendants Donna M Beiter, Eric Shinsekito MOTION to Intervene MOTION to Vacate Judgment,, 142 144 (Layton, Elisabeth) (Entered: 09/30/2013)
150 RESPONSE filed by Defendants Donna M Beiter, Eric Shinsekito EX PARTE APPLICATION for Order for Granting The Ex Parte Application Of The Regents Of The University Of California For An Order Extending The Time To File A Notice Of Appeal (FRAP Rule 4(a)(5)) 146 (Layton, Elisabeth) (Entered: 09/30/2013)
151 MEMORANDUM in Opposition to MOTION to Intervene MOTION to Vacate Judgment,, 142 144 filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Ulin, John) (Entered: 09/30/2013)
152 NOTICE OF ERRATA filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. correcting MEMORANDUM in Opposition to Motion, 151 Corrected Declaration of Mark Rosenbaum (Ulin, John) (Entered: 09/30/2013)
154 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE:Beiter and Sinseki Notice (Other) 148 . The following error(s) was found: Incorrect event selected. The correct event is: errata. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 32 of 36

10/03/2013 10/03/2013 10/03/2013 10/03/2013 10/07/2013 10/07/2013 10/10/2013 10/15/2013 10/21/2013
10/21/2013
10/24/2013

stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lc) (Entered: 10/02/2013)
155 NOTICE OF MOTION AND MOTION to Interveve and to vacate the judgment under rule 59(e); memorandum of points and authorities in support filed by movant Brentwood School. Motion set for hearing on 11/4/2013 at 10:00 AM before Judge S. James Otero. Lodged order (lc). Added MOTION vacate Judgment on 10/3/2013 (lc). (Additional attachment(s) added on 10/3/2013: # 1 proposed order) (lc). Modified on 10/3/2013 (lc). (Entered: 10/03/2013)
156 DECLARATION of Michaell Riera PhD in support MOTION to Intervene and to vacate the judgment under Rule 59(e) 155 filed by Movant Brentwood School. (lc) (Additional attachment(s) added on 10/3/2013: # 1 part 2) (lc). (Entered: 10/03/2013)
157 PROOF OF SERVICE filed by movant Brentwood School, re Declaration (Motion related) 156 , MOTION to Intervene 155 served on 9/26/13. (lc) (lc). (Entered: 10/03/2013)
158 CERTIFICATE of Interested Parties filed by movant Brentwood School, identifying Other Affiliate, as Lessee of the Department of Veterans Affairs for Brentwood School. (lc) (lc). (Entered: 10/03/2013)
159 REPLY in Support of MOTION to Intervene MOTION to Vacate Judgment,, 142 144 filed by Movant Regents of University of California. (Soneff, George) (Entered: 10/07/2013)
160 Notice of Appearance or Withdrawal of Counsel: for attorney Debra Wong Yang counsel for Movant Brentwood School. Filed by Proposed Intervenor Brentwood School. (Yang, Debra) (Entered: 10/07/2013)
161 Opposition to the Brentwood School re: MOTION to Intervene MOTION to Set Aside Judgment 155 filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini. (Ulin, John) (Entered: 10/10/2013)
162 NOTICE VACATING HEARING ON MOTION by Judge S. James Otero. The Court finds this matter suitable for disposition without oral argument and vacates the hearing re Motion to Intervene and Motion to Vacate Judgment filed by movant Regents of University of California 144 , set for October 21, 2013. See Fed. R. Civ. P. 78(b). THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vcr) TEXT ONLY ENTRY (Entered: 10/15/2013)
163 NOTICE VACATING HEARING ON MOTION by Judge S. James Otero. The Court finds this matter suitable for disposition without oral argument and vacates the Hearing MOTION to Interveve and to vacate the judgment under rule 59(e); memorandum of points and authorities in support filed by movant Brentwood School. 155 , set for November 4, 2013. See Fed. R. Civ. P. 78(b). THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vcr) TEXT ONLY ENTRY (Entered: 10/21/2013)
164 MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER GRANTING IN PART AND DENYING IN PART THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S MOTION (1) FOR LEAVE TO INTERVENE UNDER RULE 24(a)(2); AND (2) TO VACATE THE JUDGMENT UNDER RULE 59(e) 144 ; GRANTING IN PART AND DENYING IN PART THE BRENTWOOD SCHOOL'SMOTION (1) FOR LEAVE TO INTERVENE UNDER RULE 24(a)(2); AND (2) TO VACATE THEJUDGMENT UNDER RULE 59(e) 155 ; DENYING AS MOOT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA'S EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME TO FILE AN APPEAL 146 . (lc) (Entered: 10/21/2013)
165 NOTICE OF APPEAL to the 9th CCA filed by Intervenor−Defendant Regents of University of California. Appeal of Judgment,, 142 , Order on Motion to Intervene, Order on Motion to Vacate, Order on Ex Parte Application for Order,, Order on Motion to Set Aside Judgment,,,,,,,,,, 164 (Appeal fee of $455 receipt number

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 33 of 36

10/24/2013 10/25/2013 10/25/2013 10/28/2013 10/28/2013 10/29/2013 11/01/2013 11/04/2013 11/25/2013
11/25/2013
11/26/2013
06/12/2014

0973−12883984 paid.) (Attachments: # 1 Representation Statement)(Soneff, George) (Entered: 10/24/2013)
167 NOTIFICATION by Circuit Court of Appellate Docket Number 13−56836, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 165 as to Inervenor Regents of University of California. (car) (Entered: 10/28/2013)
166 NOTICE OF APPEAL to the 9th CCA filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Leslie Richardson, Leroy Smith, Jr, Gregory Valentini. Appeal of Order on Motion to Dismiss Case,,, 70 , Order on Motion for Reconsideration, 87 (Appeal fee of $455 receipt number 0973−12891961 paid.) (Ulin, John) (Entered: 10/25/2013)
171 NOTIFICATION by Circuit Court of Appellate Docket Number 13−56842, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 166 as to Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Leslie Richardson, Leroy Smith, Jr, Gregory Valentini. (mat) (Entered: 10/30/2013)
168 NOTICE OF APPEAL to the 9th CCA filed by Intervenor−Defendant Brentwood School. Appeal of Judgment,, 142 , Order on Motion to Intervene, Order on Motion to Vacate, Order on Ex Parte Application for Order,, Order on Motion to Set Aside Judgment,,,,,,,,,, 164 (Appeal fee of $455 receipt number 0973−12896474 paid.) (Attachments: # 1 Representation Statement)(Floyd, Daniel) (Entered: 10/28/2013)
169 NOTICE OF APPEAL to the 9th CCA filed by defendants Donna M Beiter, Eric Shinseki. Appeal of Judgment,, 142 , Order on Motion for Summary Judgment,,,,,,,,, 141 (Appeal fee FEE WAIVED.) (Attachments: # 1 Representation Statement)(Layton, Elisabeth) (Entered: 10/28/2013)
170 FILING FEE LETTER issued as to Defendants Donna M Beiter, Eric Shinseki, re Notice of Appeal to 9th Circuit Court of Appeals 169 . (dmap) (Entered: 10/29/2013)
172 NOTIFICATION by Circuit Court of Appellate Docket Number 13−56880, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 168 as to Intervenor Brentwood School. (car) (Entered: 11/04/2013)
173 NOTIFICATION by Circuit Court of Appellate Docket Number 13−56887 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 169 as to Plaintiffs Donna M Beiter, Eric Shinseki. (dmap) (Entered: 11/07/2013)
174 TRANSCRIPT ORDER as to Intervenor−Defendant Regents of University of California Court Reporter. Court will contact George Soneff at GSoneff@Manatt.com with any questions regarding this order. Transcript portion requested: Other: 8/16/2013 (Summary Judgment Hearing); 9/8/2011 (Status Conference). Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Soneff, George) (Entered: 11/25/2013)
175 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Transcript Designation and Ordering Form (G−120), 174 . The following error(s) was found: MUST SELECT COURTSMART OPTION(NOT COURT REPORTER OPTION)You must electronically refile the above referenced Request for Transcript in this case to correct this deficiency. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 11/25/2013)
176 TRANSCRIPT ORDER as to Intervenor−Defendant Regents of University of California Court Smart (CS). Court will contact George Soneff at GSoneff@Manatt.com with any questions regarding this order. Transcript portion requested: Other: 8/16/2013 (Summary Judgment Hearing); 9/8/2011 (Status Conference).. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Soneff, George) (Entered: 11/26/2013)
177 NOTICE of Appearance filed by attorney Hector O Villagra on behalf of Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America (Attorney Hector O Villagra added to party Jane Doe(pty:pla), Attorney Hector O Villagra added to party Wayne Early(pty:pla), Attorney Hector O Villagra added to party Willie Floyd(pty:pla), Attorney Hector O

Case: 2:11-cv-4846 As of: 10/31/2017 10:53 AM PDT 34 of 36

11/18/2014 11/21/2014 12/15/2014
12/16/2014 12/16/2014 01/08/2015

Villagra added to party Lawrence Green(pty:pla), Attorney Hector O Villagra added to party Zachary Isaac(pty:pla), Attorney Hector O Villagra added to party Demetrious Kassitas(pty:pla), Attorney Hector O Villagra added to party Adrian Mararu(pty:pla), Attorney Hector O Villagra added to party Adrian Moraru(pty:pla), Attorney Hector O Villagra added to party Leslie Richardson(pty:pla), Attorney Hector O Villagra added to party Leroy Smith, Jr(pty:pla), Attorney Hector O Villagra added to party Gregory Valentini(pty:pla), Attorney Hector O Villagra added to party Vietnam Veterans of America(pty:pla))(Villagra, Hector) (Entered: 06/12/2014)
178 EX PARTE APPLICATION for Temporary Restraining Order as to Preserve Status Quo Pending Appeal and Mem. of P. & A in support thereof. Ex Parte Application filed by Plaintiffs Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Declaration of James J. Finsten in support of Plaintiffs' Ex Parte Application, # 2 Declaration of John C. Ulin in support of Plaintiffs' Ex Parte Application, # 3 Proposed Order Granting Plaintiffs' Ex Parte Application for TRO to Preserve Status Quo Pending Appeal, # 4 Proposed Order to Show Cause Why a Preliminary Injunction Should Not Issue)(Ulin, John) (Entered: 11/18/2014)
179 MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REPRELIMINARY INJUNCTION TO PRESERVE STATUS QUO PENDING APPEAL. (lc) (Entered: 11/21/2014)
182 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 166 filed by Demetrious Kassitas, Leslie Richardson, Leroy Smith, Jr, Jane Doe, Wayne Early, Adrian Mararu, Zachary Isaac, Willie Floyd, Lawrence Green, Gregory Valentini, Notice of Appeal to 9th Circuit Court of Appeals, 165 filed by Regents of University of California, Notice of Appeal to 9th Circuit Court of Appeals, 169 filed by Eric Shinseki, Donna M Beiter, CCA # 13−56836, 13−56842 and 13−56887 and 13−56880. The court sua sponte consolidates appeal Nos. 13−56836, 13−56842, 13− 56880, and 13−56887. These appeals are hereby consolidated. The motion is temporarily granted. The Department of Veterans Affairs is temporarily enjoined from continuing construction on the amphitheater until further order of this court. These consolidated appeals are remanded to the district court for the limited purpose of considering the November 24, 2014 motion for an order preserving the status quo pending appeal. Order received in this district on 12/15/14. [See document for all details] (mat) (Entered: 12/17/2014)
180 NOTICE Notice of Agreed Hearing Date and Lodging of Plaintiffs' November 24, 2014 Emergency Motion for Order Preserving Status Quo Pending Appeal and Related Documents filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. (Attachments: # 1 Emergency Motion for Order Preserving Status Quo Pending Appeal)(Ulin, John) Modified on 12/18/2014 (lc). SET FOR HEARING ON 1/8/2015 10:00 AM before Judge S. James Otero. Modified on 12/18/2014 (lc). (Entered: 12/16/2014)
181 EXHIBIT Filed filed by Plaintiffs Carolina Winston Barrie, Jane Doe, Wayne Early, Willie Floyd, Lawrence Green, Zachary Isaac, Demetrious Kassitas, Adrian Mararu, Adrian Moraru, Leslie Richardson, Chris Romine, Leroy Smith, Jr, Gregory Valentini, Vietnam Veterans of America. as to Notice (Other),, 180 . (Attachments: # 1 Exh. B Declaration of John Ulin ISO Emergency Motion, # 2 Exh C Opposition to Emergency Motion, # 3 Exh D Declaration of Susan Shyshka In Support of Oppposition to Emergency Motion, # 4 Exh. E Reply in Support of Emergency Motion, # 5 Exh. F December 15, 2014 Order of 9th Circuit Court of Appeals)(Ulin, John) (Entered: 12/16/2014)
183 MINUTES OF Motion Hearing held before Judge S. James Otero: RE PLAINTIFFS EMERGENCY MOTION FOR AN ORDER PRESERVING THE STATUS QUO PENDING APPEAL 180 .Court and counsel confer. Plaintiffs Emergency Motion for an Order Preserving the Status Quo Pending Appeal is granted. The Court makes findings as stated on the record.Court Reporter: Debbie Hino−Spaan. (lc) (Entered: 01/08/2015)

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01/08/2015
01/13/2015 01/23/2015
01/27/2015 01/28/2015 02/02/2015
02/05/2015 02/05/2015 02/11/2015

184 ORDER GRANTING PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY RESTRAININGORDER TO PRESERVE STATUS QUO PENDING APPEAL 180 by Judge S. James Otero: Defendants Robert McDonald, in his official capacity as Secretary of theDepartment of Veterans Affairs, and Donna Beiter, in her official capacity as Director of VA Greater Los Angeles Healthcare System, are hereby RESTRAINED andENJOINED from allowing any construction project on the land subject to an Enhanced Sharing Agreement with the Veterans Park Conservancy, including but not limited to the project to build an amphitheater, to proceed, until such time as Plaintiffs Order to Show Cause for a Preliminary Injunction to Preserve Status Quo Pending Appeal may be heard. (lc) (Entered: 01/08/2015)
185 TRANSCRIPT ORDER re: Order on Ex Parte Application for Order,, Motion Hearing, 183 , as to Defendants Eric Shinseki Court Reporter. Transcript portion requested: Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Layton, Elisabeth) (Entered: 01/13/2015)
186 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 165 filed by Regents of University of California, Notice of Appeal to 9th Circuit Court of Appeals, 168 filed by Brentwood School, Notice of Appeal to 9th Circuit Court of Appeals, 166 filed by Demetrious Kassitas, Leslie Richardson, Leroy Smith, Jr, Jane Doe, Wayne Early, Adrian Mararu, Zachary Isaac, Willie Floyd, Lawrence Green, Gregory Valentini, Notice of Appeal to 9th Circuit Court of Appeals, 169 filed by Eric Shinseki, Donna M Beiter, CCA # 13−56836, 13−56842 and 13−56887 and 13−56880. The limited remand established by this courts December 15, 2014 order is therefore terminated. The temporary injunction granted in this courts December 15, 2014 order is also terminated as unnecessary. Order received in this district on 1/23/15. See document for all details] (mat) (Entered: 01/26/2015)
187 Notice of Appearance or Withdrawal of Counsel: for attorney Daniel S Floyd counsel for Intervenor Brentwood School. Alexander M. Fenner is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Intervenor Brentwood School. (Floyd, Daniel) (Entered: 01/27/2015)
188 NOTICE OF MOTION AND Joint MOTION for Order for Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1 filed by defendants Donna M Beiter, Eric Shinseki. Motion set for hearing on 3/2/2015 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Declaration of Gary L. Blasi, # 2 Declaration of Stephen R. Bauman, # 3 Declaration of Elisabeth Layton, # 4 Proposed Order)(Layton, Elisabeth) (Entered: 01/28/2015)
189 ORDER GRANTING JOINT MOTION FOR INDICATIVE RULING PURSUANT TO RULE 62.1 188 by Judge S. James Otero. Upon consideration of the Joint Motion By Plaintiffs And Government Defendants For Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1, as to how this Court would rule on a joint motion pursuant to Fed. R. Civ. P. 60(b) to vacate its final judgment and post−judgment injunction to preserve the status quo pending appeal, in the interests of justice the Court states that, should this case be remanded by the Court of Appeals for purposes of ruling on a motion for such vacatur pursuant to Rule 60(b), this Court would grant such a motion and vacate this Court's final judgment in this matter, including the prior rulings dated March 16, 2012; June 19, 2012; August 29, 2013. In addition, this Court would vacate its January 8, 2015 injunction to preserve the status quo pending appeal. IT IS SO ORDERED. (lom) (Entered: 02/02/2015)
190 TRANSCRIPT for proceedings held on 1/8/2015; 10:22 a.m.; Court Reporter, DEBBIE HINO−SPAAN; E−mail, dhinospaan@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 2/26/2015. Redacted Transcript Deadline set for 3/8/2015. Release of Transcript Restriction set for 5/6/2015. (dhs) (Entered: 02/05/2015)
191 NOTICE OF FILING TRANSCRIPT filed for proceedings 1/8/2015; 10:22 a.m re Transcript 190 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT ONLY ENTRY (Entered: 02/05/2015)
192 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 165 filed by Regents of University of California, Notice of Appeal to 9th Circuit Court of Appeals, 168 filed by Brentwood School, Notice of Appeal to 9th Circuit Court of

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02/13/2015 02/17/2015 03/23/2015
03/26/2015

Appeals, 166 filed by Demetrious Kassitas, Leslie Richardson, Leroy Smith, Jr, Jane Doe, Wayne Early, Adrian Mararu, Zachary Isaac, Willie Floyd, Lawrence Green, Gregory Valentini, Notice of Appeal to 9th Circuit Court of Appeals, 169 filed by Eric Shinseki, Donna M Beiter, CCA # 13−56836, 13−56842, 13−56880 and 13−56887. The unopposed February 5, 2015 joint motion for remand is granted. See Fed. R. App. P. 12.1(b). These consolidated appeals are remanded to the district court for the limited purpose of enabling the district court to consider a joint Federal Rule of Civil Procedure 60(b) motion. Within 60 days after the date of this order or within 7 days after the district courts ruling on the Rule 60(b) motion, whichever occurs first, the parties shall file a report on the status of district court proceedings and motion for appropriate relief. The briefing schedule for these consolidated appeals is stayed pending further order of the court. Order received in this district on 2/11/15. (mat) (Entered: 02/12/2015)
193 NOTICE OF MOTION AND Joint MOTION for Relief from Final Judgment re USCA Order,,,,, 192 , Joint MOTION for Order for Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1 188 , Order on Motion for Order,,, 189 filed by government defendants Donna M Beiter, Eric Shinseki. Motion set for hearing on 3/16/2015 at 10:00 AM before Judge S. James Otero. (Attachments: # 1 Proposed Order)(Layton, Elisabeth) (Entered: 02/13/2015)
194 ORDERED that the Joint Motion To Vacate Judgment Pursuant To Fed. R.Civ. P. 60(b) is hereby GRANTED without prejudice 193 ; and it is further ORDERED that this Courts final judgment, which includes all rulings and orders that have merged into its final judgment, including but not limited to the orders entered on March 16, 2012; June 19, 2012; and August 29, 2013, is hereby VACATED; and it is further ORDERED that the Courts Injunction Pending Appeal, entered on January 8, 2015, is hereby VACATED by Judge S. James Otero. (lc) (Entered: 02/17/2015)
195 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal 165 filed by Regents of University of California, Notice of Appeal 168 filed by Brentwood School, Notice of Appeal to 9th CCA, 166 filed by Demetrious Kassitas, Leslie Richardson, Leroy Smith, Jr, Jane Doe, Wayne Early, Adrian Mararu, Zachary Isaac, Willie Floyd, Lawrence Green, Gregory Valentini, Notice of Appeal to 9th Circuit Court of Appeals, 169 filed by Eric Shinseki, Donna M Beiter. CCA # 13−56836, 13−56842, 13−56880 and 13−56887. The joint motion to dismiss these consolidated appeals as moot is granted. These consolidated appeals are dismissed. See 28 U.S.C. § 1291; Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). The parties have agreed that each party will bear its own costs. This order served on the district court shall act as and for the mandate of this court for these consolidated appeals. [See document for all details] (mat) (Entered: 03/25/2015)
196 Joint STIPULATION to Dismiss Case filed by All Parties Donna M Beiter, Eric Shinseki.(Layton, Elisabeth) (Entered: 03/26/2015)


[CONTENT] June 8, 2011 | the United States | District Court | the Central District | California | the Department of Veterans' Affairs | Section 504 of the Rehabilitation Act ||| VHA ||| the West Los Angeles Medical Center & Community Living Center | WLA ||| VHA ||| WLA |||  |||  |||  ||| Aug. 12, 2011 | the Administrative Procedure Act | 5 | U.S.C. | § | 551 ||| Mar. 16, 2012 | S. James Otero ||| 860 ||| 2d 1079 ||| the Ninth Circuit | Veterans | 644 | 845 | Mar. 16 ||| Ninth Circuit | Veterans | 678 | 1013 ||| Rehabilitation Act | second |||  ||| 2012 | 12882704 |||  |||  ||| Aug. 29, 2013 ||| 2013 | 12121981 ||| Oct. 21, 2013 | the Ninth Circuit | Oct. 24 ||| Jan. 28, 2015 ||| Greater LA |||  ||| VA ||| Feb. 17, 2015 | the Ninth Circuit ||| Mar. 26, 2015 ||| Clearinghouse [SUMMARY] On June 8, 2011, several veterans, on behalf of all homeless veterans suffering from disabilities caused by their military service, filed a lawsuit in the United States District Court for the Central District of California against the Department of Veterans' Affairs alleging violations of state law and Section 504 of the Rehabilitation Act. The plaintiffs, represented by public interest and private counsel, asked the court for an injunction requiring the defendants to provide the plaintiff class with permanent supportive housing that accommodates their disabilities so that they can access the VHA benefits for which they are eligible.  They also requested that the court enjoin defendants from using the West Los Angeles Medical Center & Community Living Center campus (WLA Campus) for any purpose that is not directly related to housing veterans with disabilities and to require an accounting of profits of all money received for land use agreements for the WLA campus. The plaintiffs asked the court to declare that the design and implementation of the VHA benefits program was discriminatory and that plaintiffs were being denied meaningful access to benefits by defendants because of their disabilities. 

Specifically, the plaintiff claimed that the WLA campus was intended, under the grant that established it, to provide housing and services for veterans with disabilities. By entering into land use agreements with commercial and non-DVA entities, defendants violated the grant, which plaintiffs argued was a charitable trust. Additionally, plaintiffs alleged that there was never a public accounting of the transactions. Plaintiffs claimed that this lack of housing prevented the plaintiffs from meaningfully accessing the veterans' benefits to which they were entitled.

An amended complaint filed Aug. 12, 2011 added claims under the Administrative Procedure Act (5 U.S.C. §§ 551 et seq.). 

On Mar. 16, 2012, the court (Judge S. James Otero) dismissed in part the plaintiff's claims. 860 F. Supp. 2d 1079. After the Ninth Circuit vacated <i>Veterans for Common Sense v. Shinseki</i>, 644 F.3d 845, on which the court had relied, it reconsidered the Mar. 16 ruling. Eventually, the en banc Ninth Circuit issued <i>Veterans for Common Sense v. Shinseki</i>, 678 F.3d 1013. Based on that decision, the court found that it lacked jurisdiction over the plaintiffs' Rehabilitation Act claims because resolving the claims would require the court to second-guess the government's determination about what benefits specific veterans were entitled to. But the court let the plaintiffs' Administrative Procedure Act claims proceed because they did not turn on questions about specific veterans' benefits. 2012 WL 12882704. 

Mediation was attempted during the course of proceedings, but it proved unsuccessful. Following the mediation, both parties moved for summary judgment. 

On Aug. 29, 2013, the court entered judgment in favor of the plaintiff, declaring the land use agreements that defendant had with non-healthcare organizations were unauthorized by law and therefore void. 2013 WL 12121981.

The defendants moved to vacate the judgment, which was denied on Oct. 21, 2013, and then appealed to the Ninth Circuit on Oct. 24. Meanwhile, the parties continued to attempt to find resolution outside of the courtroom, and filed notice of their decision to end litigation on Jan. 28, 2015. The parties stated that they would work together to create a strategy and action plan for veteran homelessness in Greater LA. The final plan was to address chronic homelessness through evidence-based methods and with input from all stakeholders. The VA would address various issues related to creating a plan for the WLA Campus, including bridge housing, permanent supportive housing, and land use agreements.

On Feb. 17, 2015, pursuant to a joint motion to vacate, the Ninth Circuit vacated the district court's judgment. The parties filed joint stipulation to dismiss the case on Mar. 26, 2015. The Clearinghouse does not know whether the parties agreed to a final plan after the case was dismissed or what changes, if any, occurred at the WLA Campus because of this suit. 