[00:00:05] Speaker 05:
Daniel Winnick for the government.

[00:00:09] Speaker 05:
I'll aspirationally reserve four minutes for rebuttal.

[00:00:12] Speaker 05:
There are three legal issues I'd like to focus on today, but before I get to that, let me start by recognizing that the plaintiffs here are facing significant challenges, and VA believes it's vital to house as many veterans as possible, both in Los Angeles and around the country.

[00:00:25] Speaker 05:
And VA believes it's essential to use the West LA campus responsibly as a component of those efforts in Los Angeles.

[00:00:31] Speaker 05:
And there's real progress happening

[00:00:33] Speaker 05:
on the campus today.

[00:00:34] Speaker 05:
Among other things, the number of permanent supportive housing units has nearly doubled and I think later this week will more than have doubled since the time of trial.

[00:00:42] Speaker 05:
So the question in this case is not whether efforts to house homeless veterans are important.

[00:00:46] Speaker 05:
They clearly are.

[00:00:47] Speaker 05:
The question is whether the VA can follow its master plan for the campus and develop housing in the manner contemplated by that carefully designed plan or whether it has to upend the master plan and its broader housing strategy in Los Angeles

[00:01:00] Speaker 05:
to build housing in a particular type and quantity and location prescribed by Judge Carter.

[00:01:05] Speaker 05:
For the reasons we lay out in our briefs, we think Judge Carter erred in effectively taking over control of the campus from VA.

[00:01:11] Speaker 05:
The three issues I'd like to focus on today, subject of course to the court's questions, are the VJRA, the merits of the Rehab Act claims, including the class treatment of some of those claims, and the charitable trust claim.

[00:01:23] Speaker 05:
And as to both the VJRA and the Rehab Act Meaningful Access Claim, I think it's useful to start by just

[00:01:29] Speaker 05:
imagining a randomly selected member of the plaintiff class, a homeless veteran in Los Angeles with serious mental illness or traumatic brain injury.

[00:01:38] Speaker 05:
And if I said, does that person have meaningful access to his VA health care benefits, you would not know the answer without knowing more information about the person.

[00:01:47] Speaker 05:
You'd need to know things like, are the health care services that that person needs available only on the campus, or are they available at VA's various satellite locations in neighborhoods around Los Angeles?

[00:02:00] Speaker 05:
Where does the person live relative to the facility or facilities where he can get the care he needs?

[00:02:05] Speaker 05:
Does he have means of getting to the facilities?

[00:02:07] Speaker 05:
If it takes a long time, does he have any physical disabilities or other challenges that make that particularly difficult?

[00:02:13] Speaker 06:
Council, I have a question for you.

[00:02:15] Speaker 06:
So under your broad interpretation of the VJRA, is jurisdiction precluded on any and all laws and statuses that touch on veteran's benefits?

[00:02:27] Speaker 05:
Well, so the language of the statute is necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans.

[00:02:35] Speaker 05:
So I think that's the answer is it covers determinations or any law that affects the provision of benefits.

[00:02:40] Speaker 05:
That certainly includes the Rehabilitation Act.

[00:02:43] Speaker 05:
That's clear from the history of the VJRA as recounted in VCS.

[00:02:47] Speaker 05:
you know, the VJRA was enacted in response to the Supreme Court's decision in Treanor versus Turnage, which allowed federal jurisdiction over a claim that a VA regulation was inconsistent with the Rehabilitation Act.

[00:02:59] Speaker 06:
And how do we square that with the current precedent, which states that we must construe jurisdictional stripping statutes narrowly?

[00:03:08] Speaker 05:
So I don't think there's any question of jurisdiction stripping here, because there is no question that there is going to be federal judicial review of a claim

[00:03:16] Speaker 05:
that a veteran needs housing or some other accommodation to access his benefits.

[00:03:20] Speaker 05:
The question is just does that review happen in the district court in the first instance or does it happen only through the specialized means of judicial review provided by the VJRA, first in the veterans court and then in the federal circuit?

[00:03:33] Speaker 07:
So let me make sure I understand.

[00:03:34] Speaker 07:
Your argument isn't that supportive housing is a benefit under Title 38, but instead it is

[00:03:42] Speaker 07:
question that goes to whether or not benefits can be accessed?

[00:03:47] Speaker 05:
I think it's not so much our argument as their claim.

[00:03:49] Speaker 05:
The nature of their claim, as I understand it, and this is how the district court characterized it and the district court in Valentini characterized it, is that supportive housing is an accommodation that is necessary for veterans to access their health care benefits.

[00:04:02] Speaker 05:
So I agree, supportive housing is not a benefit in and of itself.

[00:04:06] Speaker 05:
Their claim, I think, is that you need housing as an accommodation in order to be able to access

[00:04:12] Speaker 05:
your veteran's benefits, and that's exactly why a claim for this type of accommodation or any other accommodation to access a healthcare benefit properly proceeds through the VA benefits process.

[00:04:23] Speaker 05:
You have a veteran bringing a claim like that, is claiming that he's entitled to a benefit that he's not able to receive.

[00:04:31] Speaker 05:
He's not receiving as the law requires, and so it's the proper means of pursuing that claim, like any other benefits claim, is to start with the agency.

[00:04:38] Speaker 05:
to exhaust it through the agency, go to the Board of Veterans' Appeals if necessary, and then seek judicial review in the Veterans Court and the Federal Circuit.

[00:04:46] Speaker 05:
It's not to come to district court in the first instance.

[00:04:49] Speaker 05:
That's what the Valentini District Court recognized after this Courts on Bank decision in Veterans for Common Sense, because exactly as was true of the delay-related claims in that case, it's not possible to decide whether a veteran needs an accommodation to access his benefits without

[00:05:07] Speaker 05:
looking at the VA's provision of benefits to that veteran.

[00:05:12] Speaker 08:
So I guess I'm just speaking for myself right now because we don't conference before.

[00:05:16] Speaker 08:
But I'm not really persuaded by your argument on that point.

[00:05:20] Speaker 08:
I'm just going to tell you on that.

[00:05:22] Speaker 08:
But I'm going to tell you where and also when I look at historically from when it came in the first place that it's really hard to say that the VA has done a good job.

[00:05:36] Speaker 08:
It's pretty difficult.

[00:05:37] Speaker 08:
And even after Valentini, not much happened.

[00:05:41] Speaker 08:
And when I look at some of the leases, I'm wondering how they benefited the veterans as far as that goes.

[00:05:49] Speaker 08:
So where my concerns come in are, well, I guess I'm tipping my hand a little bit.

[00:05:59] Speaker 08:
I mean, obviously, I could be persuaded.

[00:06:01] Speaker 08:
But when I start getting into the Olmstead claims,

[00:06:05] Speaker 08:
Do you concede that any of them, if you lose on, if you get over the same that we're not stripped of jurisdiction here and if the class is okay, if you get to the claims, do you concede that any of those claims have any merit?

[00:06:24] Speaker 05:
No.

[00:06:25] Speaker 05:
Obviously, I disagree with the premises, but I'll take them as a given for answering the question.

[00:06:29] Speaker 08:
I'm not saying that that represents the panel or whatever, that I couldn't change my mind.

[00:06:33] Speaker 05:
Of course, no.

[00:06:34] Speaker 05:
Even if the court had jurisdiction and even if the certification of a class were proper, we think all of the claims fail on the merits.

[00:06:41] Speaker 05:
And I'm happy to talk about any that the court wants to hear about.

[00:06:44] Speaker 05:
You asked, Your Honor, posited first the Olmstead claim.

[00:06:48] Speaker 05:
I mean, I read plaintiffs in their response brief virtually to have abandoned the theory that Olmstead requires

[00:06:54] Speaker 05:
the provision of housing here.

[00:06:55] Speaker 05:
In the one paragraph where they talk in response to our arguments at Olmstead about why VA has a legal obligation to build housing, they sort of point to statements that VA has made about its moral obligation or its responsibility to build housing.

[00:07:08] Speaker 05:
They don't try to tie it to Olmstead, and it's for very good reason.

[00:07:11] Speaker 05:
Olmstead is a case and a doctrine about ensuring that when government entities provide services to a population, that they don't create unnecessary

[00:07:21] Speaker 05:
segregation of disabled people or a serious risk of unnecessary segregation.

[00:07:27] Speaker 05:
So Olmstead itself, for example, you had people who were being warehoused when they could have been treated in the community, and the Supreme Court held that they needed to be treated in the community.

[00:07:35] Speaker 05:
There's nothing like that here.

[00:07:37] Speaker 05:
The district court's theory basically was that homelessness itself creates risks of hospitalization or jail stints, and therefore the district court thought the VA had to do everything possible to prevent hospitalizations or jail stints.

[00:07:51] Speaker 05:
among veterans because VA has, you know, cares for veterans in certain ways.

[00:07:55] Speaker 05:
That's not what Olmstead means.

[00:07:56] Speaker 08:
No, but if you look at this historically and so from when the original grant and then I think there was an additional 300 acres and somehow it turns out to be pretty valuable property.

[00:08:09] Speaker 08:
And when you look at things that have occurred on this property, I struggle with how some of the things that the VA did

[00:08:20] Speaker 08:
benefited veterans at all.

[00:08:24] Speaker 08:
How when I look at one of the schools that they say they let them use the pool or let the in, but it was almost like there's like one minute in the day when you could actually get where that could work.

[00:08:40] Speaker 08:
UCLA I would put in a different category.

[00:08:43] Speaker 08:
I don't know how the drilling oil, I don't know how any of that benefited the

[00:08:50] Speaker 08:
how any of that benefited.

[00:08:53] Speaker 08:
But then when I get to the point, I guess Judge Carter basically said that he's going to run the VA now, because you've done such a bad job, right?

[00:09:02] Speaker 08:
I think that's a fair characterization of his decision.

[00:09:06] Speaker 08:
And as an Article III judge, that is not, you know, I think somewhere a long time ago we decided we were going to run the prisons, and I don't know how that's worked out.

[00:09:20] Speaker 08:
I guess the remedies here are what cause me concern, the reach of what Judge Carter.

[00:09:28] Speaker 08:
But then on the other hand, I don't think historically, when I look at everything here, I see why I don't think the VA has done a good job with the veterans.

[00:09:39] Speaker 08:
So what's proper other than running the VA?

[00:09:45] Speaker 05:
So I think there's a few questions there.

[00:09:46] Speaker 05:
Let me try to answer them all.

[00:09:47] Speaker 05:
First.

[00:09:47] Speaker 05:
I know.

[00:09:48] Speaker 08:
There's a lot there, but I'm just sort of telling you on a visceral level.

[00:09:51] Speaker 05:
And I appreciate it.

[00:09:51] Speaker 08:
Some of the things that, and I'm going to decide it legally.

[00:09:55] Speaker 08:
And I also, too, when I look at the charitable trust argument, because my understanding on the charitable trust, that's what applies to UCLA.

[00:10:04] Speaker 08:
And if there is no charitable trust, then that would vacate UCLA, right?

[00:10:09] Speaker 05:
Right.

[00:10:09] Speaker 05:
So to start with sort of the basic thrust of your honor's question.

[00:10:11] Speaker 08:
But what did you get this property for?

[00:10:13] Speaker 08:
It looks like, to me,

[00:10:15] Speaker 08:
it seemed pretty clear that it was for the benefit of the veterans.

[00:10:19] Speaker 08:
And there's a lot of things that have gone on throughout the years that there's been pushback that you were not doing things for the benefit of the veterans.

[00:10:26] Speaker 05:
So I don't disagree with that.

[00:10:28] Speaker 05:
And the VA has recognized it hasn't always lived up to its obligations in the past.

[00:10:32] Speaker 05:
Nobody's disputing that here.

[00:10:33] Speaker 05:
I'd make a couple of important points.

[00:10:35] Speaker 05:
One, the government is not here appealing on the land use issues.

[00:10:38] Speaker 05:
So we're not defending here on the merits, the UCLA lease, the Brentwood lease, the Bridgen lease.

[00:10:43] Speaker 05:
That's not the premise.

[00:10:45] Speaker 05:
of our appeal.

[00:10:45] Speaker 05:
Our appeal is that it was error for Judge Carter to rule against us on the Rehabilitation Act claims and on the Charitable Trust claim and that Judge Carter erred in ordering the construction of large quantities of housing.

[00:11:00] Speaker 05:
And so even if you think that VA's historical management of the campus was not proper, even if for that matter you think that the three particular leases before you today were not valid, none of that is contested in our appeal.

[00:11:13] Speaker 05:
The premise of our appeal is there was no, the VJRA bars jurisdiction, the class was improperly certified on the Rehabilitation Act claims seeking housing.

[00:11:22] Speaker 05:
Those claims all fail on the merits and the charitable trust claim also fails on the merits.

[00:11:28] Speaker 08:
Tell me why that's true.

[00:11:29] Speaker 08:
I mean, what, the property surely seems that it was given for the benefit of the veterans.

[00:11:40] Speaker 05:
I agree that that was the purpose for which the property was given.

[00:11:44] Speaker 05:
There are three different grounds on which the charitable trust claim fails.

[00:11:47] Speaker 05:
The cleanest one, the simplest path to resolving this claim is that even if the plaintiffs have standing to bring the claim, which is one problem with it, and even if the 1880 deed not only states a purpose of the gift but actually imposes a trust duty, which is the second problem, the duty isn't judicially enforceable.

[00:12:05] Speaker 05:
The trust duties aren't judicially enforceable against the government unless the government has unambiguously accepted them and provided for judicial enforcement.

[00:12:13] Speaker 05:
And there's just no basis for finding that requirement.

[00:12:16] Speaker 08:
Why doesn't the 2016 Leasing Act and the Master Plan constitute Congress's acceptance of fiduciary obligations as set forth in the 1888 deed?

[00:12:27] Speaker 05:
So there's two distinct questions.

[00:12:28] Speaker 05:
One is whether they accept fiduciary obligations, and the other is whether they provide for judicial enforcement.

[00:12:33] Speaker 05:
I don't think they do the first.

[00:12:34] Speaker 05:
I don't think they accept fiduciary obligations.

[00:12:36] Speaker 05:
But I think it's really clear that they don't do the second.

[00:12:38] Speaker 05:
There's not a word in the Leasing Act about judicial enforcement of any duties created by the Act.

[00:12:44] Speaker 05:
And quite to the contrary, the Act says about as much as you could say to make clear that Congress was envisioning political accountability for violations of the Leasing Act.

[00:12:53] Speaker 05:
That's why it provided for IG reports and investigations, for notifications to Congress before VA enters leases, and so forth.

[00:13:01] Speaker 05:
the leasing act says about accountability for the requirements the act sets forth is political rather than judicial in nature.

[00:13:08] Speaker 05:
And, you know, again, in order to find judicial enforceability of trust obligations, you need a clear statement to that effect.

[00:13:15] Speaker 05:
So in 2 USC 159, which the district court noted in Valentini, I think you have an example of what a clear acceptance of judicial enforcement looks like, that the statute there says,

[00:13:26] Speaker 05:
the governmental entity may be, quote, may be sued in the United States District Court for the District of Columbia for the purpose of enforcing the provisions of any trust accepted by it.

[00:13:34] Speaker 08:
So didn't you renegotiate leases after the 2016 Leasing Act?

[00:13:40] Speaker 05:
There were some changes to leases after the Leasing Act, yes.

[00:13:43] Speaker 08:
So if we agree that the district court, that the land lease agreements violate the plaintiff's rights, what would be the appropriate remedy?

[00:13:56] Speaker 08:
Why doesn't the VA's failure to abide by the 2016 Leasing Act and the settlement in Valentini litigation support the issuance of a mandatory injunction?

[00:14:09] Speaker 05:
So if the court concludes that the leases are invalid, and again... I'm just kind of going through all of these.

[00:14:14] Speaker 05:
Of course.

[00:14:15] Speaker 05:
If the court concludes the leases, the three leases disputed here are invalid, and these are not issues raised in the government's appeal.

[00:14:20] Speaker 05:
So if you think they're invalid, the court was wrong

[00:14:24] Speaker 05:
to go beyond holding the leases invalid and enjoying us against entering into further leases?

[00:14:31] Speaker 05:
Correct.

[00:14:31] Speaker 08:
But more generally, all of that... So the new leases, okay, the new leases, let's assume you have that authority, and it seems that you may.

[00:14:41] Speaker 08:
But since you didn't exercise it wisely in the past, why can't the district court impose something on you to say,

[00:14:51] Speaker 08:
you know, I want to take a look at the leases before you fully execute them.

[00:14:56] Speaker 05:
Because that would be well beyond the court's powers under the APA.

[00:14:59] Speaker 05:
I mean, for the same reason that when a court holds a rule invalid under the APA, it doesn't say to the agency, you have to bring any new rule on this subject for preclearance to me.

[00:15:07] Speaker 05:
The rule is that the agency tries again and if somebody wants to challenge the new action under the APA, it can do so.

[00:15:14] Speaker 08:
But just... So let's just assume and I'm not saying this is that you did bad leases before.

[00:15:20] Speaker 08:
that you weren't looking for benefits to the veterans.

[00:15:24] Speaker 08:
But let's assume that you have the authority to do new leases.

[00:15:27] Speaker 08:
So then the remedy to that is then you get sued for those if you don't do a good job.

[00:15:33] Speaker 08:
That's right.

[00:15:34] Speaker 08:
Rather than having the district court in this sense oversee your ability to

[00:15:41] Speaker 05:
enter into new leases right there's there's no authority for the district court to superintend on a going forward basis of the VA's entire sort of management of its land and I would just note and this is quite important even if you disagreed with all of that none of it provides a basis for the district court to order the construction of massive quantities of housing beyond what the master plan

[00:16:01] Speaker 05:
contemplates, and the district court did that only under the Rehabilitation Act claims, which, again, fail for numerous reasons.

[00:16:07] Speaker 05:
They're jurisdictionally barred by the VJRA.

[00:16:10] Speaker 05:
We think that's clear under Veterans for Common Sense.

[00:16:12] Speaker 05:
The certification of a class was improper because, as I laid out at the beginning, in order to know whether anybody has been deprived of meaningful access to his VA healthcare benefits, you have to know all sorts of facts specific to that person.

[00:16:24] Speaker 05:
And even if you got past both of those hurdles just on the merits,

[00:16:28] Speaker 05:
There is no basis in the record to reach the legal conclusion that VA deprived the plaintiff class of meaningful access to benefits, that VA created a serious risk of institutionalization under Olmstead, and therefore no basis for the court to impose the large housing obligation that it did.

[00:16:47] Speaker 05:
And that's even before getting to our defense under our fundamental alteration defense, which the district court barely considered.

[00:16:55] Speaker 05:
I see I'm cutting into my rebuttal time.

[00:16:57] Speaker 05:
I'm happy to answer further questions that the panel has.

[00:16:59] Speaker 06:
I want you to talk a little bit more about your fundamental alteration defense.

[00:17:04] Speaker 06:
How does constructing the extra housing on the campus altered the VA's program?

[00:17:09] Speaker 05:
So, you know, there was extensive testimony in the record from John Kuhn, who was the Deputy Medical Director of the VA in Los Angeles, about how

[00:17:18] Speaker 05:
The VA's housing sort of vision, what it tries to do is create a diverse range of housing options for veterans of varying needs and preferences all over LA, not just to create housing of one type in one place that people may not want.

[00:17:31] Speaker 06:
And so... Have any studies been done as to whether the veterans want it?

[00:17:36] Speaker 05:
I don't know the answer to that question but the relevant.

[00:17:41] Speaker 06:
Right now it appears that the options provided to the veterans is you're homeless or we'll provide you housing on the campus.

[00:17:48] Speaker 06:
So I guess my question is I get that the VA says hey we have the ultimate say we're the ones who get to determine this.

[00:17:55] Speaker 06:
How's that question even been asked?

[00:17:57] Speaker 06:
I mean is there any way for you to know?

[00:17:59] Speaker 06:
I know you're, you know, the government's telling us, look, district court couldn't do this.

[00:18:03] Speaker 06:
District court, you know, doesn't have the right or the, you know, jurisdictional authority to do it.

[00:18:08] Speaker 06:
They're speaking for us.

[00:18:09] Speaker 06:
They're standing in our shoes.

[00:18:11] Speaker 06:
I guess what I'm asking is, what are you doing for the veterans?

[00:18:14] Speaker 06:
What are you doing to ensure that they do have housing, whether it's on the campus or not?

[00:18:19] Speaker 06:
It'd be different if you came and said, your honor, we've done a study.

[00:18:22] Speaker 06:
They don't want to be on the campus.

[00:18:23] Speaker 06:
They prefer to be,

[00:18:25] Speaker 06:
I don't know, 20 miles away.

[00:18:26] Speaker 05:
I don't have a study, but VA is making extensive efforts in LA as it is elsewhere to ensure that veterans, all veterans have a safe and stable place to be housed.

[00:18:34] Speaker 05:
So the efforts on the campus itself, as I noted, since the time of trial, the number of permanent supportive housing units has almost doubled from 233.

[00:18:43] Speaker 05:
What is that number, okay.

[00:18:44] Speaker 05:
Yeah, so it was 233 at the time of trial.

[00:18:46] Speaker 05:
Right now, I think it's 370-something, and by later this week or next week, I expect it will be 497.

[00:18:53] Speaker 05:
There are about 3,000 homeless veterans in Los Angeles, so 497 is a pretty decent chunk.

[00:18:58] Speaker 05:
There is plans to construct the remaining housing envisioned by the master plan through about 2030.

[00:19:06] Speaker 05:
VA also makes extensive efforts to provide housing through the HUD-VASH program with HUD vouchers with VA supportive services.

[00:19:14] Speaker 05:
Those are also efforts the government is constantly endeavoring to improve.

[00:19:18] Speaker 05:
There have been recent changes.

[00:19:20] Speaker 05:
For example, that will have the effect of increasing the voucher amount in the local area.

[00:19:24] Speaker 05:
So VA is making lots of efforts.

[00:19:25] Speaker 05:
Those efforts are paying off from 2023 to 2024.

[00:19:28] Speaker 05:
The number of homeless veterans in Los Angeles declined by about a quarter.

[00:19:33] Speaker 05:
I am not here telling you everything the government is doing is perfect, and I'm certainly not saying everything that happened on the campus in the past is perfect.

[00:19:39] Speaker 05:
But the relevant question here is, does VA get to continue the program it is trying to carry out consistent with its resources and its legal authorities?

[00:19:47] Speaker 05:
Or does the district court get to impose an ongoing, you know, superintendents of VA's operations on the campus?

[00:19:53] Speaker 05:
And we think the answer is clearly the former.

[00:19:57] Speaker 08:
All right.

[00:19:57] Speaker 08:
We've asked you a lot of questions.

[00:19:59] Speaker 08:
So I'll give you two minutes for rebuttal.

[00:20:01] Speaker 05:
Thank you, Your Honor.

[00:20:01] Speaker 08:
Thank you.

[00:20:10] Speaker 04:
Good morning, Judge Callahan.

[00:20:11] Speaker 04:
Could I reserve 90 seconds for rebuttal?

[00:20:14] Speaker 08:
Well, you could try.

[00:20:19] Speaker 04:
Your honor, you were correct that UCLA Ray Cardozo representing the Regents of the University of California.

[00:20:26] Speaker 09:
Thank you.

[00:20:27] Speaker 04:
And you are correct that UCLA case is different from all the others because this 2016 West Los Angeles Leasing Act has a distinct provision applicable only to the Regents that explicitly authorized the use of this land for baseball, knowing it was going to be used for baseball.

[00:20:48] Speaker 04:
based upon the other activities of the campus.

[00:20:51] Speaker 04:
So whereas all of the other leases are subject to a requirement that the lease itself must primarily benefit veterans, there's a different provision applicable to the regents that basically says you get to keep using it for baseball.

[00:21:09] Speaker 04:
You have to continue the vast amount of medical services you're providing to veterans under the medical affiliation agreement.

[00:21:17] Speaker 04:
And then you have to add in these in-kind pro bono services in the statutory languages in the extent and the manner that the secretary deems appropriate.

[00:21:29] Speaker 08:
So we have a couple of issues with you.

[00:21:31] Speaker 08:
One is the district court didn't let you intervene, but you waited plenty of time before you did that.

[00:21:38] Speaker 08:
I don't have any idea what the reasons were.

[00:21:40] Speaker 08:
So we have to decide whether on that motion whether, but then,

[00:21:45] Speaker 08:
Let's say we if, and then hypothetically, if we don't allow you, if you don't win on the intervention, then the next issue is we'll have to, we have to look at it and if we think, because Judge Carter, my understanding is he granted summary judgment on the UCLA lease for avoiding it, right?

[00:22:06] Speaker 04:
What did he do?

[00:22:07] Speaker 04:
No.

[00:22:07] Speaker 04:
After a trial in which UCLA wasn't present and the claim was orally added in closing argument,

[00:22:13] Speaker 07:
You were given notice by the VA in January of 2024, correct?

[00:22:18] Speaker 04:
You're given notice that this... Is the answer to my question, yes.

[00:22:22] Speaker 04:
You... Not notice of the claim that was orally added, which was the only claim made that the lease is illegal.

[00:22:28] Speaker 07:
So notice of the litigation was provided.

[00:22:31] Speaker 07:
Maybe you can explain how, in your view, your motion to intervene was timely, given the delay.

[00:22:39] Speaker 07:
Sure.

[00:22:40] Speaker 04:
And I'll start with the...

[00:22:42] Speaker 04:
Oral amendment which admits the claim wasn't played and UCLA is not present at this trial Although your honor plaintiffs did not specifically name UCLA in the complaint.

[00:22:51] Speaker 04:
We now seek to amend the complaint to conform to the extensive proof There's admission.

[00:22:55] Speaker 04:
They haven't pleaded the claim.

[00:22:57] Speaker 06:
That's at er 1191, but they do say conform to proof and you it's my understanding UCLA did respond to the subpoenas relating to your lease with the VA so you were aware that there was some issue there and

[00:23:11] Speaker 04:
We know that they're criticizing the government's management of the property by the evidence involved in UCLA.

[00:23:21] Speaker 04:
There is no contention.

[00:23:22] Speaker 04:
This whole thing we briefed about the statutory provision where the lease is explicitly authorized, that claim was never made.

[00:23:30] Speaker 04:
And if you look at excerpts of record 1577 and 1593, which is the pages of the operative pleading,

[00:23:38] Speaker 04:
that plead the violation of the West Los Angeles Leasing Act, they explicitly reference only the provision that applies to the other leases, the primarily benefit veterans.

[00:23:51] Speaker 04:
They don't plead the UCLA lease, and most importantly, they don't plead the statutory provision I just talked about.

[00:23:58] Speaker 04:
So the statute that explicitly authorizes the lease is not pled the statutory provision.

[00:24:07] Speaker 04:
the contention that that lease is in violation of law and might be at risk isn't at issue in the case.

[00:24:15] Speaker 04:
So when UCLA subpoenaed to the trial, they think it's just to pile on more on the government on how it's managing.

[00:24:23] Speaker 04:
They don't, importantly, they don't know its lease is at risk.

[00:24:27] Speaker 04:
They learn about this.

[00:24:29] Speaker 04:
The oral amendment was never followed up even by a written pleading, which the Nelson v. Adams Supreme Court says

[00:24:36] Speaker 04:
You absolutely have to do or to violation of constitutional due process when you do something this oral amendment like this.

[00:24:44] Speaker 04:
You can't proceed against the new party until it's served the written pleading and give them a chance to respond.

[00:24:50] Speaker 04:
UCLA learns about the fact that its lease is being voided.

[00:24:55] Speaker 07:
What's the standard of review for us as we're considering whether or not the district court erred?

[00:25:02] Speaker 04:
The due process violation is de novo.

[00:25:04] Speaker 07:
No, the motion to intervene.

[00:25:06] Speaker 07:
The denial of the motion to intervene.

[00:25:07] Speaker 04:
It's abuse of discretion, but if wrong legal criteria apply, that's reviewed de novo.

[00:25:14] Speaker 07:
So I guess I'm not following how a wrong legal criteria was used.

[00:25:18] Speaker 07:
The district court considered the totality of circumstances that

[00:25:23] Speaker 07:
with respect to whether or not the intervention was timely.

[00:25:27] Speaker 07:
And it determined that it was not timely based on when UCLA was aware of its potential interest being compromised in this litigation.

[00:25:39] Speaker 07:
And it considered the prejudice to the other parties, the reason for the length of delay.

[00:25:45] Speaker 07:
And I'm just really struggling to figure out how we can get to find that this was an abusive discretion.

[00:25:52] Speaker 04:
While they did consider the most important thing, and the Supreme Court is directed as the most important thing, this oral amendment to conform to proof at 1191 is not mentioned in the order denying intervention.

[00:26:06] Speaker 04:
The fact that the claim was not pled, which is dispositive under Nelson v. Adams, is not mentioned in the motion to intervention.

[00:26:16] Speaker 04:
You cannot add a new claim that is not pled

[00:26:21] Speaker 04:
taking a statutory provision that isn't at issue in the case and using it to void a lease when the party's not present at the trial.

[00:26:31] Speaker 04:
You can't do that.

[00:26:32] Speaker 04:
And UCLA reads about this in the paper.

[00:26:35] Speaker 04:
And at the very next hearing, it is not even then ordered to appear.

[00:26:40] Speaker 04:
It's invited to appear.

[00:26:42] Speaker 04:
At the very next hearing, it, not the government, UCLA,

[00:26:47] Speaker 04:
non-party is directly enjoined and blocked off, cordoned off from a long-term lease that Congress has explicitly authorized.

[00:26:57] Speaker 04:
It's evicted summarily without any process at all.

[00:27:01] Speaker 04:
That's an abuse of discretion under any standard.

[00:27:06] Speaker 04:
When you factor in the requirements of controlling law and the statutes of the district court, rule 15, that's an application of Arrone's legal criteria and

[00:27:17] Speaker 04:
Because the lease was voided and an injunction was entered against UCLA, UCLA has standing to appeal independent of intervention.

[00:27:28] Speaker 04:
Because it didn't just enjoin the government, he voided UCLA's leases.

[00:27:32] Speaker 08:
No one's saying you can't be here on appeal.

[00:27:34] Speaker 08:
But if you had been granted intervention at that time, what would it have changed?

[00:27:40] Speaker 04:
Number one, you just heard the government didn't defend

[00:27:44] Speaker 04:
isn't defending this appeal.

[00:27:45] Speaker 04:
They did defend it at trial.

[00:27:47] Speaker 04:
It did not bring up the provisions of the statute and how this lease easily, fully satisfies all those provisions.

[00:27:55] Speaker 04:
The bargain, the compensated provision of medical service, that is what lets UCLA use the provision for baseball along with these pro bono services.

[00:28:07] Speaker 04:
That was not mentioned in the trial.

[00:28:10] Speaker 08:
Okay, I'm just trying to, we think very concretely.

[00:28:14] Speaker 08:
OK, let's just say that it was an abuse of discretion.

[00:28:18] Speaker 08:
I'm saying hypothetically.

[00:28:20] Speaker 08:
Then where does that put you at that point?

[00:28:24] Speaker 04:
Well, at that point, we've shown that the compensated medical services, which indisputably qualify and render this lease lawful, wasn't mentioned.

[00:28:34] Speaker 08:
Well, no.

[00:28:37] Speaker 08:
So if you should have been allowed to intervene, then

[00:28:41] Speaker 08:
That's an abuse of discretion.

[00:28:42] Speaker 08:
But then you're back in the district court, right?

[00:28:45] Speaker 04:
Yes and no.

[00:28:46] Speaker 04:
I mean, there's no there's no attempt in opposing this to show that if you applied the statute as it's written, you apply the actual statutory criteria on the statute that was never pled.

[00:28:59] Speaker 08:
OK, well, let's say you lose on the motion to intervene.

[00:29:01] Speaker 08:
But then the next thing is you were ruled against based on a charitable trust.

[00:29:07] Speaker 08:
So is my understanding that the other way you win is if we said there was no charitable trust and therefore your lease isn't voided.

[00:29:20] Speaker 08:
We don't uphold the voiding of your lease.

[00:29:22] Speaker 04:
The other way you win is the lease says there's an opportunity to cure.

[00:29:27] Speaker 04:
There's a lease with the government.

[00:29:29] Speaker 08:
Well, it was summary judgment, right?

[00:29:30] Speaker 04:
No, no, this was following the trial.

[00:29:32] Speaker 04:
And remember, in an ordinary, let's take a normal eviction.

[00:29:36] Speaker 04:
You can't evict someone without giving someone notice of the violation and an opportunity to cure.

[00:29:41] Speaker 04:
The lease says you have to do that.

[00:29:43] Speaker 04:
UCLA could easily cure because it could have just shown its lease was statutorily compliant, the thing that was skipped over at the trial in its absence.

[00:29:52] Speaker 04:
UCLA made that showing

[00:29:55] Speaker 04:
along with its motion intervene.

[00:29:57] Speaker 08:
If you look well, so I'm just trying to understand how you win and what winning.

[00:30:03] Speaker 08:
What is the effect of you winning?

[00:30:06] Speaker 08:
If we say there's no charitable trust, then and that was the basis for it, then we vacate that part of it.

[00:30:13] Speaker 08:
So that's that's how you win.

[00:30:15] Speaker 08:
It's over.

[00:30:15] Speaker 08:
That's one way you win and your lease is up in 2026.

[00:30:19] Speaker 08:
Correct.

[00:30:21] Speaker 08:
So we don't.

[00:30:22] Speaker 08:
Is that what you're just asking us to do?

[00:30:24] Speaker 08:
We don't do anything else?

[00:30:26] Speaker 04:
I'm asking you to give back this lease that was lawful and congressionally authorized, and there's several ways.

[00:30:32] Speaker 04:
One is the charitable trust way.

[00:30:34] Speaker 04:
The other is you have to have some process between violation and voiding of the lease.

[00:30:41] Speaker 04:
The tenant always gets an opportunity.

[00:30:43] Speaker 04:
That was never afforded.

[00:30:45] Speaker 04:
UCLA tried to avail itself of that opportunity, and it could have easily been better.

[00:30:49] Speaker 08:
I guess what I'm saying, though, is if we say there wasn't a basis to void the lease,

[00:30:54] Speaker 08:
then that part of the judgment is vacated.

[00:30:58] Speaker 08:
So then you have till 2026.

[00:31:00] Speaker 08:
Is that what?

[00:31:01] Speaker 04:
That's absolutely all we need.

[00:31:04] Speaker 04:
I'm just making sure that of that basis is not accepted.

[00:31:10] Speaker 04:
These other bases that we briefed are also accepted, because number one, Nelson v. Adams gave us an absolute right to appear once that oral claim was made.

[00:31:22] Speaker 08:
OK.

[00:31:24] Speaker 08:
We have no more questions.

[00:31:25] Speaker 08:
You're over.

[00:31:26] Speaker 08:
I'll give you 90 seconds for rebuttal Good morning.

[00:31:37] Speaker 03:
Good morning.

[00:31:37] Speaker 03:
Your honor may please the court Ernest Guadiana on behalf of Bridgeland resources and I'd like to try to reserve one minute for rebuttal

[00:31:47] Speaker 03:
So since I have very limited time this morning, I'd like to focus on three points.

[00:31:51] Speaker 03:
First, I'd like to note how Bridgeland differs from the other appellants for two specific reasons, and then I'd like to explain why the district court's injunction permanently prohibiting Bridgeland from slant drilling even outside of the revocable license is overbroad and improper.

[00:32:11] Speaker 03:
So you've just heard from UCLA.

[00:32:13] Speaker 03:
I'd like to note that Bridgeland's revocable license under the Leasing Act was issued under a separate section, one that does not have a predominant focus of veterans.

[00:32:24] Speaker 03:
Now more importantly, different than every other appellant in this case, Bridgeland does not have a single, like Bridgeland's revocable license does not grant it a single inch of surface space on the campus.

[00:32:36] Speaker 03:
Instead, all that it does is permit a subsurface pass-through right where Bridgeland can put a well bore hundreds of feet below the surface to produce private oil outside of the VA's grounds.

[00:32:49] Speaker 03:
Now for that right, Bridgeland gives a royalty, which an industry expert with over 40 years of experience said was the most generous he had ever seen in his career.

[00:32:58] Speaker 03:
And that royalty funds a transportation program to bring veterans to their medical appointments.

[00:33:04] Speaker 03:
Now, Bridgeland does occupy a drill site on the VA grounds, but that's not from the VA.

[00:33:10] Speaker 03:
That is granted to it through leases with the Bureau of Land Management, which are not in dispute in this case.

[00:33:16] Speaker 03:
But I do want to be clear.

[00:33:18] Speaker 03:
No matter what happens here today and in this case, whether the revocable license is upheld or not, Bridgeland's footprint on the VA campus will not change one inch.

[00:33:29] Speaker 03:
But what will happen is if the revocable license is terminated,

[00:33:33] Speaker 03:
then this generous revenue will go away.

[00:33:36] Speaker 03:
And we believe that is clearly not what the Leasing Act intended.

[00:33:41] Speaker 03:
In fact, plaintiffs even think that that is somewhat of an absurd result in the fact that they entered into a settlement agreement with Bridgeland, which the court did not approve.

[00:33:50] Speaker 08:
Now, I'd like to just take, I'd like to turn- That after Valentini?

[00:33:54] Speaker 03:
Yes, that is after Valentini.

[00:33:55] Speaker 03:
Bridgeland's revocable license was entered into after the 2016 Leasing Act in 2017.

[00:34:02] Speaker 03:
Now I'd like to turn to the injunction just very briefly.

[00:34:04] Speaker 03:
So even if this court agrees that the revocable license was void under the Leasing Act, which obviously we disagree with, then the correct result would have been to terminate the revocable license or even go further and say that the VA cannot enter into similar agreements on those exact same terms.

[00:34:25] Speaker 03:
But what the court did by prohibiting slant drilling in the future was go far beyond that.

[00:34:30] Speaker 03:
First off, slant drilling was never an issue.

[00:34:31] Speaker 03:
It was never a claim that the plaintiffs thought relief from or anything like that.

[00:34:36] Speaker 03:
They wanted the revocable license terminated.

[00:34:39] Speaker 03:
But I guess the difference with that

[00:34:44] Speaker 03:
is that the district court, Sue Esponte, entered this injunction that no party had requested, which took away Bridgeland's rights to contract with other agencies and private parties, such as the Bureau of Land Management, who the plaintiffs even contend could give Bridgeland the right to slant drill.

[00:35:00] Speaker 08:
So the injunction was you can't slant drill anywhere?

[00:35:03] Speaker 03:
Correct.

[00:35:04] Speaker 03:
And permanently into the future.

[00:35:07] Speaker 08:
So what was the court's rationale on that?

[00:35:15] Speaker 03:
The court believed that it read a predominant purpose requirement into the Leasing Act, which I think it might have confused that with UCLA's standard for entering into leases, and it

[00:35:31] Speaker 03:
saw that the royalty was only 2.5% and said it has to be at least 51% because that's how it predominantly benefits veterans.

[00:35:37] Speaker 03:
But you have to understand, too, the Leasing Act grants the secretary of the VA the discretion to decide whether to enter into these leases.

[00:35:46] Speaker 03:
And the court viewed it as, well, are the veterans getting more or is Bridglin getting more?

[00:35:50] Speaker 03:
And that's not the correct analysis.

[00:35:52] Speaker 03:
The correct analysis when the secretary is doing this is to see, what are the veterans gaining by entering into this lease and what are they losing?

[00:35:59] Speaker 03:
And here, they're gaining a substantial royalty for a transportation program, and they're giving up virtually nothing.

[00:36:05] Speaker 03:
They're giving up a subsurface pass-through right.

[00:36:07] Speaker 03:
For that reason, this injunction is overbroad, without jurisdiction, and should be set aside, and I'd like to reserve the rest of my time for rebuttal unless you have any other questions.

[00:36:17] Speaker 03:
Thank you.

[00:36:27] Speaker 01:
Good morning, Your Honors.

[00:36:28] Speaker 01:
Eric Walther and I'm joined with my colleague Skip Miller here on behalf of Brentwood School.

[00:36:34] Speaker 01:
I want to start, Your Honors, by confirming Brentwood School's unwavering desire to continue providing important services to veterans and their families.

[00:36:42] Speaker 01:
But for that to happen, Brentwood School needs a valid lease on the West LA campus.

[00:36:48] Speaker 01:
Given the voiding of Brentwood School's prior lease by the district court and the stay of the settlement approval process for the new lease that was negotiated with the plaintiffs, Brentwood School is now caught in the middle without a lease and with complete uncertainty on what is allowed under the West LA Leasing Act.

[00:37:05] Speaker 01:
And I do want to be clear that Brentwood School was fully committed to the settlement agreement it reached post-judgment with the plaintiffs

[00:37:11] Speaker 01:
And if the settlement approval process had not been stayed and was finalized, we probably wouldn't be here.

[00:37:17] Speaker 01:
But because the stay was issued and the settlement agreement did not receive.

[00:37:21] Speaker 08:
Settlement agreement, is that post-Valentini?

[00:37:24] Speaker 01:
It is.

[00:37:24] Speaker 01:
It's post-judgment in this case.

[00:37:26] Speaker 08:
Oh, post-judgment in this case.

[00:37:27] Speaker 01:
That's right, Your Honor.

[00:37:28] Speaker 01:
So given the fact that it has not received final approval and given the uncertainty with the appeal, Brentwood School really had no choice but to continue its appeal of the final judgment.

[00:37:38] Speaker 08:
What do you call that?

[00:37:39] Speaker 08:
It's prophylactic appeal?

[00:37:41] Speaker 01:
Bet and I do think we mean we had issues with the final judgment.

[00:37:45] Speaker 01:
I think there was a air on a narrow issue of Statutory construction in the final judgment it is our position that our prior lease complied with the plain language of the statute certainly based on So it did receive preliminary approval by the district court it was set Carter

[00:38:05] Speaker 01:
That's correct, yes.

[00:38:07] Speaker 01:
It was set for a fairness hearing, and then the administrative stay was imposed, and then the longer stay pending appeal was imposed.

[00:38:17] Speaker 01:
OK.

[00:38:17] Speaker 01:
So given the reality of the stay proceeding, we are now continuing with our argument that a narrow issue of contract interpretation results in Judge Carter's decision in voiding our lease was invalid.

[00:38:35] Speaker 01:
And I know I'm getting low on time here.

[00:38:38] Speaker 01:
I'd like to say just that we believe that our lease complied with the plain language of the Leasing Act.

[00:38:43] Speaker 01:
And to the extent the Leasing Act is ambiguous, I believe the legislative history confirms that Congress was enthusiastic about the lease with Brentwood School that was envisioned in the VA Secretary's master plan.

[00:38:55] Speaker 01:
Resolving this issue will give the parties clarity and certainty on what's allowed under the Leasing Act, both with

[00:39:03] Speaker 01:
Existing leases and with future leases and including the lease that was negotiated with the plaintiffs.

[00:39:09] Speaker 07:
That's Understanding your argument that the plain language is ambiguous I'm looking at it and it seems pretty unambiguous that a lease to a third party any lease of real property for a term not to exceed 50 years to a third party to provide services that principally benefit veterans and their families and that are limited to one or more of the following purposes and

[00:39:33] Speaker 07:
That seems pretty clear to me.

[00:39:34] Speaker 07:
What I'm not understanding is your argument with respect to the services that are provided that principally benefit veterans.

[00:39:43] Speaker 07:
Is it your argument that if one service out of all of the services provided benefit veterans, that's all that needs to be satisfied to comport with the statutory language?

[00:39:56] Speaker 01:
So, I mean, I think there may be a couple questions in there that I want to unpack.

[00:40:02] Speaker 01:
Principally benefit veterans and their families.

[00:40:04] Speaker 01:
It's our position.

[00:40:05] Speaker 01:
It modifies the word services.

[00:40:06] Speaker 01:
So the services need a principally benefit.

[00:40:08] Speaker 01:
Principally benefit is a defined term in the statute.

[00:40:11] Speaker 01:
It's services that are offered exclusively to veterans and their families or services that are designed to benefit veterans as opposed to the general public.

[00:40:18] Speaker 07:
Let's say I agree with you that principally benefits modifies services as opposed to the lease, although I think it's a distinction without a difference.

[00:40:29] Speaker 07:
How still are you able to satisfy?

[00:40:32] Speaker 01:
Yes Yeah, so and you you raised kind of the slippery slope argument if a lease only provided some minor benefit to veterans would it still comply I think the leasing act does have a built-in protection several built-in protections to avoid leases like that and

[00:40:48] Speaker 01:
Section G subsection G requires any leases that are entered into that they must comply with the master plan of the VA.

[00:40:59] Speaker 08:
I think that we must be offering more in the settlement than you were offering before or I don't think Judge Carter would have approved it.

[00:41:06] Speaker 08:
I'm just just hypothetically I

[00:41:09] Speaker 01:
That's right, your honor.

[00:41:10] Speaker 01:
And again, Brentwood School is fully committed.

[00:41:12] Speaker 01:
It does offer more services, I think more money.

[00:41:16] Speaker 01:
And it's an interesting point, right?

[00:41:17] Speaker 01:
Because Judge Carter found that the prior lease was invalid, and his interpretation of the statute was that it would be virtually impossible for Brentwood School to have a lease that could comply.

[00:41:29] Speaker 01:
Obviously, we negotiated basically structurally a similar lease, but with more services provided, and it received preliminary approval from Judge Carter.

[00:41:39] Speaker 08:
All right.

[00:41:39] Speaker 08:
Thank you.

[00:41:40] Speaker 01:
Yep.

[00:41:40] Speaker 01:
Thank you.

[00:41:46] Speaker 08:
Great.

[00:41:47] Speaker 08:
We're ready for the appellees.

[00:41:52] Speaker 08:
I think.

[00:41:56] Speaker 08:
I don't want to surprise you, but did I finish with the appellants?

[00:42:02] Speaker 08:
Okay.

[00:42:03] Speaker 08:
I don't want to cut anyone off at any time.

[00:42:05] Speaker 08:
Okay.

[00:42:07] Speaker 08:
Go ahead.

[00:42:08] Speaker 02:
Good morning, Your Honors.

[00:42:09] Speaker 02:
I'm Mark Rosenbaum.

[00:42:10] Speaker 02:
On behalf of Appellees, I'm sharing the argument with Mr. Preeb.

[00:42:13] Speaker 02:
Mr. Preeb is going to deal with the issues of the charitable trust and the scope of relief with respect to the land use agreements.

[00:42:24] Speaker 02:
How much time are you taking?

[00:42:24] Speaker 02:
I'm going to take 25 and leave Mr. Preeb 15.

[00:42:29] Speaker 02:
Okay.

[00:42:30] Speaker 02:
All right.

[00:42:30] Speaker 02:
May it please the Court.

[00:42:32] Speaker 02:
Let me start, Your Honor.

[00:42:34] Speaker 02:
Let me tell you the issues I plan to address, and obviously I'm pleased to address any issue you'd like.

[00:42:39] Speaker 02:
I want to address, Judge Callahan, your point regarding the scope of the reef.

[00:42:43] Speaker 02:
I want to start right there.

[00:42:45] Speaker 02:
I then want to talk about the Olmstead matter that Your Honor raised.

[00:42:50] Speaker 02:
I want to very briefly go to your point, Judge Alba, regarding jurisdiction.

[00:42:55] Speaker 02:
I get the point, but I just want to add something quickly with respect to that.

[00:43:00] Speaker 02:
And then I want to talk about the UCLA matter, and I have a sentence on the Bridgeland matter.

[00:43:07] Speaker 08:
Can I just ask one quick question because I don't know if this is on the plate or not Do you oppose dismissing HUD from this litigation?

[00:43:14] Speaker 02:
Yes not Dismiss HUD with respect to Certain issues, but not with respect to the HUD VASH system which they're in charge of Operating and that is part of this case.

[00:43:31] Speaker 02:
I do plan to talk about that Let me start

[00:43:35] Speaker 02:
your honor, with respect to the statement that the court made concerning the scope of what the judge actually did.

[00:43:42] Speaker 02:
And let's go to the order.

[00:43:44] Speaker 02:
And I want to specifically look at paragraph 251 and section C, E, and H. Here's what the judge actually ordered.

[00:43:52] Speaker 02:
It isn't as my friend, in fact, represented.

[00:43:55] Speaker 02:
At C, what the court said was federal defendants are enjoined from failing to provide plaintiffs in the class they represent

[00:44:04] Speaker 02:
Appropriate permanent supportive housing on or near the grounds so that they reasonably can access the health care benefits for which they are eligible in the most integrated setting appropriate to their needs.

[00:44:16] Speaker 02:
This includes providing access to transportation to the grounds.

[00:44:21] Speaker 02:
Nothing, and that's a negative injunction as Your Honor well knows, nothing in terms of operating the system itself.

[00:44:28] Speaker 02:
E and H are really the critical points.

[00:44:30] Speaker 02:
because E and H are consistent with the way the judge addressed this matter.

[00:44:34] Speaker 02:
And he addressed this matter with a set of orders that were flexible and that called for a collaborative process with the government and the other parties.

[00:44:43] Speaker 02:
So what E says is, within six months of the court's order, federal defendants in consultation with the plaintiff's counsel and the court appointed monitor shall develop a plan, a plan

[00:44:57] Speaker 02:
For the construction of an additional 1,800 units of permanent supportive housing to address veteran homelessness within the catchment area, this plan shall include a timeline such that those 1,800 units shall be built and operated within six years.

[00:45:14] Speaker 02:
Six-year plan.

[00:45:17] Speaker 02:
Then H says, as to both the temporary and permanent supportive housing, the court retains jurisdiction

[00:45:24] Speaker 02:
to adjust the number of units in each category in order to closely approximate the actual need for housing.

[00:45:31] Speaker 02:
What's that mean?

[00:45:32] Speaker 02:
It means that the judge has not ordered a single unit of construction of permanent supportive housing on those grounds until we have a plan and until we see whether or not it's actually needed itself.

[00:45:46] Speaker 02:
That is a far cry from saying that those units are to be built as part of this order.

[00:45:51] Speaker 02:
What he's saying is let's be sensitive, let's be collaborative, let's see what the actual operation is.

[00:45:57] Speaker 02:
How did the 1800 get pulled out of it?

[00:45:58] Speaker 02:
Oh, good question.

[00:45:59] Speaker 02:
It kind of came out of thin air.

[00:46:02] Speaker 02:
The numbers are in there, Your Honor, but I understand with respect to the record, it's a little bit complicated to determine.

[00:46:10] Speaker 02:
Here's the critical number, which is nowhere mentioned in any of their briefs.

[00:46:15] Speaker 02:
The critical number is 379.

[00:46:18] Speaker 02:
What the court found after a month-long trial is that there are only 379 available units on or near the grounds for purposes of permanent supportive housing, for what is in fact an urgent need for that housing itself.

[00:46:36] Speaker 02:
On the grounds itself, the court found that there were no available units with respect to that, and that came from the testimony of their own witnesses.

[00:46:44] Speaker 02:
Then the court looked at the overall population.

[00:46:47] Speaker 02:
It looked at the individuals, as Your Honor referenced earlier, who are in housing units.

[00:46:53] Speaker 02:
Your Honor said, I think, 20 miles or 60 miles.

[00:46:57] Speaker 02:
That's be generous.

[00:46:59] Speaker 02:
The Paso Robles, the Templeton, is over 200 miles from the tertiary center, which is necessary for these individuals who are suffering brain trauma,

[00:47:13] Speaker 02:
who are suffering severe mental illness, who are suffering from PTSD, 100% disabled.

[00:47:19] Speaker 02:
This is the only place where they can get what they need, and that is tertiary specialized.

[00:47:24] Speaker 02:
So what the judge did was he said, look, let's look at the overall population, which we talked about earlier, and then let's also look at the number of individuals who are far outside

[00:47:37] Speaker 02:
any reasonable radius, five mile radius to that medical unit.

[00:47:42] Speaker 02:
And then he said, I will use the government's estimate as the percent of individuals with TBI and SBI, which is 24%, which quite frankly is ridiculous.

[00:47:51] Speaker 02:
Their own testimony, as the judge recognized, was much closer to 70%.

[00:47:57] Speaker 02:
Indeed, Your Honor will recall that the Draft Master Plan specifically targeted TBI and SMI as prime individuals.

[00:48:07] Speaker 02:
And the government's own numbers was that those percentages were in the neighborhood of 60, 70, even above 70 percent.

[00:48:14] Speaker 02:
But he took the smallest number.

[00:48:16] Speaker 02:
And that's where that number came from.

[00:48:18] Speaker 02:
But again, I want to emphasize that that number is not locked in the stone.

[00:48:22] Speaker 02:
We're going to see what the actual need is.

[00:48:25] Speaker 02:
And over a six-year period of time, we'll see what the actual need itself is.

[00:48:31] Speaker 08:
One other matter with respect to... But what is, if we leave everything in place, hypothetically, that Judge Carter did, what's Judge Carter going to be doing for the next six years?

[00:48:43] Speaker 02:
Well, my guess is he'll be busy, but what he will be doing is to, superintending, so with respect to the construction, he'll say, let's see what that plan looks like.

[00:48:56] Speaker 02:
Let's see what the actual need is.

[00:48:57] Speaker 08:
That's what bothers me, that he's running the VA.

[00:49:01] Speaker 02:
He didn't say he would do it himself.

[00:49:03] Speaker 02:
He said he would do it in collaboration with the government, in collaboration with

[00:49:09] Speaker 02:
the plaintiffs, and with a monitor to look at it.

[00:49:12] Speaker 08:
Well, OK, but in collaboration.

[00:49:13] Speaker 08:
But is he the final say in that?

[00:49:16] Speaker 02:
He has the final say, because this jurisdiction does have the jurisdiction.

[00:49:21] Speaker 02:
But Your Honor really hit the principal point with respect to that.

[00:49:25] Speaker 02:
And that is there is a history here of the government not serving the veterans, either based on the deed, based on the commitment on that draft master plan,

[00:49:39] Speaker 02:
And quite frankly, based on the commitment that they made to veterans who served this country and who came back with the invisible wounds of war, or who were sexually assaulted by their commanding officers, or their drill sergeants, or they were booted out because they were gay.

[00:49:57] Speaker 02:
There is a record here.

[00:49:59] Speaker 02:
There is a record that goes back to 2011.

[00:50:02] Speaker 02:
in terms of the government not doing close.

[00:50:05] Speaker 02:
If you take a look at the number of units, it's like 26 units a year.

[00:50:09] Speaker 02:
The testimony would you, they put up more units in a week in Iraq than they did here.

[00:50:16] Speaker 02:
And these are individuals who suffered, who were at Fallujah and who were... Council, I have a question for you.

[00:50:22] Speaker 06:
I want you to narrow down why we're not stripped of jurisdiction under the VJRA.

[00:50:27] Speaker 02:
Great question.

[00:50:30] Speaker 02:
The first point is the point that Your Honor made, and that is you look at cases like Axon from the Supreme Court, Arce from this court, and it says when we look at jurisdictions, we read them very narrowly.

[00:50:43] Speaker 02:
But I'm so pleased that Your Honor raised it, because this court's decision in VCS, the Browdy decision, the Camacho decision, tells us the test to apply.

[00:50:52] Speaker 02:
In VCS, which everybody agrees is a seminal case in this situation, the court looked at three sets of claims, two with respect to delays,

[00:51:00] Speaker 02:
One, a Matthew V. Eldridge claim as to the way that the benefits were being dealt with.

[00:51:05] Speaker 02:
Should there be discovery?

[00:51:07] Speaker 02:
Should there be subpoenas?

[00:51:08] Speaker 02:
Should there be a pre-decision hearing?

[00:51:11] Speaker 02:
And the court said, this court said at page 1034, two things.

[00:51:16] Speaker 02:
One, with respect to that Matthew V. Eldridge claim, we don't have to revisit any sorts of determinations.

[00:51:23] Speaker 02:
That's exactly the situation here.

[00:51:25] Speaker 02:
No one questioned, no one cross-examined these veterans as to the determinations, because those determinations were made.

[00:51:33] Speaker 02:
Secondly, with respect to the test, the test that was laid out at 1034 was specifically, was this sufficiently independent?

[00:51:46] Speaker 02:
Were those claims sufficiently independent of the benefit claims?

[00:51:50] Speaker 02:
The Browdy case said at page 176, do the claims somehow

[00:51:56] Speaker 02:
It can't be that they just somehow touch upon the benefits.

[00:51:59] Speaker 02:
It's gotta be narrower than that.

[00:52:02] Speaker 02:
And the Camacho case at page 633 specifically said that we're not going to address, we cannot take cases that are brought under the Rehabilitation Act.

[00:52:12] Speaker 02:
What is the Rehabilitation Act?

[00:52:14] Speaker 02:
It's a non-discrimination claim.

[00:52:16] Speaker 02:
It doesn't deal with benefits.

[00:52:18] Speaker 02:
That's 38 USC.

[00:52:20] Speaker 02:
If you go through 38 USC or 38 CFR 20.3,

[00:52:24] Speaker 02:
You're not going to find anything about permanent supportive housing.

[00:52:27] Speaker 02:
You're going to find death benefits, loans, disability compensation, education, pensions, but nothing to deal with this.

[00:52:37] Speaker 02:
This notion, Your Honor, that somehow this swept out everything, not only violates Axon,

[00:52:44] Speaker 02:
and are safe, but it's common sense.

[00:52:47] Speaker 02:
They're saying if an individual wanted a wheelchair ramp, they couldn't bring a lawsuit to do it even after they've been fully determined.

[00:52:54] Speaker 02:
That's exactly what the situation is.

[00:52:57] Speaker 02:
And the trainer case actually supports us with respect to that.

[00:53:01] Speaker 02:
Trainer was a case involving using your GI benefits for education within 10 years.

[00:53:08] Speaker 02:
And individuals came in trainer and said,

[00:53:10] Speaker 02:
we're alcoholics, we weren't able to do it.

[00:53:13] Speaker 02:
And the court adjudicated that issue.

[00:53:15] Speaker 02:
That's what led to 511A.

[00:53:19] Speaker 02:
What happened in 511A was that the language changed from 211.

[00:53:24] Speaker 02:
Look at the exact differences in the language.

[00:53:27] Speaker 02:
511 adds to the process itself the questions of law or fact necessary to determination.

[00:53:38] Speaker 02:
That's what triggered it in Traynor that you had to determine whether or not that alcoholism

[00:53:44] Speaker 02:
Justified in fact granting benefits.

[00:53:47] Speaker 02:
That's not what's involved here This is an entirely separate claim with respect to the benefits themselves.

[00:53:53] Speaker 06:
Let me ask you now counsel to pivot to the class certification question Was there an issue there with the commonality no?

[00:54:01] Speaker 02:
and again the case that they cite the the Walmart case at page 350 is

[00:54:11] Speaker 02:
sets out what the test is.

[00:54:13] Speaker 02:
The test is can you with a single stroke address what the overall issues are that are big race.

[00:54:21] Speaker 02:
Walmart, remember Justice Scalia said in the opening sentence of that decision, this is one of the most expansive class actions ever.

[00:54:29] Speaker 02:
One and a half million females brought that lawsuit, 3,400 stores

[00:54:36] Speaker 02:
a kaleidoscope of superintendents.

[00:54:39] Speaker 02:
No just notes, overall policy that was dealt with.

[00:54:44] Speaker 02:
This court in the Parsons case and the Armstrong case, which is cited twice in the Parsons case said, no, if you can get a single stroke, then you can qualify for it.

[00:54:55] Speaker 02:
Parsons was the case involving healthcare benefits.

[00:54:58] Speaker 02:
Whole variety of healthcare problems.

[00:55:00] Speaker 08:
So what is your common question that we can answer and not have all individuals

[00:55:05] Speaker 02:
The single question here is whether or not this class of disabled veterans can get reasonable accommodations on or near the grounds so that they can access medical care which is only operated on that tertiary and specialized campus and otherwise not be put in a situation that creates an Olmstead problem.

[00:55:34] Speaker 02:
And that the judge dealt with with a single stroke saying get the system of reasonable accommodation, get the system of permanent supportive housing in order.

[00:55:46] Speaker 02:
I don't care if you do that through building housing on the grounds, I don't care if you do it within a five mile radius, they've now got

[00:55:53] Speaker 02:
a compensation process, a possibility to get loans.

[00:55:57] Speaker 02:
I don't care if you do that by improving the HUD VAT system, which is a tragedy.

[00:56:02] Speaker 02:
It's a complete mess in terms of what it is.

[00:56:05] Speaker 02:
But that's a single question with a single stroke to answer those particular questions.

[00:56:13] Speaker 02:
Can I take 30 seconds on UCLA?

[00:56:18] Speaker 02:
UCLA misrepresents what they were told.

[00:56:20] Speaker 02:
They were told on January 31st

[00:56:22] Speaker 02:
2024 seven months before the trial more than seven months over the trial Your land use agreement may be impacted By this by this litigation boy.

[00:56:34] Speaker 02:
How can you spell it out more clearly?

[00:56:37] Speaker 06:
I'm just asking how were they told that?

[00:56:43] Speaker 02:
They were told that the government sent them a formal notice of that.

[00:56:51] Speaker 02:
Bridgeland obviously responded by intervening in this particular case.

[00:56:56] Speaker 02:
And attached to that was an order.

[00:56:59] Speaker 02:
On April 1st, they were served with multiple discovery, all of which dealt with compliance.

[00:57:05] Speaker 02:
On April 24th, they were subpoenaed.

[00:57:08] Speaker 02:
On May 13th, I met with them with the number two person in the general counsel's office at a meet and confer.

[00:57:15] Speaker 02:
That's where it was discussed.

[00:57:18] Speaker 02:
In June, they were deposed, and I questioned Mr. DeFrancisco.

[00:57:23] Speaker 02:
This is what's so remarkable about this argument.

[00:57:26] Speaker 02:
They are attacking their own 30b6 witness who testified that the predominant focus not, as he says, I'm sorry.

[00:57:35] Speaker 08:
I'm sorry.

[00:57:38] Speaker 02:
I'm sorry.

[00:57:38] Speaker 02:
I just had two more sentences.

[00:57:40] Speaker 02:
Testified that the predominant focus on those grounds

[00:57:45] Speaker 02:
was baseball, baseball.

[00:57:48] Speaker 02:
And in fact, as your honor will recall from this record, during the height of the pandemic, when veterans pleaded to set up housing on a parking lot, UCLA and the VA said, no, we've got a baseball schedule to fulfill.

[00:58:06] Speaker 02:
Well, maybe I should get a malpractice action against me.

[00:58:15] Speaker 02:
But the reason was because we wanted to do the discovery first.

[00:58:20] Speaker 02:
We did the discovery.

[00:58:22] Speaker 02:
We wanted to bring the action logistically.

[00:58:24] Speaker 02:
What the court told us was that that may mean the case will get delayed, the trial will get delayed, and we just didn't feel like we could do that with the veterans.

[00:58:33] Speaker 02:
I will say that, you know, Mike.

[00:58:35] Speaker 08:
Was there, is there some, okay, I think you're,

[00:58:39] Speaker 08:
You're taking exception from what the representation that your friend on the other side is saying, but he also said that his lease was under a different section and a different category.

[00:58:50] Speaker 08:
But the language... Well, no, but just let's break it down.

[00:58:53] Speaker 08:
Was that correct?

[00:58:55] Speaker 02:
No, because the language of the order that came, the notice was it may be impacted.

[00:59:02] Speaker 02:
It didn't say how it would be impacted.

[00:59:03] Speaker 08:
Well, I know, but the other two, were they under a different statute than

[00:59:09] Speaker 07:
You sell ice Yeah, and I think specifically I'm interested in hearing your your Remarks with respect to Bridgeland's it it was not brought under the APA the UCLA claim I might say that you know if we have to I think it's going to survive under I think the question is now pivoting to the Bridgeland yeah I have the same question so the lawyer

[00:59:39] Speaker 07:
for Bridgeland stood up here and argued that essentially their lease comes under a different section of the Leasing Act.

[00:59:46] Speaker 07:
It's not subject to the same analysis that essentially there's agreement with the plaintiffs that they ought not be in this litigation and I'm interested in your... That's completely wrong for two reasons.

[00:59:59] Speaker 02:
First of all, the OIG, twice as was required by Congress, looked at the Bridgeland

[01:00:05] Speaker 08:
Revocable license and found it to be illegal under the west la leasing act of 2016 Judge say they can never do slant drilling anywhere Wasn't that the joke didn't the judge say that no what the judge said like saying well and furthermore I'm going to tell you can't do what you're doing this lawsuit, but then you can't do anything wrong for the rest of your life and I'm going to

[01:00:32] Speaker 02:
No, the judge modified the order to say with respect to the sawtail to Well, which is on that land which is the subject of that revocable license that that in fact could not go forward at this time and the reason he did that was just because the oil is being taken out and those benefits ought to go to the veterans under what is at least that is compliant at 247 be all the court said was that

[01:00:59] Speaker 02:
federal defendant's agreement with Bridgeland Resources does not principally benefit benefits in their families and thus constitutes a breach of their fiduciary.

[01:01:07] Speaker 02:
That's all the judge said.

[01:01:09] Speaker 02:
They're concerned about matters that in fact the judge did not rule on, but that's the only time Bridgeland is mentioned in the order.

[01:01:17] Speaker 02:
That said that lease was illegal.

[01:01:18] Speaker 02:
It was illegal.

[01:01:19] Speaker 02:
My God, 2.5% go to the vets and 98.5%

[01:01:24] Speaker 02:
97.5 97.5 goes No, but they're using that land.

[01:01:33] Speaker 08:
It's still Can you build housing on top of the land?

[01:01:39] Speaker 02:
No because of what they did to that land but what you can do with that land is move other properties to that that area and build housing somewhere else that is the

[01:01:50] Speaker 02:
The VA's position is we don't have space, or specifically found after tons of testimony that that wasn't true.

[01:01:58] Speaker 02:
Because of the contamination there, there are issues with respect to that, but that doesn't preclude using that land.

[01:02:04] Speaker 02:
That land isn't for oil and oil only.

[01:02:08] Speaker 02:
I mean, my God, that would be an absolute acclamation of what Your Honor said several minutes ago with respect to how the VA dealt with the situation.

[01:02:19] Speaker 02:
No, tragically, housing can't be built there.

[01:02:22] Speaker 02:
It's about two plus acres with respect to that land.

[01:02:25] Speaker 02:
But you could take other uses that happen elsewhere on the 380 acres, move that there, and that would free up space.

[01:02:33] Speaker 02:
But the basic point is that the Leasing Act is really clear.

[01:02:37] Speaker 02:
And with respect to Bridgeland and Brentwood,

[01:02:41] Speaker 02:
That land use agreement must principally benefit veterans and their families, and it doesn't do that.

[01:02:49] Speaker 07:
It principally benefits veterans and their families based on the royalties that are paid, which I think is the argument that your friend on the other side is making, that when weighing the benefit of the royalties that are paid versus the loss of the land in which this land drilling is occurring, one clearly is greater than the other.

[01:03:07] Speaker 02:
There's two problems with that, Your Honor.

[01:03:10] Speaker 02:
With respect to that, the breakdown is 2.5% go to veterans.

[01:03:17] Speaker 02:
Everything else goes to either Bridgeland or the people who are getting benefits, the gross revenues of the land.

[01:03:25] Speaker 02:
That's the breakdown, 97.5 versus 2.5.

[01:03:31] Speaker 02:
That clearly doesn't principally benefit them.

[01:03:33] Speaker 02:
Secondly, the OIG found, and the court agreed with that, that you can't use money as your source for principle.

[01:03:44] Speaker 02:
And that's really what they're doing.

[01:03:46] Speaker 02:
They're taking the money, and then they're using it as a pass-through for that transportation.

[01:03:51] Speaker 02:
They're making it like it's a generous gift.

[01:03:53] Speaker 02:
My god, that land belongs to the veterans.

[01:03:55] Speaker 02:
It's to be principally used by the veterans.

[01:03:57] Speaker 02:
And on both those counts, that violates the statute.

[01:04:01] Speaker 02:
That's what OIG found.

[01:04:02] Speaker 02:
And that's precisely what the court found.

[01:04:05] Speaker 06:
Council, give me examples.

[01:04:06] Speaker 06:
You mentioned that unfortunately housing can't be placed on that land.

[01:04:09] Speaker 06:
What are you thinking could be placed on that land?

[01:04:11] Speaker 02:
Oh, there's all sorts of things, Sharon.

[01:04:13] Speaker 02:
There's storage areas.

[01:04:14] Speaker 02:
I mean, it's a huge set of grounds, and there are storage areas that could be moved.

[01:04:18] Speaker 02:
There's already been discussions about the sort of things that could be moved there.

[01:04:22] Speaker 06:
And they're mutually exclusive?

[01:04:24] Speaker 06:
If you put the storage areas there, you couldn't also still allow slant drilling?

[01:04:29] Speaker 06:
Does one impact the other as in the floor is going to fall out from underneath it if you allow?

[01:04:35] Speaker 02:
Bridgeland to continue slant drilling and I don't know the answer to that question your honor, but I do know that the deal that Presently exists doesn't principally benefit and you don't have to be a math major to figure that out two point five percent by definition they say well

[01:04:52] Speaker 02:
It affects our profits.

[01:04:53] Speaker 02:
Well, that's not what this is about.

[01:04:54] Speaker 07:
But your argument actually is a step before that, which is even if it was 97%, your view is that a monetary payment can't displace the requirement in the statute.

[01:05:02] Speaker 02:
It's a double-barreled argument, and you're right on both of those points, Your Honor.

[01:05:06] Speaker 02:
And that's what the OIG found as well.

[01:05:09] Speaker 02:
And assuming my co-counsel doesn't murder me, I'd like him to take the rest of my time, the time that's available.

[01:05:16] Speaker 08:
You're yielding?

[01:05:18] Speaker 02:
No, I just want my co-counsel on the issue of shareable trust.

[01:05:21] Speaker 08:
Okay, so are we does he still have to the separate clock?

[01:05:26] Speaker 08:
What is his is he an overtime or not?

[01:05:30] Speaker 08:
Okay, so you still have two minutes?

[01:05:33] Speaker 08:
What are you asking to do?

[01:05:35] Speaker 02:
I'm asking to give the random manager of my time to my co-council.

[01:05:38] Speaker 08:
Okay, so you want to give two minutes to Mr. Preet yes, they are I'm sorry, okay Thank you

[01:05:55] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[01:05:57] Speaker 00:
My name is Mark Preeb, also on behalf of the plaintiffs or appellees.

[01:06:00] Speaker 00:
As Mr. Rosenbaum explained, I'm here to talk specifically about the charitable trust issues and happy to also touch on the remedies with land use injunctions as well on the leases.

[01:06:09] Speaker 00:
So I'll start with the charitable trust and specifically want to address two main issues there with that.

[01:06:16] Speaker 00:
The first is the existence of the trust, and the second is the enforceability of the trust, which my friend on the other side addressed briefly here.

[01:06:24] Speaker 00:
this morning as well.

[01:06:26] Speaker 00:
So on the existence of the trust, that issue turns entirely on the 1888 deed, which as we know gifted the land to the VA.

[01:06:35] Speaker 00:
And the issue there is very straightforward.

[01:06:37] Speaker 00:
It is whether, based on the language of the 1888 deed, the donors, quote, manifested an intention to create a charitable trust.

[01:06:45] Speaker 00:
And what California courts mean by that is whether the donors, in giving the land to the government, impose some sort of obligation on the government in what to do with that land, whether they remove the exercise of discretion on what to do with the land when it was given.

[01:06:59] Speaker 00:
And that is exactly what the 1888 deed does here.

[01:07:03] Speaker 00:
It says that in consideration of the premises, the donors are giving the land to the government expressly for the purpose of establishing, maintaining, and permanently establishing a home for disabled volunteer soldiers.

[01:07:14] Speaker 00:
That is an imperative obligation on the government, and therefore there is a charitable trust.

[01:07:18] Speaker 00:
The second issue I'd like to address here is the enforceability.

[01:07:21] Speaker 00:
So we agreed, as the government mentioned this morning, that it's true that for the government to assume an enforceable fiduciary duty under a trust, it needs to do so by a statute, by a congressional statute.

[01:07:33] Speaker 00:
But as Your Honor mentioned this morning, while all it does, just that.

[01:07:36] Speaker 00:
And the Supreme Court is clear on this issue.

[01:07:38] Speaker 00:
There are two requirements that need to be met in a statute for that statute, for the government to assume enforceable fiduciary duties under it.

[01:07:47] Speaker 00:
The first is that the statute imposes some sort

[01:07:50] Speaker 00:
Obligation or prescriptions on the government of how to manage a trust and that's exactly what will all it does The leasing act is is filled with those types of prescriptions It requires when the VA enters into leases those leases to principally benefit veterans and their families.

[01:08:04] Speaker 00:
That's section 2b When the VA collects revenue from those leases that that revenues needs to go directly to the campus or the grounds that section 2d and

[01:08:14] Speaker 00:
contemplates that the VA is going to implement the Draft Master Plan.

[01:08:17] Speaker 00:
That's contemplated in Section 2 I. So these are statutory prescriptions on the VA's responsibility with the land.

[01:08:23] Speaker 07:
Can you take a step back and talk about the standing the plaintiffs have with respect to the charitable trust claim?

[01:08:30] Speaker 07:
Sure.

[01:08:30] Speaker 07:
Do you agree that California law applies to this claim?

[01:08:35] Speaker 00:
Yes, we agree with that.

[01:08:36] Speaker 00:
California law applies.

[01:08:37] Speaker 07:
So why doesn't the attorney general have exclusive standing to enforce this claim?

[01:08:43] Speaker 00:
So typically the state attorney general does, is the party responsible for enforcing the claim.

[01:08:49] Speaker 00:
But California courts and in the cases that we flagged in our brief, basically every jurisdiction that has addressed this follows the restatement on this issue which recognizes the special interest exception.

[01:08:59] Speaker 00:
So what that means in so many words is that the beneficiaries that are contemplated under a trust have a clear interest in the enforcement of that trust.

[01:09:08] Speaker 00:
And there are circumstances where those beneficiaries may sue to enforce the trust.

[01:09:12] Speaker 00:
separate from the attorney general, which is what we have here with the beneficiaries, the plaintiffs at issue.

[01:09:17] Speaker 08:
So if we were to determine that the plaintiff's charitable trust claim fails either because it's not a charitable trust or they don't have standing and accordingly vacate the injunction against the UCLA lease, should we nonetheless consider whether UCLA lease complies with the 2016 Leasing Act?

[01:09:38] Speaker 08:
Does compliance raise tribal issues a fact that would be necessary on remand?

[01:09:44] Speaker 08:
I'm just, if the question of UCLA's lease complying with the 2016 Leasing Act is remanded, do you agree that UCLA would be a party to the remand?

[01:09:55] Speaker 08:
I know that's a lot of questions, but they're all UCLA questions.

[01:09:59] Speaker 00:
Sure.

[01:09:59] Speaker 00:
So as has been discussed, under an unfortunate situation, UCLA is not part of the APA.

[01:10:07] Speaker 00:
Were you to disagree with us on the charitable trust claim, UCLA would not be part of the APA claim, but we still think that they would be in clear violation of the Leasing Act.

[01:10:16] Speaker 08:
But do we have to address that, or are we just done at that point?

[01:10:22] Speaker 00:
On the posture that's before this Court, you would not have to address that, Your Honor.

[01:10:25] Speaker 00:
Okay.

[01:10:26] Speaker 00:
So in addition, I want to get back to one of the government's points.

[01:10:32] Speaker 08:
Okay, but if we say we agree with you, then we do have to address it.

[01:10:37] Speaker 00:
On the charitable trust claim, correct?

[01:10:38] Speaker 00:
Yes.

[01:10:39] Speaker 00:
If under the charitable trust claim.

[01:10:41] Speaker 08:
Okay, if we do have to address it, it seems like there's tribal issues there.

[01:10:46] Speaker 08:
But so would they then it would go back and then they would be a party to the lawsuit then, right?

[01:10:54] Speaker 00:
If I'm understanding your question, Your Honor, is this assuming that we would lose on the charitable trust claim?

[01:11:01] Speaker 00:
Under the charitable trust claim, whether UCLA's lease is in violation of the Leasing Act is squarely at issue in the charitable trust claim.

[01:11:09] Speaker 08:
Right.

[01:11:10] Speaker 08:
So, but if you went on the charitable trust claim and you have standing on that, then we have to address it, correct?

[01:11:16] Speaker 08:
The 2016 lease with UCLA.

[01:11:18] Speaker 00:
Yes, correct.

[01:11:19] Speaker 08:
That's correct, Your Honor.

[01:11:21] Speaker 08:
Okay.

[01:11:22] Speaker 08:
if we don't feel that we can on this record.

[01:11:26] Speaker 00:
The record is full with, I mean, as Mr. Rosenbaum explained, they produced a 30B6 deposition.

[01:11:32] Speaker 00:
They produced discovery in this matter as well.

[01:11:35] Speaker 00:
So all that is in the record and has been discussed in the briefs as well.

[01:11:38] Speaker 00:
So, and again, before this court, that issue is squarely at play under the Charitable Trust Claim.

[01:11:45] Speaker 00:
Okay.

[01:11:46] Speaker 00:
I'd like to get back, as I was mentioning, on the government's point of the enforceability of the trust.

[01:11:56] Speaker 00:
The government's main thesis here, as was described this morning, is that the leasing act needs to literally say that the government assumes enforceable fiduciary duties or that it may be sued.

[01:12:06] Speaker 00:
I believe the government gave an example from another statute.

[01:12:11] Speaker 00:
That's just not true under Supreme Court precedent.

[01:12:13] Speaker 00:
The Supreme Court has addressed this multiple times, most notably in the case of United States v. Mitchell, which involves a very similar issue as what we're having here.

[01:12:22] Speaker 08:
Congress... I'm just thinking of this, and I'm sorry to interrupt your train here, but Judge Carter said that the VA can't even engage in leasing agreements.

[01:12:36] Speaker 00:
I believe Judge Carter said that the leases that the VA has been entering into, based on what the parties have been doing, it's not possible for those leases to principally benefit veterans and their families.

[01:12:46] Speaker 08:
Well, but I think, didn't Judge Carter go further and say they can't negotiate any new leases?

[01:12:51] Speaker 08:
Isn't he bringing that under his superintendency of the VA?

[01:12:59] Speaker 00:
That's correct.

[01:13:00] Speaker 08:
Under... So he would be reviewing those leases or what, how would that, that seems broad to me.

[01:13:07] Speaker 00:
What Judge Carter stated was that he did issue forward-looking relief under his equitable power, preventing the VA from entering the future land use agreements with the four third parties here.

[01:13:18] Speaker 00:
And there's plenty of record sites supporting the district court's claim there.

[01:13:22] Speaker 00:
What the district court was doing was... But then how?

[01:13:25] Speaker 08:
But how can they do business if they can't even leak?

[01:13:28] Speaker 08:
So they just have to come to the court and get the permission of Judge Carter?

[01:13:31] Speaker 08:
Is that what the injunction is requiring?

[01:13:35] Speaker 00:
I think what the injunction is requiring is, I mean, we have to keep in mind exactly why the district court issued that equitable relief.

[01:13:43] Speaker 00:
This is decades of mismanagement and leases.

[01:13:46] Speaker 08:
I understand why.

[01:13:48] Speaker 08:
I mean, and I said that right out the gate.

[01:13:49] Speaker 08:
They haven't done a good job.

[01:13:51] Speaker 08:
They failed on many counts.

[01:13:57] Speaker 08:
But then the other thing is we can only give the power that someone, that Article III would entitle them to,

[01:14:05] Speaker 08:
We can't say well.

[01:14:07] Speaker 00:
You know what if he said I want to be God now, and I'm going to make all that you know we could we couldn't You know we have to look at the breath of the injunction So judge Carter's authority under its equitable relief is whether taking into account those past wrongs whether there would be a real and immediate threat of future harm to the plaintiffs and what he did in looking at the record was When he let the VA free to renegotiate these leases the VA continues

[01:14:34] Speaker 00:
Even despite its own secretary, its own OIG's findings that their leases were non-compliant with Wallala, continued to extend these leases.

[01:14:42] Speaker 00:
This happened specifically with Bridgeland and Safety Park.

[01:14:44] Speaker 00:
This is paragraph 110 of the district court's findings of fact.

[01:14:48] Speaker 00:
It did so also with Brentwood and UCLA.

[01:14:50] Speaker 00:
This is after the district court in Valentini voided the leases.

[01:14:54] Speaker 00:
The VA subsequently re-entered into what the district court here found were nearly identical leases.

[01:14:59] Speaker 08:
I don't really disagree with you on any of the reasons that just because they say they're going to do a better job that that makes everyone comfortable.

[01:15:06] Speaker 08:
But I like to think about what the Supreme Court would do when they look at things and you probably, you know, you're an intelligent man and you know that in the courts the breadth of injunctions is something that's being litigated

[01:15:20] Speaker 08:
and is going to end up at the Supreme Court.

[01:15:23] Speaker 08:
So, if hypothetically we were to uphold this injunction, what would the Supreme Court say?

[01:15:29] Speaker 08:
I always think that too.

[01:15:31] Speaker 08:
I mean, I don't get up every day and say I want to be reversed by the Supreme Court.

[01:15:37] Speaker 08:
But on the other hand, you know, I mean and I want to state Article 3, I like to color within the lines and my concern is

[01:15:47] Speaker 08:
that this is possibly coloring outside the lines and it's too broad.

[01:15:51] Speaker 08:
So that's what I'm trying to get my arms around.

[01:15:55] Speaker 00:
I think what the district court is working with here is a series of facts that support its main finding at the end of its opinion that due to the VA's persistent mismanagement of it, it's not possible for the VA to enter into lawful agreements with these parties that would principally benefit veterans and their families.

[01:16:15] Speaker 07:
sort of a variation of the question that Judge Callahan just asked, which is, is there a different way to achieve, I think, what you are indicating is the stated purpose or goal, the justifications behind Judge Carter's injunction, without having this black and white, you know, prohibition against Bridgeland slant drilling ever, never having or, you know, vacating the lease with

[01:16:45] Speaker 07:
Brentwood, is there a way to achieve those goals assuming we agree that judgment is appropriate in favor of plaintiffs on the APA claims that doesn't create some of these concerns with respect to the injunction?

[01:17:02] Speaker 07:
And if there is, then what do we need to do in our disposition to indicate that the purpose might be okay, but the sort of specific micromanagement or

[01:17:15] Speaker 07:
you know, complete prohibition to some of this activity shouldn't be dictated by the district court.

[01:17:21] Speaker 00:
I think the answer to that question, Your Honor, kind of goes back to one of your earlier questions, which is what is compliant of the leasing act?

[01:17:28] Speaker 00:
You teased out a bit whether a lease, the underlying lease, needs to principally benefit veterans and their family, right?

[01:17:35] Speaker 00:
And so I think that the scope of Judge Carter's relief here is taking into account just how far the current leases are.

[01:17:42] Speaker 00:
I mean, we're debating whether

[01:17:43] Speaker 00:
97.5% of royalties under the Bridgeland one could be, you know, principally benefiting veterans and their families as a whole.

[01:17:50] Speaker 07:
That's so far removed from... So you would be fine with language in an injunction that said just that without having to have these specific provisions ordering Bridgeland to stop slant drilling in perpetuity?

[01:18:03] Speaker 00:
I don't think there is a scenario where Bridgeland's slandering on VA campus could ever principally benefit veterans and their families.

[01:18:10] Speaker 07:
But then why does it matter whether that specific language is included or not?

[01:18:14] Speaker 07:
If there's some broader language that says, I think, what you've just articulated before, which is that it needs to comply with the statutory language that principally benefits veterans and their families, isn't that enough?

[01:18:26] Speaker 00:
Sorry, maybe misunderstanding the question, Your Honor.

[01:18:30] Speaker 07:
My question is, why?

[01:18:33] Speaker 07:
I think the tension here is that the specific scope and language of the injunction is incredibly far-reaching by stating something, for example, that Bridgeland cannot slant drill on the property ever.

[01:18:49] Speaker 07:
And your view is that's true because it doesn't provide a benefit to veterans and their families.

[01:18:56] Speaker 07:
So couldn't the injunction simply

[01:18:58] Speaker 07:
State that the leases must comply with the statutory requirement that the service is provided principally benefit veterans and their families without having to State expressly that they can never drill on the land would that be enough?

[01:19:13] Speaker 00:
Yes, I agree with that your honor.

[01:19:15] Speaker 00:
I understand that question Yes, and I agree that if the VA's leases with third parties would be in compliance with Walla then that would be sufficient so

[01:19:24] Speaker 00:
Yes, that's correct.

[01:19:25] Speaker 00:
I think what I was trying to tease out is the thrust of the district court skepticism that that's possible with these lessees.

[01:19:31] Speaker 00:
But to the extent that is possible, yes, if those leases are in compliance with Wallala, then that would be a permissible part of its injunctivity.

[01:19:38] Speaker 08:
But so if he's running the VA, then he can decide what the royalties are too?

[01:19:43] Speaker 08:
Is that, I mean, because that's, that all of these parties are in a completely different situation about what they're doing and the facts of their individual cases.

[01:19:53] Speaker 08:
And that, I mean has, let's say since the, you know, drilling or whatever, getting the, you know, doing the oil situation isn't, it's not affecting what they can do on top of the land.

[01:20:15] Speaker 08:
So why does it have to be that they can't slant drill and that they have to pay 97%, why?

[01:20:23] Speaker 08:
They are getting, the veterans are getting some free money here for that and they can still use the land on the top, right?

[01:20:31] Speaker 00:
Well, there's a few questions there I'd like to unpack.

[01:20:33] Speaker 00:
I mean, the first part is we disagree respectfully that the district court is attempting to run the VA.

[01:20:39] Speaker 00:
As my co-counsel explained, these injunctions and the remedies it's issuing are in collaboration with the parties.

[01:20:45] Speaker 00:
and a meeting with both plaintiff's council, the VA of how best to get these leases to comply with law to the extent possible.

[01:20:53] Speaker 00:
And on the second.

[01:20:54] Speaker 08:
So you collaborate but if you get to be the ultimate decision maker, you're running it.

[01:20:59] Speaker 08:
It's just, it's a little bit like in universities, they have duty to have shared governance but the president makes the decision or the board of trustees makes the decision.

[01:21:09] Speaker 08:
You know, I understand you get to make your arguments to us but I get to decide along with these two.

[01:21:15] Speaker 00:
Judges so he still is he's still the king there or the superintendent He does get to make the final decision your honor But I think that's because the VA has been incapable of making the decisions on its own for the last 50 years with this And that is the thrust of the district courts and injunctive relief So I'd be happy to address any other questions on remedies or charitable trusts

[01:21:42] Speaker 00:
Otherwise, that's all.

[01:21:43] Speaker 08:
I think you've answered our question.

[01:21:44] Speaker 08:
All right.

[01:21:44] Speaker 00:
Thank you, Your Honor.

[01:21:45] Speaker 08:
All right.

[01:21:45] Speaker 08:
Thank you.

[01:21:54] Speaker 08:
Rebuttal.

[01:21:55] Speaker 05:
Thank you, Your Honor.

[01:21:56] Speaker 05:
Four points.

[01:21:57] Speaker 05:
First, the order here is to build 1,800 units of housing on top of the 1,200 units provided by the master plan.

[01:22:04] Speaker 05:
That's 3,000 units of housing.

[01:22:05] Speaker 05:
There's currently about 3,000 homeless veterans in Los Angeles.

[01:22:08] Speaker 05:
So the order essentially is to build housing for every homeless veteran in Los Angeles.

[01:22:11] Speaker 05:
And within weeks of issuing that order, which gave us 12 to 18 months to develop 750 units of supportive housing, the judge was ordering us to build 100 units in a matter of weeks.

[01:22:22] Speaker 05:
So the idea that this is a modest or collaborative process that's going to wind up at a reasonable place is just not supported by the record.

[01:22:28] Speaker 05:
Second point, on the VJRA.

[01:22:31] Speaker 05:
The question under VCS is, does adjudicating the claim require the court to, quote, review the circumstances surrounding the VA's provision of benefits to individual veterans?

[01:22:40] Speaker 05:
The answer is the district court recognized in Valentini is clearly yes.

[01:22:44] Speaker 05:
Plaintiff's argument this morning seems to be that the Rehabilitation Act is not, quote, a law that affects the provision of benefits to veterans.

[01:22:51] Speaker 05:
That's the text of 511A.

[01:22:53] Speaker 05:
That's implausible on its face, and it's inconsistent with the history of the VJRA, as recounted in VCS.

[01:22:58] Speaker 05:
Third point.

[01:22:59] Speaker 08:
Since you're an expert on this, hypothetically, let's assume that the VA isn't doing everything right.

[01:23:08] Speaker 08:
What would they have standing?

[01:23:10] Speaker 08:
How would they sue?

[01:23:13] Speaker 08:
So as to the VJRA... So you're saying they don't have standing?

[01:23:17] Speaker 05:
So the VJRA issue is not a standing issue.

[01:23:19] Speaker 05:
As to the VJRA question, if a veteran thinks that he is being deprived on the basis of disability, of a VA benefit to which he's entitled,

[01:23:29] Speaker 05:
The proper recourse is to go through the VA benefits process to make that claim to VA and to seek judicial review of a denial in the Veterans Court and in the Federal Circuit.

[01:23:37] Speaker 08:
So essentially exhausting the administrative remedies and do that as one person and not as a class, right?

[01:23:43] Speaker 05:
That's right, and that's what the VJRA requires.

[01:23:45] Speaker 05:
The Court and VCS said essentially the same thing.

[01:23:49] Speaker 05:
The third point I'd like to make as to commonality.

[01:23:52] Speaker 05:
My friend this morning characterized the common issues at an incredibly high level of generality.

[01:23:56] Speaker 05:
Is there meaningful access?

[01:23:57] Speaker 05:
What's a reasonable accommodation?

[01:23:59] Speaker 05:
In some Rehab Act cases, those may be adjudicable on a common basis.

[01:24:03] Speaker 05:
But here, given the nature of the claim, they clearly can't be.

[01:24:05] Speaker 05:
Because as I said at the outset of my argument this morning, if I ask you to picture a random member of the class and I say, does that person have meaningful access to his benefits?

[01:24:13] Speaker 05:
You can't possibly know the answer without knowing all sorts of details about the person.

[01:24:17] Speaker 05:
And you can't possibly know what accommodation might be reasonable without knowing all sorts of additional details.

[01:24:23] Speaker 08:
Okay, you need to wrap up.

[01:24:24] Speaker 05:
Yes, and my last point on the existence of a trust.

[01:24:27] Speaker 05:
My friend said this morning the donors had a purpose that the land be used for certain functions and therefore there's a trust.

[01:24:32] Speaker 05:
The law is the opposite as our briefs lay out.

[01:24:35] Speaker 05:
And as to judicial enforceability, I think I heard him relying on the Indian trust cases as sort of setting forth the general test of enforceability.

[01:24:41] Speaker 05:
That's not what those cases do.

[01:24:43] Speaker 05:
Those cases are construing statutes, the Indian Tucker Act and the Little Tucker Act, which provide for judicial enforcement particular obligations in particular circumstances.

[01:24:51] Speaker 05:
The whole problem here is there's not a similar statute providing for judicial enforcement.

[01:24:56] Speaker 05:
Thank you, Your Honor.

[01:25:05] Speaker 04:
Thank you, Your Honor.

[01:25:06] Speaker 04:
Running through the order of how the issues involving UCLA the court could reach, if you reverse on the charitable trust ground and UCLA gets its lease back, you don't need to reach any of the issues UCLA's raised.

[01:25:20] Speaker 04:
If you don't, you do have to look at the question of whether the record permits a finding that UCLA's lease violates not the erroneous provision that they pled, but the provision that applies to the regents.

[01:25:36] Speaker 04:
as you should, that this record does not support such a finding.

[01:25:40] Speaker 04:
You don't necessarily need to reach the motion for intervention.

[01:25:43] Speaker 04:
But if you do, Judge, I just want to give you one record site on your abuse of discretion comment.

[01:25:49] Speaker 04:
On ER page three, the district court says in the motion for intervention, the court found this duty was violated because the predominant focus off the lease was usually a baseball program, not the provision of services to veterans.

[01:26:05] Speaker 04:
That, of course, is the wrong statutory provision.

[01:26:08] Speaker 04:
That's the principal benefit of the lease provision that applies to the other lease.

[01:26:13] Speaker 04:
The regents' provision is based upon all of their activities of the campus.

[01:26:17] Speaker 04:
And that's the fundamental problem in this case.

[01:26:19] Speaker 04:
The only claim that was pleaded was the statutory provision that does not apply to the regents.

[01:26:25] Speaker 04:
That's how the case was tried in the regents' absence.

[01:26:28] Speaker 04:
And then after the regents learns and shows up and says, whoa,

[01:26:33] Speaker 04:
You've got the wrong statutory provision.

[01:26:36] Speaker 04:
Our lease is explicitly authorized by Congress.

[01:26:39] Speaker 04:
The district court doesn't even let them intervene at that point with a clear error of law, statutory misinterpretation.

[01:26:46] Speaker 04:
That is an abuse of discretion.

[01:26:49] Speaker 04:
We don't care which theory the court uses, but there cannot be a situation where a statute explicitly authorizes a long-term lease that continues the use of the property

[01:27:03] Speaker 04:
that's been in place for 50 years.

[01:27:06] Speaker 04:
Congress has specifically authorized this use.

[01:27:11] Speaker 04:
You can't void that lease based upon a trial where the tenant isn't present and the right statutory provision isn't invoked.

[01:27:30] Speaker 03:
So I'd just like to address a couple of the points that were raised by plaintiffs.

[01:27:34] Speaker 03:
First, regarding the question about the section of the lease.

[01:27:37] Speaker 03:
UCLA's lease is issued under section 2B3.

[01:27:41] Speaker 03:
Bridgland's lease is section 2B2.

[01:27:44] Speaker 03:
Those are different sections.

[01:27:45] Speaker 03:
Regarding the OIG report, the OIG determined that the revocable license was noncompliant because it was not, quote unquote, veteran-focused.

[01:27:53] Speaker 03:
There's no such requirement in the leasing act.

[01:27:55] Speaker 03:
That was wrong, and it's for this court, not the OIG, to decide whether the revocable license is correct or not.

[01:28:03] Speaker 03:
Regarding the 97.5% going to Bridgeland, first off, a large portion of that actually goes to the private oil owners.

[01:28:11] Speaker 03:
Bridgeland contains a royalty, and the record is clear at 3ER545 to 546.

[01:28:17] Speaker 03:
Then when oil goes to around $60 to $65, the 2.5% royalty is more than what Bridgeland makes.

[01:28:23] Speaker 03:
That is more profit.

[01:28:24] Speaker 03:
And that's exactly where the oil prices are right now.

[01:28:27] Speaker 03:
So today, the 2.5% royalty is more profit on this well.

[01:28:31] Speaker 03:
than what Bridgeland's obtaining.

[01:28:34] Speaker 03:
And lastly, regarding Mr. Rosenbaum's comments about the rights of Bridgeland to be on the property.

[01:28:41] Speaker 03:
I note that the two acres that he's talking about is what Bridgeland was willing to give up on its drill site that it has through the BLM.

[01:28:51] Speaker 03:
That two acres it was going to give back to the VA so that it could be used for either housing or storage or something else.

[01:28:58] Speaker 03:
Bridgeland currently uses it for storage and was going to move its stuff off.

[01:29:01] Speaker 03:
It has rights to that land.

[01:29:02] Speaker 01:
But it was going to give that up and Judge Carter would still not approve that settlement Thank you Thank you very much I really appreciate that your honor so just one quick clarification this post-judgment settlement agreement that was entered into between Brentwood and the plaintiffs and

[01:29:30] Speaker 01:
Included terms for a new lease that judge Carter reviewed found acceptable and preliminarily approved So I just want to clarify that Judge Carter was not of the opinion that it would be impossible for Brentwood school to have a lease that would comply with the leasing act He did approve preliminary of that settlement agreement that included a new lease Thank you We appreciate that

[01:29:59] Speaker 08:
And court will be in recess till tomorrow at 9 a.m.

[01:30:03] Speaker 08:
Thank you.

[01:30:05] Speaker ?:
All rise.

[01:30:06] Speaker 08:
This court for this session stands adjourned.