A federal appeals panel suggests judge overreached in ordering the VA to build housing

A federal appeals panel appeared sympathetic toward a claim that the U.S. Department of Veterans Affairs has failed in its duty to veterans but also raised concerns that a trial judge may have overstepped his authority in a broad order requiring the agency to build more housing on its West Los Angeles campus.

“When you look at things that have occurred on this property, I struggle with how some of the things the VA did benefited veterans at all,” presiding Judge Consuelo M. Callahan said early in the proceeding.

But she added, “I guess the remedies here are what caused me concern, the reach of what Judge Carter [ordered].”

The three-judge panel of the 9th Circuit Court of Appeals heard multiple appeals Tuesday in a complex class-action case in which U.S. District Court Judge David O. Carter invalidated four leases of VA land to private entities including UCLA and a K-12 school, and issued an injunction ordering the agency to build thousands of units of housing to allow disabled veterans to be near the medical services they need.

After a trial last year, Carter ordered the VA to immediately construct 100 temporary housing units on the 388-acre property and plan to add more temporary housing and 1,800 units of permanent housing within six years.

The 9th Circuit stayed that order after the government appealed and scheduled it for an expedited hearing. UCLA, the Brentwood School and oil producer Bridgeland Resources also appealed.

Arguing for the government, Department of Justice appellate attorney Daniel Winik raised numerous objections to Carter’s interpretation of arcane federal regulations, the rules for declaring a class and the nature of a trust.

Overarching all of that, he said, “We believe Judge Carter erred in effectively taking over control of the WLA campus.”

Callahan zeroed in on broad issues in the case: on one hand the veterans contention that the 1888 gift of the land to the federal government created a charitable trust and that the VA had failed to live up to it, and on the other that Carter had gone too far in assuming control over the land.

Looking at the original deed, she said, she had no doubt the property was given for the benefit of the veterans and that the VA had not lived up to that trust, but she worried that Carter’s ruling “may be coloring outside the lines and may be too broad.”

“If we were to uphold this injunction, what would the Supreme Court say?” she asked. “I don’t wake up every day and say I want to be reversed by the Supreme Court.”

The panel will have multiple issues to decide.

On behalf of UCLA, attorney Ray Cardozo argued that Carter erred in enjoining the school from using its baseball stadium on the property even though it was not a named defendant in the case. He asserted its lease is valid because it is authorized by an act of Congress, the West Los Angeles Leasing Act of 2016.

Brentwood School stands behind a separate agreement it had reached with the plaintiffs to expand veterans use of its athletic facilities on the campus, its attorney Eric D. Walther said. Carter tentatively approved that agreement, but the VA rejected it, leaving the school caught in the middle.

Bridgeland attorney Ernest Guadiana said his client’s use of the property is valid because its lease is with the U.S. Bureau of Land Management, not the VA.

The judges several times probed attorneys on how they might uphold portions of Carter’s injunction but restrict his powers.

“The tension here is the specific scope and intention of the injunction is incredibly far-reaching,” Judge Roopali H. Desai said.

“If we leave everything in place, what is Judge Carter going to be doing for the next six years?” Callahan asked the veterans attorney Mark Rosenbaum.

“Well, I think he is going to be busy,” Rosenbaum said. He said the judge would collaborate with VA officials.

“That’s what’s bothering me, that he is running the VA,” Callahan said said. “In collaboration, but is he the final say in that? ... if you get to be the ultimate decision maker, you’re running it. He’s still the king here, or the superintendent.”

In their oral arguments, the attorneys refrained from repeating some caustic language from their written briefs.

The government filing portrayed Carter’s ruling as rife with error and drew comparison to a previous case in which the appeals court found that he had overreached.

In that case, Carter ordered the city of Los Angeles to offer shelter or housing to all homeless people on Skid Row within 180 days.

“But this Court rejected that arrogation of authority, identifying numerous legal errors,” is said. “The district court’s rulings here reflect equally numerous and significant errors.”

Attorneys for the veterans shot back that “the government’s swipes at the District Court ... belittling its reversal on an unrelated case — have no bearing on the questions at issue here.”