VA to appeal federal judge's orders on West LA land

The Department of Veterans Affairs on Friday alerted U.S. District Judge David O. Carter that it will appeal his order to immediately begin buying materials and building 750 housing units for homeless veterans in West Los Angeles, saying it will cause the government agency irreparable harm because of budget constraints.

Appearing in federal court after filing notice regarding Carter's final judgment that ended leases of VA land to public and private parties and ordered construction of thousands of shelters and permanent housing, U.S. Department of Justice attorney Brad P. Rosenberg said one of the main issues the agency plans to address in its appeal is a requirement to execute purchase orders.

"One of the issues that we're going to raise is that paying for these units would constitute an irreparable harm to VA because of the other cuts and impacts on the budget that it will have," Rosenberg told Carter.

"Whether the VA will comply with this court's order, which as I've repeatedly said, it will make every effort to do so, is a different question from the harm that will befall VA if it finds that funding ... What services will need to be cut? What sacrifices will need to be made that could impact veterans?"

The government will also file a motion to stay Carter's order, Rosenberg said.

However, Carter said that until the motion was formally filed, and a 9th U.S. Circuit Court of Appeals decision is rendered, he needs to do what he can to get homeless veterans off the street as soon as possible.

"Right now, I haven't granted a stay, and I can't anticipate what I would do," Carter said. "I truly believe that this is an emergency. I believe inclement weather is coming in and I think that veterans are going to suffer, have hardships and potentially die. Until I get a stay from the 9th Circuit, the case goes forward because I have jurisdiction at the present time."

Rosenberg clarified the agency does not plan to challenge the judge's order that immediately terminated leases the VA negotiated with third parties such as UCLA and the private Brentwood School. The schools are not parties in this case. Powers et al. v. McDonough et al., 2:22-cv-08357 (C.D. Cal., filed Nov. 15, 2022).

"But we do intend to seek a stay of this court's injunction precluding VA from renegotiating those leases," Rosenberg said.

Earlier this month, Carter ordered construction of 750 units of temporary housing to start right away on land that includes the parking lot of UCLA's Jackie Robinson baseball stadium. He said another 3,000 units of permanent housing must be completed by 2030. This includes 1,800 units on top of 1,200 that the VA had already said in 2015 it would build.

UCLA, represented by Reed Smith LLP partner Raymond A. Cardozo, has said in prior court hearings that the university has a valid federal lease for the land that Congress distinctively enacted for UCLA's lease. The school filed a notice of appeal on Oct. 15.

Carter denied UCLA's emergency motion to modify the injunction that cordoned off Jackie Robinson Stadium as the appeal pends. However, Cardozo - who appeared via Zoom on Friday - said UCLA and the veterans' counsel, led by Mark D. Rosenbaum of Public Counsel, have been working on a settlement.

Cardozo also asked Carter if he could immediately modify his injunction to allow the stadium to be used. "If there's an ability to open the stadium through the end of the baseball season, while we're pushing hard on the settlement, we understand it's still, today, not being used," he said.

After allowing the parties to discuss, Carter ordered them to return to his courtroom Monday when the veterans' counsel said they needed more time to discuss the matter with their clients.

According to the VA's attorneys, some 50 housing units that will ship from Arizona are ready to be manufactured within the next two months pending a purchase order that needs at least three weeks to be negotiated.

Carter questioned the scope of the government's appeal plans and asked Rosenberg to clarify. "I thought my order was clear that I was precluding from renegotiating 10-year leases, and that there was every probability and possibility of one-year leases if we aren't using, for instance, or don't need a particular parcel," Carter said.

Carter then asked why the government needed multi-year leases.

Rosenberg responded: "That's not something I'm in a position to get into."

While acknowledging the government certainly had a right to appeal his order, Carter expressed concerns about the government's position because he said it could jeopardize a preliminary approved settlement between Brentwood School and the veterans regarding shared use of an athletic center. A fairness hearing on Brentwood's settlement is scheduled for November.

Brentwood School's attorney, Brownstein Hyatt Farber Schreck LLP partner Jonathan C. Sandler, said the school still plans to move forward despite the government's appeal notice.

"This is coming to all of us at the very last minute. As far as Brentwood's concerned, we have a settlement in place. It's reached preliminary approval. I understand the VA is going to file an appeal and will seek a stay, but Brentwood's going to move forward right now as if the settlement is going to go forward in November and be approved by this court. That is our plan. That's what we want. We think it's in the best interest of veterans and the school."

Carter said he'd be halting the fairness hearing until the VA files its stay motion and he makes a decision.